Poonam Chopra And Ors. vs Punjab National Bank And Ors.

Ranjit Singh, J

The appellants, who are subsequent purchasers of this property, have filed this appeal to impugn the order passed by the Tribunal below allowing the OA of the Bank holding it entitled to recover a sum of Rs. 10,15,430/- with interest @ 10.75% p.a., from 1st December, 2009 onward till recovery jointly and severally from respondents No. 2 to 5. Since the appellants being subsequent purchaser are not party in the OA, they have filed an application seeking permission to file the present appeal, which is filed with delay of 703 days. Accordingly, two more applications are filed one seeking condonation of delay in filing the appeal and the other for seeking waiver of the requirement of pre-deposit. Respondent Punjab National Bank had filed OA No. 319 of 2009 for recovery of an amount of Rs. 10,15,430/-. The defendants impleaded in the OA failed to appear despite service of notice and were accordingly proceeded ex parte. After recording evidence on behalf of the Bank, which had advanced loan of Rs. 7.26 lacs on 16th February, 2002 for the purpose of reconstruction/remodeling of the house and which the defendants had failed to repay, the Bank had filed the said OA after declaring the account as NPA w.e.f. 31st August, 2006. The respondents had created equitable mortgage of plot bearing No. 155 measuring 133.1-1/3 sq. yards bearing municipal No. WZ-42, situated in Krishna Puri, Street No. 1, Tilak Nagar, New Delhi. The defendants had also confirmed the balance due. On the basis of evidence produced, the Tribunal below had allowed this OA.

The appellants have filed present appeal to impugn this order pleading that they are not related to the advance in any manner as borrower or guarantor. The appellants claim to be bona fide purchasers and in possession of the mortgaged property. It is stated that no notice was served upon them. The appellants would also plead that the Bank did not bother to recover the amount from the guarantor and the borrower. It is also stated that the Bank had created mortgage on the basis of photocopy of the relinquishment deed. As per the appellant, after seeing a notice on the premises which was proclamation for sale, they inspected the original file and filed objections before the Recovery Officer. The objections were dismissed whereafter the appellants approached the respondent-Bank for settlement which did not come through. The appellants accordingly have filed the present appeal.

The Counsel for the appellant would submit that the delay to challenge the order passed in the OA would be on account of the fact that they were not party and have filed this appeal when they learnt about the auction sale of the property. It is seen that the appellants had filed objections before the Recovery Officer which, as per the record, were rejected. The appellants have not disclosed if they had revoked the remedy of filing an appeal against the order passed by the Recovery Officer. Even the order passed by the Recovery Officer is not placed on record. It is also not on record as to on which date the objections were filed by the Recovery Officer and when the objections were rejected.

Therefore, I find that the appellants have not been able to explain this inordinate delay in filing the appeal. Otherwise also, the appellants have purchased the property which is mortgaged with the Bank. This purchase obviously would be with encumbrance. The record would show that the objections filed by the appellants were dismissed by the Recovery Officer on 25th September, 2014. Obviously, the appellants had come to know of the impugned order passed in the OA much earlier. If they had intended to challenge the order passed in the OA, they obviously were required to make such move immediately on coming to learn of the said order. I find that the delay on the part of the appellant to make the present approach has remained unexplained. Even otherwise, the appellants would have no locus to challenge either the security interest created by the borrower or guarantee furnished by the guarantors. The Counsel for the appellants did make an attempt to show that the security interest created in this case was not proper and that the appellants were not served with notice under Section 13(2) of the SARFAESI Act. I find that the appellants have no locus to challenge the order passed in the OA they being the subsequent purchasers. They had adopted right course to file their objections before the Recovery Officer, which have been dismissed. Apparently, the appellants have themselves decided not to pursue their remedy of filing appeal against the said order. The appellants, therefore, cannot be permitted to prosecute the present appeal.

In view of the facts as noticed above, the appeal is accordingly dismissed in limine.