Poonam Singh And Ors vs Corporation Bank And Ors

P.K. Bhasin, J

In this case, the appellants herein had initially filed one S.A. under Section 17(1) of the SARFAESI Act against Corporation Bank and respondent Nos. 3 and 4 herein to protect the property in question from being taken over from them by Corporation Bank for the recovery of the outstanding dues from respondent Nos. 3 and 4 herein. The appellants had filed the said S.A. claiming that they could not be dispossessed from the property by the Bank in exercise of its powers under the SARFAESI Act as, in fact, the loan taken by respondent Nos. 3 and 4 was actually being repaid by the appellants because they were the beneficiaries of the loan taken by respondent Nos. 3 and 4. It was also the contention of the appellants that the intention of respondent Nos. 3 and 4 became bad thereafter and they started making attempts to dispossess the appellants from the property with the help of the Bank. In their S.A., the learned Presiding Officer, while disposing of the S.A. vide order dated 12.4.2017, directed the Bank to return the title deeds in respect of the property in question to the present appellants subject to their securing the entire dues of the Bank. The appellants were given three months' time to clear the Bank's dues. However, before they could make the entire payment, which the appellant claim that they are ready to make even today, respondent Nos. 3 and 4 filed an S.A. impleading Corporation Bank as well as appellants. In that S.A. the same learned Presiding Officer who had passed order dated 12.4.2017 in appellants' appeal recalled that order at an interim stage, when respondent Nos. 3 and 4 had moved a miscellaneous application, even before adducing evidence by the parties. Feeling aggrieved by this kind of passing interim order by the learned Presiding Officer in the S.A. of respondent Nos. 3 and 4, reversing the final order passed by him in appellants' S.A., the present appeal has been filed. After hearing the Counsel for the parties, it appears that there is some dispute between the appellants and respondent Nos. 3 and 4 inasmuch as that even though title deeds in respect of the mortgaged property is in the name of respondent Nos. 3 and 4, appellants claim that they are in fact de facto owners and that is why they had been making payment in instalments towards liquidation of the lean account of the respondent Nos. 3 and 4. The appellants are saying that they are ready to clear the entire dues of the Bank, so are respondent Nos. 3 and 4. The question which calls for consideration is whether the learned Presiding Officer was justified in reversing his order passed in appellants' S.A. in the S.A. of respondent Nos. 3 and 4, particularly, when respondent Nos. 3 and 4 had not even moved any application in appellants' S.A. for recall of the order dated 12.4.2017. The learned Presiding Officer has in the order running into 8 pages has gone into the facts pleaded by the security applicants, respondent Nos. 3 and 4 herein, to the effect that in fact the appellants herein were the tenants in the property in question and they had claimed that they were simply remitting the rent payable to respondent Nos. 3 and 4 to the Bank and the Bank was accepting the same towards repayment of the loan money. While passing the impugned order, the learned Presiding Officer has accepted the contention of the respondent Nos. 3 and 4 herein that the order dated 12.4.2017 had been passed behind their back without notice to them.

In my view, the learned Presiding Officer was not justified in passing the impugned order since in the S.A. of respondent Nos. 3 and 4 he was not sitting in appeal against his own order passed in appellants' S.A. and in case these kind of orders are sustained, there will be total uncertainty and no finality in respect of rival claims of the litigants. No doubt, in the impugned order the learned Presiding Officer has also observed that the order dated 12.4.2017 had been obtained by the appellants herein in their S.A. without serving any notice on the respondent Nos. 3 and 4 herein, but, in my view, it should have been seen by the learned Presiding Officer in the appellants' S.A. as to whether respondent Nos. 3 and 4 herein had been served or not and if it had been found out that there was no service upon respondent Nos. 3 and 4, the Presiding Officer himself ought not have passed that order. However, since that order is not subject matter of challenge before this Tribunal, this Tribunal cannot make any comment as to whether that order had been passed without any service upon respondent Nos. 3 and 4 herein as is being claimed by them. Nor has in fact the learned Presiding Officer observed so even in the order passed in the present S.A. after calling record of the appellants' S.A. This appeal, therefore, deserves to be allowed and is accordingly hereby allowed. The impugned order passed by the DRT reversing the order dated 12.4.2017 passed in S.A. No. 56/2017 filed by the appellants is set aside,

Since the S.A. of respondent Nos. 3 and 4 is still pending, the learned DRT will now proceed with the same in accordance with law.