Uco Bank vs Dharmendra Deo Choudhary And Ors

P.K. Bhasin, J

As per the affidavit of service filed on behalf of the Bank, only respondent No. 4 has been served. But, she has not entered appearance. The other three respondents have not been served. Respondents 1 and 2 are stated to be the borrowers while respondent No. 3 is stated to be the guarantor. All three of them are stated to be ex parte in the O.A. proceedings.

The present appeal is filed by the appellant Bank against an order of the DRT whereby its application for impleadment of respondent No. 4, Ms. Baby Sharma, was rejected. The Bank's case is that respondents 1 and 2 took a loan from appellant Bank to purchase the property in question from respondent No. 4, Ms. Baby Sharma. The Bank paid the sale consideration directly to Ms. Baby Sharma and she executed a sale deed in favour of respondent No. 1 who, in turn, mortgaged it in favour of the Bank to secure the repayment of the loan amount which the Bank had directly paid to Ms. Baby Sharma, the owner of the property in question. However, necessity to implead Ms. Baby Sharma was felt since she came out with a Securitization Application (S.A.) claiming that she had not executed the sale deed in possession of the Bank showing the property in question to have been sold by her to respondent No. 1. She claimed in her S.A. that she continued to be the owner of the property in question and, at the same time, refuted her liability to pay the amount paid to her by the appellant Bank.

The learned Presiding Officer of DRT-I, Delhi, however, rejected her impleadment in the O.A. with a strange reasoning. The impugned order reads as under:

"I.A. No. 888/2016

Heard learned Counsel for applicant Bank for impleadment of Smt. Baby Sharma as a necessary party as another defendant in the present T.A.

I am of the view that if any order is passed on this IA, it will ultimately affect on the decision of connected S.A. No. 133/2015 (Baby Sharma v. UCO Bank) hence both the matters will be decided simultaneously. Hence, I am not inclined to pass any order on this IA, however, averments of IA may be considered by this Tribunal at the time of final arguments.

With the above said directions, this IA stands disposed off accordingly.

T.A.

Re-list the case on 29.8.2018 for final arguments. Meanwhile parties are directed to file their respective written submissions along with soft copy of the same."

In the aforesaid facts, I am of the view that service upon respondents 1 to 3 can be dispensed with as the parties not contesting the Bank's O.A. and in fact the Counsel for the Bank informs that respondent No. 4 is appearing in the S.A. proceedings which are being taken up simultaneously with the Bank's O.A.

Considering all the facts and circumstances, I am of the view that the impugned order of the DRT cannot be sustained. In the facts and circumstances, respondent No. 4 is a necessary party and, therefore, she needs to be impleaded. The learned Counsel for the appellant Bank is right in his submission that she is playing a game of hide-and-seek in these legal proceedings. Appeal succeeds and the impugned order is set aside. Respondent No. 4, Ms. Baby Sharma, will now stand impleaded as defendant No. 4 in Bank's O.A. and the Bank will be at liberty to amend its O.A. with consequential changes therein concerning this newly added defendant.

On the next date before the DRT, amended O.A. shall be filed by the Bank and no further time for that purpose shall be granted by the DRT. Thereafter, DRT will issue notice of the O.A. to the newly added defendant, Ms. Baby Sharma, and since her own S.A. is also pending before the same DRT, it will not be difficult for the DRT to ensure her presence in the O.A. as well. The appellant's prayer for consolidation of proceedings, however, can be made before the DRT at the first instance and if made, the same will be considered by the DRT in accordance with law.

The matter shall now be taken up by the DRT on 10.9.2018, the date already fixed in the O.A.