Vimla Naudiyal vs General Manager, Chola Mandalam Investment And Finance Co. Ltd. & Others

Vipin Sanghi, CJ

1) The petitioner has preferred the present writ petition to assail the order dated 06.07.2023, passed by the Debts Recovery Tribunal, Dehradun, in S.A. No. 173 of 2023, titled “Smt. Vimla Naudiyal Vs Chola Mandalam Finance Co. Ltd. and others”, whereby the Tribunal has stayed the recovery by sale of the petitioner’s mortgaged property upon her depositing fifty per cent of the amount within three days.

2) The petitioner is aggrieved, since she has been required to deposit fifty per cent of the outstanding amount, within three days.

3) The case of the petitioner is that she is the owner of the property. Respondent No. 4 is her daughter. Respondent No. 3 is her son-in-law. She claims that respondent Nos. 3 and 4 duped her, and made her to mortgage her property, without her knowledge. She states that she gave the title document of the property mortgaged, and she also states that she went to the bank to sign certain documents. She claims to have learnt of the mortgage only subsequently, i.e., after the release of the loan amount by the respondent-financial institution to respondent Nos. 3 to 5. She claims to have lodged an FIR, alleging fraud by her own daughter and son-in-law.

4) Prima facie, we do not find any merit in this submission. It is not her claim that she is an uneducated lady. It is very convenient for any mortgager to stand up after the mortgage is created, and on that basis the amount has been lend to a borrower, and claim that the mortgage was created under a fraud. There is nothing to suggest that the respondent-financial institution was a party to the alleged fraud. Even if, it is assumed that the petitioner has been defrauded by her own daughter and son-in-law, in these circumstances, the rights of the financial institution / lender, in any event, would be preserved. We may also observe that, we have deprecated the kind of orders passed by the Tribunal in the present case, in several other cases.

5) While dismissing this petition, we reserve the right of the respondent-financial institution to assail the said order.

6) The writ petition is, accordingly, dismissed.

7) Stay Application (IA No. 01 of 2023) also stands disposed of.