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Judgment
Ranjit Singh, J
This case has a chequered history. Despite remaining unsuccessful before the Tribunal below and this Tribunal against the challenge made to the order passed by R.O. rejecting the objections filed by the appellants, they have been able to restart the lis afresh. The appellants, who are the LRs. of a person claiming to be a tenant in the property put to auction and subsequently claimed to have become the owner of the same, are neither the borrowers nor the guarantors for the loan for which this property/shop in question was mortgaged. This property located in Main Gali No. 3, Tilak Bazar, Khari Baoli, Delhi, is a three-storey building consisting of 18 shops. These were mortgaged with respondent Oriental Bank of Commerce in the year 1988 as security for the repayment of the loan which the owner borrower had obtained. Mr. Shanker Lal Jeswani, predecessor of the appellants, statedly was tenant in one of the shops bearing No. 2152 which he had taken on rent in the year 1993, Thus, late Mr. Shanker Lal Jeswani was inducted as tenant in a mortgaged property. The entire mortgaged property was sold by its owner, Smt. Raj Rani, to one Mr. Suresh Mangla on 17.11.2004. Mr. Shanker Lal Jeswani died in the year 2006, leaving behind the appellants as his legal heirs.
The respondent Bank had filed an O.A. in the year 1996 when the borrower Ms. Raj Rani failed to pay the loan which she had availed. This O.A. was allowed in 2006 and R.C. was issued. During execution of the R.C., the entire property was put to sale by way of public auction vide order dated 6.11.2009. This order passed by the R.O. putting the property to auction was appealed against by filing an appeal under Section 30 of the RDDBFI Act. During the pendency of this appeal, the sale was confirmed on 3.6.2010. The present appellants Ms. Sangeeta Jeswani & Ors. filed objections against the order confirming the sale. The R.O. dismissed these objections on 15.12.2011. Against this order, appeals were filed before the Tribunal below on various counts. When these appeals were dismissed, the appellants had filed separate appeals before this Tribunal, being Appeal No. 188/2012 and Appeal No. 142/2013. The appeal filed by Ms. Sangeeta Jeswani before the Tribunal below was dismissed as having been filed with delay which remained unexplained. Both the appeals were dismissed by this Tribunal on 16.7.2014. Aggrieved against this order, the appellants appear to have approached the Hon'ble High Court by filing a writ petition.
As can be made out, the only plea raised by the appellants before the High Court was that they wanted to settle the matter with the auction purchaser. The High Court accordingly had issued notice only to the auction purchaser and while issuing this notice had observed that in case the auction purchaser was not ready and willing to settle the matter, then possibly the only option available with the petitioners would be to claim their right as a tenant under the law. When the writ petition came up for hearing on 24.3.2015, the appellants preferred a miscellaneous application which, in fact, was aimed at seeking review of DRT's order. The Hon'ble High Court accordingly viewed that in the given circumstances of the case the dispute sought to be agitated in the proceeding before the High Court should not be gone into and rather the petitioners should urge all the contentions available to them before the DRT and in case of any grievance, they may seek recourse of all legal remedies. The writ petition was accordingly disposed of.
These two orders passed by the Hon'ble High Court apparently are used as foothold to start these proceedings again before the fora under the RDDBFI Act. Needless to note that such plea, if any, ought to have been raised in the earlier round of litigation when the appellants had filed objections. It is on the basis of these two orders that the appellants first filed their objections before the R.O., invoking their right as tenant in the property in question. The appellants also filed a miscellaneous application seeking review of the order passed in the O.A. in the year 2006, on the ground that the mortgage was created on the basis of forged documents. The appellants also filed application for recall of the order whereby the documents AW-1/17, AW-1/24 and AW 1/25 were exhibited on record of the O.A. The plea by the appellants was that they were not party to the OA filed in the year 1996 and they had no access to the records of the O.A., which they could peruse and examine only after obtaining certified copies when they came to know that a mortgage was created forging signatures of Ms. Raj Rani.
The R.O. has rejected the objections filed by the appellants on the plea of they being tenants, against which appellants filed an appeal under Section 30 of the RDDBFI Act. The Tribunal below has decided the said appeal as well as the miscellaneous application filed by the appellants to seek setting aside or recall of the order dated 16.5.2006 and 8.6.2006 passed in O.A. No. 60/1996. The prayer pressed also was for de-exhibiting the documents exhibited as AW-1/17, AW-1/24 and A W-1/25 on the record of the O.A. This appeal as well as the application has now been dismissed by the Tribunal below. Aggrieved against this order, the appellants have filed the present appeal.
The perusal of the record would show that once the appeals filed by the appellants were dismissed by this Tribunal, the R.O. passed an order on 27.8.2014 appointing a Court Receiver to take physical possession of the aforesaid property which had been sold in auction. The appellants came to file objections before the R.O. for setting aside this order dated 27.8.2014. These objections were dismissed by the R.O. on 27.10.2014 by observing that the appellants had initially filed objections on 19.7.2011 which were dismissed on 15.12.2011. This order had attained finality when the appeals filed before the Tribunal below and before this Tribunal were dismissed. The objections filed by the appellants were accordingly found without basis and were dismissed. Against this order, the appellants filed appeal before the Tribunal below. The appellants had also filed the application for setting aside the orders dated 16.5.2006 and 8.6.2006 passed in the O.A., and another M.A. for issuing direction for lodging FIR and for investigation and for referring exhibits AW-1/17, AW- 1/24 and AW-1/25 to CFL.
The first hurdle which the appellants are required to cross is their right to seek review of the order against which the appeal had been dismissed by this Tribunal. Instead of responding to the query, the Counsel started reading from the application filed before the Tribunal below where reference is made to some judgments of the Hon'ble Supreme Court. The Counsel has referred to that part of the application where it is stated that Exhibits AW-1/17, AW-1/24 and AW-1/25 were neither proved by the maker or by the person who produced. The Counsel reads the part where reference is made to Supreme Court judgment (AIR 1971 SC 1865) holding that mere marking of an exhibit does not dispense with the proof of document. The Counsel also reads that part where it is averred that judgment obtained on the basis of forgery and fraud is nullity and such judgment is to be treated as nullity.
I am unable to appreciate the submission made by the Counsel for the appellants. The appellants are alleging that the signatures of Ms. Raj Rani appearing on documents AW-1/17, AW-1/24. and AW-1/25 are forged. Ms. Raj Rani has made no such plea now or earlier. Such a grievance can be made only by Ms. Raj Rani and not by the appellants. On what basis the appellants are alleging that the signatures appearing on these documents are forged is beyond comprehension. It is being alleged on the basis of copies of the documents. If any allegation of fraud has to be made, it is to be by Ms. Raj Rani. The appellants are neither the signatories nor are concerned with the mortgage in any manner. What locus they will have to make the allegation of forgery? There is no basis. The appellants claim their right only as the LRs. of a tenant. The person who has created mortgage is not saying so but the person who is not in the know of facts is pleading forgery of signatures.
The Counsel for the appellants has made an attempt to show that the documents which are exhibited on record, to support his plea of forgery, but I am not inclined to consider and hear the appellants on this issue as I am clear that the appellants have no locus to plead forgery of a document of which they are neither the author nor are concerned with. The Counsel for the appellants is also unable to explain as to why the plea of forgery had not been raised when the objections were filed in the year 2010. The principle laid down in Order 2 Rules 2, 3 and 4 CPC would directly stare at the appellants. Order 2 Rule 2 CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Thus, where the plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. When a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. The plea of forgery, if available to the appellants, ought to have been raised when they filed objections before the R.O. in the year 2009-10.
In any case, the plea of forgery is simply raised. Who has forged the signatures is not stated. It is the person whose signatures are forged to allege so. If the person mortgaging the property has forged the signatures, then its effect would be different. The appellants certainly are found lacking in locus to raise this plea.
The fresh litigation initiated by the appellants on the basis of the order passed by the Hon'ble High Court, in my view, cannot also rescue the cause of the appellants. The High Court had issued notice limiting it to the auction purchaser to see if the issue could be settled between the appellants and the auction purchaser. When the Counsel for the appellants is apprised that he ought to have pursued his remedy to settle the issue before the High Court, he (the Counsel) concedes that the auction purchaser had declined to settle with the appellants. The observation by the Hon'ble High Court to seek remedy as a tenant would not entitle the appellants to invoke the jurisdiction of the R.O. to seek review of the earlier order. The appellants during the first round of litigation concededly had given up their right as tenant as the predecessor of the appellants had claimed ownership over the property. Now, once the appellants have become owner, it will not be easy for them to switch over and claim that they are tenants. In any case, the tenancy created in the year 1993 was subsequent to the mortgage of the property and thus the right of the appellants, be as tenants or as owners, would be subject to the right of the mortgagee Bank. As tenants, the appellants may not be in a position to invoke remedy before the fora created under the RDDBFI Act as per the law laid down by the Hon'ble Supreme Court in Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd. & Ors., II (2014) CCR 137 (SC) : II (2014) DLT (Cri) 836 (SC) : III (2014) SLT 469 : II (2014) BC 340 (SC). The appellants cannot be heard so far the allegation of signatures being forced is concerned. The prayer to de-exhibit the documents which had been marked as exhibit after being proved, is a prayer which is unknown to law. There is no provision to de-exhibit a document which has been marked as Exhibit. Thus a validly exhibited document cannot be de-exhibited. The only prayer which in such cases can be made is to exclude the documents from consideration if it had been marked as such without proper proof. No such prayer was ever made. Such a prayer would not lie in the mouth of the appellants as they are neither the author of the document nor its author has ever come forward to allege that her signatures are/were forged. The appellants have succeeded in wasting considerable time of various fora. It is high-time now that they are stopped from abusing the process of Courts or Tribunals. They have pursued their adventure too far and too long. The property sold in auction sale long ago and the sale has been confirmed in the year 2010. It is too late now to permit the appellants to pursue this misconceived challenge against the auction sale.
I find no ground to interfere in the impugned order passed by the Tribunal below and would, therefore, dismiss this appeal.