S.K. Arora vs Canara Bank And Ors.

S.N.H. Zaidi, J

This appeal has been directed against the order dated 13.3.2012 of DRT-I, Delhi passed in Appeal No. 11/2012 - S.K. Arora v. Canara Bank and Another, whereby the interim relief sought for by the appellant has been declined. The factual matrix of the case, in brief, is that O.A. No. 19/2001 filed by the respondent bank against the appellant and others for the recovery of Rs. 52,31,741.49 was allowed by the DRT and accordingly the Recovery Certificate No. 290/2002 was issued. In the recovery proceedings the Recovery Officer (RO), vide order dated 4.12.2007, ordered for the eviction of the Certificate Debtors (CDs) from the mortgaged property bearing flat No. 10, Top Floor, Barsati Unit along with 110 sq. ft. open area of property No. S-505, Greater Kailash-II, New Delhi, hereinafter referred to as the property in question. The order of the RO was challenged by the CD/appellant in Appeal No. 38/2007 before the DRT. A company, namely, Himachal Filament Pvt. Ltd. also filed objections against the eviction from the said property claiming to be its lessee on behalf of the CD/appellant, but the objections were dismissed by the RO vide order dated 4.1.2008. The said objector challenged the order of the RO through Appeal No. 6/2008 before the DRT. The DRT, however, dismissed both the aforesaid appeals (No. 38/2007 and No. 6/2008) by a common order dated 24.5.2011. The order of the DRT was challenged by the aforesaid company in an appeal (Inward No. 427/2011) before this Tribunal, but the same was dismissed in default on 17.2.2012.

In the meanwhile, the property in question was put to sale by auction on 23.1.2008 and was purchased by respondent No. 2 for a sum of Rs. 37,16,000/- and the sale certificate was registered in his favour on 11.9.2009. But, since the physical possession of the property in question was with the CDs, the RO appointed Mr. Kapil Rustagi, as a Court Receiver for taking the possession of the property in question and for handing it over to the auction purchaser. Mr. Rustagi, however, did not take the possession because when he visited the property in question, it was not marked as flat No. 10 and an office of Green View Apartment Co. was running in the flat, which was marked as flat No. 11 and the occupants of the flat had claimed them as tenants thereof. As he was discharged on his request, the RO appointed Mr. Yogesh Pachauri, as Court Receiver for the same purpose. He visited the property in question which was locked and though one Joginder Singh, the driver of the CD/appellant, was present but he could not produce the keys. The lock of the flat was got opened by a key-maker, who was arranged by the auction purchaser, in the presence of the bank officials, policemen and several persons. The flat was being used as an office and various furniture articles, computer, TVs, refrigerator, photostat machine, files, books etc. were kept in it. The Receiver prepared the inventory of all those goods and handed over the possession of the flat (the property in question) along with those goods/articles to the auction purchaser.

The CD filed an application before the RO on 13.12.2011 for declaring the proceedings of the Court Receiver as void and for handing over the possession of the flat along with the goods back to him. He moved another application on 28.2.2012 seeking appointment of an architect for identification of the auctioned property. The RO, however, dismissed both the applications vide order dated 28.2.2012 and directed the CD to remove the goods and belongings from the property in question within 15 days, failing which the CH bank was directed to dispose of the same. The CD challenged the said order in appeal No. 11/2012 before the DRT and sought stay of the operation of the impugned order of the RO as an interim relief. The learned DRT declined the interim relief, vide impugned order dated 13.3.2012 passed in the appeal. Feeling aggrieved, the said order has been challenged by the CD in this appeal.

I have heard Mr. U.N. Singh, the learned counsel appearing for the CD/appellant and Mr. Pallav Saxena, the learned counsel for respondent No. 2. Mr. Pankaj Kumar Verma, an officer of the respondent bank, also remained present during the arguments.

Mr. Singh has submitted that the property in question is not identifiable as is evident from the report dated 14.7.2011 of the first Court Receiver that there was no flat marked as No. 10 at the top floor of the building, though an office Green View Apartment Co. was found running in a flat, which was marked as No. 11 and the occupants thereof had told him that it was not Flat No. 1O. According to him, since the property in question was not identifiable, therefore, the second Court Receiver should not have proceeded with the taking of the possession of the flat without first getting the property in question identified and in view of these circumstances the appellant had filed the application for the appointment of an architect for the identification of the property, but the RO failed to properly appreciate the circumstances and wrongly dismissed that application. He also submitted that the second Court Receiver was directed by the RO to deliver the peaceful and vacant possession of the property in question to the auction purchaser and the CH bank was directed to depute one of its senior officers to accompany the Receiver along with the valuer, who had prepared the valuation report of that property at the time of mortgage, as the RO was also satisfied that the property in question was not identifiable on the spot, but the valuer did not go with the Receiver and he, without properly identifying the property in question, got the lock of the flat broken open and as such the Receiver had travelled beyond his authority. He also contended that since the property in question was not identifiable, the lower Appellate Tribunal should have stayed the operation of the order of the RO during the pendency of the appeal, as an interim measure.

Mr. Saxena, however, pointed out that the learned lower Appellate Court, by a common judgment dated 24.5.2011, had dismissed the Appeal Nos. 38/2007 and 6/2008, but the appellant did not challenge the said order qua dismissal of his appeal No. 38/2007, though Himachal Filaments had filed the appeal (Inward No. 427/2011) against the said order qua its appeal No. 6/2008, but the same was dismissed in default on 17.2.2012 and as such the order dated 24.5.2011 had attained finality qua the appellant. He has contended that the appellant had also filed pre-sale. objections before the RO, but no plea or objection with respect to the identity of the property in question was raised by him which shows that the property in question was fully identifiable and the alleged dispute about its identity has been raised only to create hurdle in the delivery of possession to the auction purchaser. He further contended that the appellant had not challenged the auction sale of the property in question in accordance with the rules of the Second Schedule to the Income Tax Act, much less the alleged dispute over its identification. Mr. Saxena also contended that the appellant had created an artificial confusion with respect to the identification of the property in question by marking it as. Flat No. 11. According to him, there is only one flat No. 10, Barsati Unit on the top floor of building No. S-505 in GK-II, New Delhi and there exists no Flat No. 11 in that building as would appear from the Register maintained by the Residents' Association with respect to the payment of the monthly maintenance charges, copy whereof has been filed along with the reply to the appeal, because no such flat number is mentioned in it. He also contended that the respondent/auction purchaser had taken the possession of the auctioned property as per the specification, particulars and description mentioned in the sale notice. Mr. Saxena also contended that the same flat could not have been under the alleged tenancy of both Himachal Filaments Pvt. Ltd. as well as of Green View Apartment Co.

I have given my anxious thoughts to the submissions of the parties' counsel. The parties are not in dispute that the property in question was mortgaged with the bank. There is also no dispute that a Recovery Certificate (RC) was issued by the DRT in favour of the bank for the recovery of its outstanding dues from the appellant/CD. There is nothing on record to show that up to the stage of issue of RC there was any dispute regarding the identity of the mortgaged property. The reports of the Court Receivers do not show that there were more than one flat on the top floor of the building and as such, in my opinion, there cannot be any confusion/dispute regarding the identification of the auctioned property in question. The mere fact that the flat was marked as No. 11, as reported by the first Receiver, cannot be said to be the sufficient circumstance to make the identification of the property in question disputable. The RO was, therefore, right in dismissing the application for the appointment of any architect for the said purpose.

The contention of Mr. Singh that the Court Receiver had travelled beyond the writ/authority by opening the lock of the flat in question is not tenable as the Receiver was duly authorized to hand over the possession of the property in question to the auction purchaser. The Receiver had issued the notices to all the concerned persons, including the CD/appellant. The report of the Receiver, dated 15.11.2011, reveals that the security guard of the building had informed him that the occupant of the top floor had locked the flat just before they (the Receiver and others) had arrived there. The said circumstance indicates that the flat was intentionally locked in order to scuttle the proceedings qua the delivery of possession of the property in question to the auction purchaser and the CD/appellant remained absent deliberately from the spot leaving his driver to keep an eye on the developments. In my opinion, the Court Receiver did not travel beyond his writ in opening the lock of the flat and delivering its possession to the auction purchaser after preparing the inventory of the items found inside the premises. I am also of the considered view that in view of the facts and circumstances of the case, there appears no prima facie case for the interim protection as sought for by the CD/appellant and the lower Appellate Tribunal has committed no wrong in declining the same. Since the order impugned does not appear to be suffering with any infirmity or illegality warranting any interference, this appeal being devoid of any force, is accordingly dismissed with cost.

It is, however, clarified that the lower appellate Tribunal shall decide the appeal without being influenced of any observation made by this Tribunal, which has been made only for the purposes for this appeal to see the appellant's prima facie case for the relief sought for. Copy of this order be furnished to the parties as per law.