Allahabad High Court
Anita Rani vs Tarun Kumar Saini on 1 August, 2022
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 4
Case :- FIRST APPEAL FROM ORDER No. - 1580 of 2022
Appellant :- Anita Rani
Respondent :- Tarun Kumar Saini
Counsel for Appellant :- Nipun Singh
Counsel for Respondent :- Aditya Kumar Singh
Hon'ble Siddhartha Varma,J.
Heard Sri Nipun Singh, learned counsel for the appellant, Sri Aditya Kumar Singh for the respondent and Sri K.M. Asthana for the Canara Bank.
The appellant is the mother of Kanika Saini, Swati Saini and Arunansh Saini. After the death of her husband and the father of Kanika Saini, Swati Saini and Arunansh Saini, the loan which the father had taken after mortgaging certain properties became overdue and, therefore, the appellant-Anita Rani intended to sell off the properties which belonged to the husband and which had now been inherited by the appellant and her children. To sell off the property, the appellant filed an application under the provisions of sections 7, 10, 29, 31 and 23 of the Guardian and Wards Act, 1890. When this application was dismissed vide order dated 30.5.2022, the instant First Appeal From Order was filed.
A perusal of the order passed by the learned District Judge, Muzaffar Nagar reveals that the permission was not granted on account of the following reasons :-
(i) The Canara Bank and Gulshan Mercantile Urban Cooperative Bank Ltd. from whom the loans were taken had not been impleaded as parties in the application;
(ii) There was a possession notice being Paper No.5-Ga/15 whereby it was evident that Rs.1,90,37,238/- were still to be paid by the appellant. Furthermore, it was evident from the possession notice that the appellant and the public at large had been warned that they were not to enter into any negotiations with regard to the property mortgaged;
(iii) The District Judge had also refused the permission on account of the fact that the appellant had not been able to show as to how many members the M/s. Sitaram Krishan Gopal Nakli Singh Saini Educational Trust had. Further, it was stated that no document had been brought on record to show as to what was the economic viability of the Trust; and
(iv) The District Judge had refused the permission saying that the appellant had not filed the present and the earlier Income Tax Returns to show as to what was the market value of the mortgaged property.
When the case was argued on the last occasion, the Court had permitted learned counsel for the appellant to serve a copy of of the appeal on the learned counsel appearing for the Bank and, therefore, Sri K.M. Asthana has also appeared for the Canara Bank.
Learned counsel for the appellant has submitted that when the appellant was ready to pay off all the loan which was there viz.-a-viz. the Canara Bank, there could be absolutely no difficulty in granting the permission. Learned counsel for the appellant further informed that the amount which was due to the Gulshan Mercantile Urban Cooperative Bank Ltd. had already been paid off. He submitted that as and when the amount which was payable to the Canara Bank is repaid, the appellant be given the required permission to sell the property.
Sri K.M. Asthana, learned counsel appearing for the Canara Bank, in opposition of the appeal, has submitted that till such time as the mortgage was there of the property which the husband of the appellant had mortgaged, neither the property could be sold off nor any transaction with regard to it could take place. Learned counsel for the Bank further submitted that the Civil Court has jurisdiction only after the charge of the bank is released.
Having heard learned counsel for the parties, the Court is definitely of the view that the Canara Bank should have been impleaded as a party before the District Judge where the application was filed for the grant of the permission to sell the property. Since, it has been brought to the notice of the Court that the amount which was due to Gulshan Mercantile Urban Cooperative Bank Ltd. has been paid off, it would not be necessary that the Gulshan Mercantile Urban Cooperative Bank Ltd. be made a party.
The appellant shall implead the Canara Bank through its Authorized Officer in the case and after the Canara Bank is impleaded as a party in the case, it shall also appear before the Court on 17.8.2022 and thereafter orders would be passed in accordance with law within a period of two months.
Till such time as the bank loans are satisfied, the appellant may pray for adjournments.
Since the matter would be heard again after the Canara Bank is impleaded as a party, the judgment and order dated 30.5.2022 is set-aside.
The appeal is, accordingly, partly allowed.
Order Date :- 1.8.2022
GS
