Prathiksha Shukla vs Authorized Officer, The South Indian Bank And Ors.

1) The present SA is filed by the Applicant, challenging the impugned sale notice dated 10.08.2020 issued by the 1st Respondent Bank vide Annexure-All with respect to the

REASONS

5) The Applicant herein has filed the present appeal, challenging the sale notice issued by the Respondent No.1 in respect of property mortgaged by Respondent No.2 in favour of Respondent No.1 for the loans availed by Respondents No.2 to 9 in the year 2015. The Applicant claims that in Item No.1 of the schedule property, she has a share and she has filed a suit in O.S.No.1234/2019 for partition which is pending and an order of status quo is passed therein against Respondent No.2. She has further stated that she has also made an application to make Respondent No.1 Bank as a party to the proceedings, which is pending and notice of the same has been served on the Respondent No.1. The basis of the claim made by the Applicant is on account of the purchase of the property in the name of Respondent No.2 on 20.02.1992 when Respondent No.2 was a minor and hence represented by her guardian and mother Susheela R Baliga as per Annexure-A2 produced by the Applicant in the appeal. The Applicant has stated that the property was purchased by grandfather of the Applicant though the sale is in the name of her elder sister and such purchase by grandfather was from and out of joint family income and therefore she is entitled to a share in Item No.1 of the property. Copy of the sale deed produced by the Applicant does not corroborate any of the contentions raised in the appeal except that the property in Item No.1 is purchased in the name of Respondent No.2 on 20.02.1992 and Respondent No.2 who was minor then was represented by her guardian and mother Susheela R Baliga. Further, the 4th para on page 3 of the copy of the sale deed contains a covenant as under:

"The vendor assured and covenants with the purchaser that the purchaser shall hold and enjoy the schedule property forever as his self acquired property and can put up any construction over the same." and there is no covenant or clause supporting the cause of the Applicant herein or averment to show that the proceeds of the sale consideration is from joint family property. It is also to be noted that the Applicant is stated to be of the age of 27 years and the sale deed in question was executed over 28 ½ years before. So, at the time of execution of sale deed, the Applicant was not born and the Applicant even after attaining majority has not immediately challenged the mortgage of the property made by Respondent No.2 in the year 2015. Even the partition suit appears to have been filed in 2019 and from the facts of the case, it is clear that borrowings were made by Respondents No.2 and others in 2015 for which security interest was created by mortgage of Item No.1 of the property on 17.01.2015. Subsequently, the loan account became NPA and bank initiated recovery proceedings in 2017 and issued possession notice in 2019 and all these while, the Applicant has not chosen to challenge the mortgage created by Respondent No.2 and has filed the present appeal only after sale notice has been issued by Respondent No.1 and notice sent to Respondents despite having been, inter alia, served on Respondent No.2; Respondent No.2 has not chosen to appear and contest the appeal would all go to show that the claim made by the Applicant herein is not bona fide and is made probably in collusion or connivance with Respondent No.2 to defeat and/or delay the enforcement of security interest by Respondent No.1 for recovery of the outstandings owed by Respondents No.2 to 9. During the course of hearing, Learned Counsels for both sides advanced the arguments in support of the contentions and pleadings taken up in their respective pleadings and the Learned Counsel for Respondent Bank would argue that the Applicant has not produced any proof to show that the property purchased was out of the joint family income or estate. Further, he would argue that Respondent No.2 under Section 14(1) of Hindu Succession Act, 1956 is absolute owner of the Item No.1 of the property and the claim made by the Applicant herein is at the behest of Respondent No.2 who has absented herself from the proceedings. It is also to be noted that there is only status quo order against Respondent No.2 by the civil court and not against Respondent No.l. It is also to be noted that the property was mortgaged by Respondent No.2 in favour of Respondent No.1 for the loans availed in January 2015, much before institution of suit by Applicant against Respondent No.2.

6) A careful consideration of the foregoing would make it clear that the Applicant has failed to establish any right in respect of Item No.1 of the schedule property and the claims and contentions are not backed with any evidence as the Applicant failed to prove that the said property was purchased out of joint family income or estate. On the contrary, Respondent No.2 is found to be absolute owner of the Item No.1 of the schedule property under Section of the Hindu Succession Act, 1956 and has rightfully mortgaged the same to Respondent No.1 as security for the loans availed. Thus, the appeal filed by the Applicant is a belated attempt to thwart the enforcement of security interest on schedule property in collusion with Respondent No.2 which cannot be permitted. For all these reasons, the appeal is found to be not sustainable and therefore liable to be dismissed. Consequently, I.A.No.1350/2020 for stay filed by the Applicant is also liable to be rejected and is therefore rejected. I, therefore, pass following:

ORDER

In the result, S.A.No.169/2020 and I.A.No.1350/2020 are dismissed.

Interim order, if any, stands vacated and pending IAs, if any, stand closed as infructuous.

There will be no order as to cost.

(Dictated to the Stenographer, after its transcription and necessary corrections, signed and pronounced by me in the Open on this 21st day of September 4, 2020)