Raj Pal Singh vs Syndicate Bank And Ors.

Ranjit Singh, J

This appeal filed, in the year 2010, has passed through many phases. It is one of those rare appeals where this Tribunal undertook to record evidence by summoning a witness. All this has been done but somehow the application seeking condonation of delay is still pending undecided. This aspect is pointed out by the Counsel for the respondent Syndicate Bank though he had all along been appearing in the case when it had been earlier heard on merits on a few occasions. In this background, it may not be appropriate now to dislodge the appeal only on the technical ground that there is a delay in filing the appeal. An application for condonation of delay in filing the appeal is filed by the appellant along with the appeal stating that delay is of three days. As is evident from this application, the appellant had collected the order on 23.3.2010 and filed the present appeal on 27.4.2010.

The Counsel for the respondent Bank, however, would point out that impugned order is dated 16.11.2009 and that merely because the appellant did not collect the order would not extend the limitation to file the appeal and therefore, the appellant is required to explain the delay from the date of the order, i.e., 16.11.2009. The application filed by the appellant is blissfully silent on this aspect. Indeed, the order impugned is dated 16.11.2009, but the certified copy would show that the same was prepared on 25.1.2010. This could thereafter be despatched only on 23.3.2010. This aspect would show that perhaps free copy could only be collected on 23.3.2010 and was not despatched as such. Keeping these facts in mind, I am of the view that the delay has sufficiently been explained and accordingly delay in filing the appeal is condoned,

When the appeal was filed, notice in this appeal was issued an 17.5.2010 and record of the Tribunal below was summoned. After fixing a few dates, on 11.6.2010, time was given to the Counsel for the respondents to file counter affidavit. The case was then adjourned for final argument to 29.6.2010. On this day, the case had to be adjourned as the counter was not filed. After completion of pleadings, the case was heard on 23.9.2010. Keeping in view the pleas raised before this Tribunal, both the parties were directed to produce the concerned Halka Patwari on the next date of hearing. Halka Patwari was directed to appear with all the relevant Revenue records. On 12.11.2010, Mr. Subodh Kumar, Halka Patwari appeared and was partly examined. He did not produce the entire record. The said witness was directed to find out where the plot Khasra No. 299 was situated. He was required to give the names of other persons having property around the boundary of plot comprised in Khasra No. 299. He was partly cross-examined on his deposition. On the next date fixed, i.e., 21.12.2010, no one appeared on behalf of the appellant. The Tribunal waited for the appellant till 1.20 p.m. and then dismissed the appeal in default.

Appellant, thereafter, filed an application for recalling the said order accordingly the appeal was restored on 11.1.2011 by imposing a cost of Rs. 3,000 which was ordered to be adjusted towards the loan amount.

When the cross-examination of the Halka Patwari was about to commence, the Counsel for the respondents pointed out that he was not the person who prepared the report called by the Tribunal. The report, in fact, was prepared by Mr. Ravinder Kumar, Patwari, This Tribunal accordingly summoned Mr. Ravinder Kumar to appear on 1.2.2011. The case could be taken up thereafter on 4.3.2011 when Mr. Ravinder Kumar appeared and was subjected to cross-examination. After concluding the cross-examination on 8.4.2011, the Counsel for the respondent Bank prayed for an adjournment on the ground that he wanted to move an application for appointment of a Local Commissioner.

The application was accordingly filed and notice was issued, The said application was, however, dismissed as not pressed on 20.12.2011. The case, thereafter, was adjourned on numerous occasions. In between, some documents were also taken on record. That is how the case has bean pending before this Tribunal. On few occasions, the case had to be adjourned as the issue whether delay in filing the appeal against the order passed in S.A. can be condoned or not was pending consideration before this Tribunal. This Tribunal has held that it has power to condone the delay in filing such appeal. That is how the delay in filing the appeal has been condoned as noticed above.

The facts as can be discerned from the record show that one Mr. Laxman Singh s/o Tej Ram had approached the respondent Bank for a housing loan of Rs. 5.76 lacs in the year 2006. Bank has claimed that Mr. Laxman Singh mortgaged his property along with the title deed of Khasra No. 299 situated in Laldora of village Mukhmelpur, Delhi. When the official of the Bank along with the Receiver appointed by the Court went to seal the property, the appellant herein objected to the move stating that the property in question was not Khasra No. 299 but was Khasra No. 329. As per the appellant, he pointed out that even the area was different so too the area of the properties as Khasra 329 measured 120 sq.yds whereas Khasra 299 measured 150 sq.yds. Appellant would urge that Khasra 299 was in Laldora whereas Khasra 329 was agricultural land. The Bank official and the Receiver still sealed the property. The appellant, besides initiating move for action against the Bank officials and Receiver also filed the S.A. which was disposed of on 16.11.2009, and hence he has filed the present appeal.

The stand of the Bank is that the appellant had not approached the Tribunal below with clean hands. It is alleged that the appellant is making an attempt to grab the property of borrower Laxman Singh which he (Laxman Singh) has mortgaged with the Bank. Appellant has relied on a power of attorney, agreement to sell as well as sale deed executed by Gayase Ram s/o Yad Ram which are substantive documents.

Laxman Singh (respondent No. 2), in his reply filed before the Tribunal below had pointed out that the appellant is not the owner of the said premises. He had termed the appellant to be a trespasser who has occupied the property forcibly in connivance with Mr. Gayase Ram. As per respondent No. 2, the documents submitted by the appellant are all forged, fabricated and manipulated. As per respondent No. 2, he had purchased this property from Mr. Gayase Ram vide registered sale deed dated 11.8.2006. Appellant is stated to have given his wrong address as he is residing at the suit property prove its assertions, the Bank had placed the sale deed executed by Mr. Gayase Ram in favour of Mr. Laxman Singh for sale consideration of Rs. 50,000/-. Sale deed was proved to have been entered in the additional book No. 1 Volume No. 397. Respondent No. 2 is shown as resident of 234 Village Mukhmelpur, Delhi and sale deed was in respect of build up property measuring 150 sq. yds. out of Khasra No. 299 situated in old Laldora of Abadi of the village. The Tribunal has found that before sanctioning the loan in favour of said Mr. Laxman Singh, the Bank had obtained the opinion of M/s. Libra Associates, Chamber No. 561, Criminal Wing (Western Wing), Tis Hazari, Delhi on 22.8.2006. The legal opinion was in favour of the Bank which needed this property as security interest, which is now claimed by the appellant.

Before accepting this property to secure the loan, Bank had also obtained opinion of Mr. R.K. Goel, the empanelled valuer of Bank regarding the prospective market price of the property of Mr. Laxman Singh which was bounded by the properties of Mr. Harkesh Lal and Mr. Jeewan and being with the right to passage available in the southern portion of itself. Valuer assessed the property to be valued at Rs. 13 lacs. The valuer Mr. Goel had seen the property which was single storeyed residential building with the roof right to cover 150 sq.yds. The house situated at the above address was described by Mr. Goel as house constructed after employing labour directly in the year 2001. Mr. Raj Pal Singh, s/o Shri Mukund Singh, resident of the house bearing No. 365, Nehru Enclave, Alipur, Delhi has claimed to have purchased the property on 13.8.2007 through general power of attorney on a nonjudicial stamp paper of Rs. 50/-. Agreement to sale was also on non-judicial stamp paper purchased on 10.8.2007 and the sale consideration shown is Rs. 1,20 lacs. This sale is also executed by Mr. Gayase Ram.

As can be noticed from the record, said Mr. Raj Pal Singh had entered into an agreement to sell as well as general power of attorney on 13.8.2007. The sale deed conveyed by Mr. Gayase Ram disclosed his place of residence being the house No. 101, Village Mukhmelpur, Delhi whereas Mr. Raj Pal Singh has shown his house number as 365, Nehru Enclave, Alipur, Delhi on the xerox copy of the general power of attorney as well as the agreement to sell the Tribunal could not find actual place where Mr. Gayase Ram resided though the figurative description of Mr. Gayase Ram as made known described him with the large forehead accompanied by the little hair and having the little must ache on his face. Finding by the Tribunal is that the appellant did not/could not produce the said required documents. The Tribunal below has noticed that Mr. Rajpal though delivered possession letter but was not found to be resident of the disputed property. It would thus mean and show that Mr. Rajpal had acquired the property, which was mortgaged with the Bank and the Bank's asset, during the subsistence of the security interest from a person who was not the borrower to the Bank. To substantive its stand in the S.A. filed by the appellant herein, the respondent Bank had brought before the Tribunal 12 photographs. The Bank had also claimed that it had taken physical possession over the part and parcel of the property consisting of land measuring 150 sq.yds. out of Kasra No. 299, situated in old Laldora, Abadi of village Mukhmelpur, Delhi. On the north side of this property was the house of Mr. Jeewan Ram and its eastern side is the captioned property of Mr. Laxman Singh which is adjacent to Mr. Harkesh Lal's property. The Tribunal below accordingly considered if the Bank could take possession of the above property.

To satisfy the Tribunal, the Bank had placed before it the sale deed executed on 11.8.2006 by Mr. Gaiase Ram, s/o Mr. Yad Ram in favour of Mr. Laxman Singh, s/o Mr. Tej Ram. As noted above, this sale deed had been executed for an amount of Rs. 50,000/- and was on non-judicial stamp paper of Rs. 4,000/-. The sale deed had been registered before the Sub-Registrar, Sub-District No. VI, Pitam Pura, Delhi. This sale deed bears registration No. 1, Volume No. 397 and has stated to be covered by Pages 28 to 31 on and from 11.8.2006.

The Tribunal thus considered the pleas in the S.A. and the material placed before it. Mr. Raj Pal Singh was found to be a resident of Nehru Enclave, Alipur whereas the Bank had submitted photographs and valuation report of Mr. Goel which, as per the Tribunal, did provide help to arrive at the conclusion that the property had been constructed within the a period of less than 10 years. Water soaking was evident from photograph and thus the Tribunal could rule out the claim of the appellant that the construction was carried out after purchase in the year 2007.

The Tribunal below has also noticed that Mr. Laxman Singh was real brother of Mr. Gayase Ram. Mr. Laxman Singh was the borrower. The Bank had served notice under Section 13(2) on 14.8.2007. The amount due was Rs. 6,15,234/-. The Tribunal held that it did not recognise the general power of attorney and agreement to sale as document paramount for the purpose of Sections 54 and 55 of the Transfer of Property Act. The Tribunal has held that the secret clandestine relationship between the petitioner. Mr. Gayase Ram and Mr. Laxman Singh had been unearthed. Finding that the Bank's claim had not been satisfied by Mr. Laxman Singh, it did not find any substance in the petition filed by the appellant.

The Tribunal has also noticed that the Counsel appearing for Mr. Laxman Singh has stated before the Tribunal below that if the possession is restored to Mr. Laxman Singh by the Bank, he would pay the amount to the Bank. Turning down this request, the Tribunal directed Mr. Laxman Singh to pay the amount within a period of 90 days along with 10% simple reducing balance based interest on the above said amount of Rs. 6,15,234/- till full payment, but not beyond 28.2.2010. On Mr. Laxman Singh paying the above amount by the date given above, the Bank was to issue No Due Certificate in respect of the above said account. Further Mr. Laxman Singh was to be put into possession of the property within above time-limit and otherwise Mr. Laxman Singh was given liberty to fake necessary police help.

The Tribunal has further held that if the Bank is not paid its amount even after the above date, the Bank would give another 30 days to the petitioner (Mr. Raj Pal) who was termed as stranger and trespasser into the secured asset to clear the above amount by 31.3.2010. If no one paid this amount, the Bank was directed to serve 30 days' notice for selling the above said secured asset. The Tribunal otherwise did not find any strength in the petition filed by Mr. Raj Pal Singh which called for any interference in the action taken by the Bank. Against this order, Mr. Raj Pal Singh has filed the present appeal.

Mr. N.S. Dalal has been appearing for the appellant in this case. It is noticed that on numerous occasions Mr. Raj Pal Singh had appeared in person and has prayed for adjournment due to non-availability of his Counsel. On 8.7.2013 the appellant has prayed for adjournment on the ground that his Counsel is held up in the High Court. Same prayer was repeated on 7.11.2013, which was the next date, On 7.3.2014 the case was adjourned on the request made by the Counsel. On 7.5.2014, arguments were addressed by the Counsel for the appellant but the case had to be adjourned as the Counsel for the respondent was not present. On the next date, the case was rolled over to the next date. On this date it was pointed out that an application seeking condonation of delay was still pending. The case had to be adjourned as the issue whether the delay in filing appeal against the order passed in S.A. could be condoned or not was under consideration. Thereafter, the case was adjourned to 23.7.2014 but it had to be adjourned after having been called thrice on request made by the appellant that his Counsel is busy in the High Court. The case was, thereafter, taken up on 24.7.2014 when Mr. Raj Pal Singh is present to repeat his request often made that his Counsel is held up in the High Court. Counsel for the respondent Bank has made his submission. No submission otherwise on behalf of the appellant is made. The case was reserved for passing order.

I have gone through the record as well as the material which is available. I have also examined the evidence which was recorded by this Tribunal. Mr. Subodh Kumar, Halka Patwari, who appeared on 12.11.2010 has deposed that the property comprised in Khasra No. 329 was owned by Forest Department and thus did not belong to any individual person. The property comprised in Khasra No. 299 was said to be belonging to Laldora of the village. House situated at Khasra No. 329 was said to be possessed by Mr. Raj Pal. It was stated that Mr. Raj Pal does not own any house in Khasra No. 299. In response to the cross-examination, this witness stated that the appellant has illegally trespassed into the house situated in Khasra No. 299.

Mr. Ravinder Kumar, Halka Patwari, had prepared the report at CW-1/A. This witness has stated that he had seen the loan document before preparing the report. The loan was given in respect of land which is situated within Laldora and the property in question Khasra No. 329 is situated outside the Laldora. This witness stated that he has seen Khasra No. 299 on which the loan has been given by the Bank. Witness had also stated that the Bank had given loan in respect of this land though he did not make any mention to directions in his report. During his cross-examination by Counsel for respondent No. 2, the witness answered that the sale deed dated 11.8.2006 where the vendor is Laxman Singh is situated within the area of Laldora. The boundaries which were mentioned in the report was said to be outside Laldora area. The witness accepted the suggestion that the direction given in the sale deed pertains to the land where Mr. Raj Pal Singh is residing. These directions pertain to Khasra No. 299. The witness also accepted that the direction given in the GPA in respect of eastern side is incorrect. A per the witness, in the GPA it was mentioned as Tej Ram who is the father of Laxman. The witness agreed that in the GPA the house of Harkesh on the western side is correctly mentioned. As per the witness, on the northern side it was the house of Jeevan Ram. The witness did not know whether Jeevan Ram is son of Mrs. Parbhati. The sale deed had mentioned wrong direction as per the witness. The witness could not tell about the location of the house shown to him in the photograph. The witness otherwise expressed his ignorance if any FIR had been alleged though the paper furnished to him included a copy of FIR. He denied suggestion that he did not go to the spot or has made the statement at the behest of the appellant.

On the basis of evidence, an attempt was made to show that the finding recorded by the Tribunal below may not be justified. I have examined this issue and I have not been able to persuade myself to take any different view. The Bank had taken sufficient precautions white advancing loan and securing it after obtaining valuation as well as other details. The Tribunal below has rightly considered the evidence. The fact that the Bank had taken possession of the property on which the appellant has trespassed into the property cannot be easily ignored. It is not without any reason that the Bank had even lodged an FIR immediately on the day when the appellant had taken this action. I have to notice with concern that after lodging the FIR the Bank has not really taken any action to dispossess him from the property in accordance with law and take possession of the property to which it is entitled to, Even if there is a dispute in regard to the property in question, it would not give any licence to the appellant to take forcible possession thereof by trespassing into the property in question. Such a person who has violated law and has taken law into his hands cannot seek protection from the Court of Law. A person who is guilty of committing criminal misconduct ought not and should not have been heard. Otherwise, the appellant has not been able to point out any document or material on record which can justify his claim. The Bank has been able to establish its claim on the basis of its reliable and cogent evidence and, therefore, the finding recorded by the Tribunal below are well-reasoned and well-supported by evidence and material on record. I am of the considered opinion that no interference in the finding recorded by the Tribunal is called for.

The appeal is accordingly dismissed as it lacks any merit.