Rajo Devi vs Canara Bank And Ors.

P.K. Bhasin, J

I have heard the Counsel for the parties.

The appellant is unsuccessful applicant in a securitisation application under Section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act) which she had filed before DRT, Delhi to protect her property from being sold by respondent Canara Bank to recover its money which it had allegedly lent to respondent No. 2 herein and repayment whereof was secured by way of equitable mortgage by the appellant in respect of her immovable property. She had in her SA denied having created any mortgage and her case was that she had obtained a small loan of Rs. 5 lacs from one person (respondent No. 3 herein) known to her and at that time he had taken her title deed. Thereafter, despite her having cleared his loan, the title deed was not returned to her but mischievously deposited the same with Canara Bank from whom he had obtained some loan and thereafter defaulted in repaying that loan amount, which resulted initiation of securitization proceedings against the borrower as well as against the appellant being mortgagor. Appellant challenged the entire actions taken by Canara Bank in respect of her property. The record of the DRT shows that the Bank did not file any reply to the SA. However, its reply as well as the replication thereto are available on record, but that fact is not recorded in any of the proceedings of the DRT. There is no order of the DRT showing that parties were given opportunity to adduce evidence as provided under Section 17(3) of the SARFAESI Act and on 24.7.2012, all of a sudden, the learned Presiding Officer of the DRT reserved the matter for pronouncement of the final order. On 16.8.2012, the final order came to be pronounced by the DRT which is now under challenge in this appeal. A perusal of the impugned order of the DRT shows that the learned Presiding Officer, while rejecting the S.A. of the appellant, has observed that the Bank had convincingly established the availing of the loan by the present appellant and that the appellant was one of the guarantors and she had also deposited original title deed with the Bank in order to create equitable mortgage in respect of the property in question. It is further recorded by the learned Presiding Officer that the Bank had produced the loan account in respect of the loan transaction and that on going through the materials available, the case put forward by the applicant could not be accepted and further that the Bank being a nationalized Bank there is no necessity for the Bank to institute a false case against the appellant herein.

When the entire record of the DRT which was called for by this Tribunal was shown to the Counsel for the Bank to point out as to which material the Bank had placed on record to convincingly establish that the appellant herein had created mortgage and had also given her guarantee for the repayment of the loan to the, borrower, the learned Counsel submitted that in fact there is no such material filed by the Bank and that was in fact so because the appellant herself had not adduced any evidence. Thus, it stands admitted on behalf of the Bank that the observation of the learned Presiding Officer in the impugned order that on the basis of material available on record the Bank's case stood convincingly established, is factually incorrect.

In my view, simply after going through the DRT's record I am convinced that the S.A. was not dealt with in a proper manner and it was disposed of by adopting a casual approach.

However, this will not entitle the appellant to have a declaration from this Tribunal that she is not actually liable to pay any money to Canara Bank. This will have to be determined after giving opportunities to both the parties to adduce evidence, which prayer has been made today by the parties' Counsel also and Counsel for the Bank submitted that he will place on record all the loan documents to prove the same. Counsel for the appellant has submitted that the appellant had not entered into witness box because the Bank had not placed any document allegedly executed by her and, therefore, if the Bank places on record necessary documents, she will avail opportunity to refute the genuineness of those documents.

The impugned order is accordingly set aside. The matter is remanded back to the DRT with a direction to dispose of the S.A. afresh after giving opportunity to both parties to adduce their respective evidence. It is needless to state that fresh order shall be passed uninfluenced by anything said in the impugned order passed without there being any material available on record.

In case the appellant makes any prayer before the DRT for interim relief, the same shall be considered in accordance with law. If at all the appellant is to make any prayer for interim relief, the same shall be made within 15 days and the interim order which was passed by this Tribunal to the effect that the appellant would not be dispossessed from one room and one toilet, shall continue till the DRT takes a decision on the fresh prayer for interim relief, if it is made.

The parties shall now appear before the DRT at 2 p.m. on 23.3.2017 for receiving further direction. The record of the DRT be returned along with copy of this order to the DRT forth with.