Delhi High Court
Devender Kaur vs Paujab And Sind Bank And Ors on 2 August, 2018
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 2nd August, 2018.
+ WRIT PETITION (CIVIL) 10522/2017 & CM No.43091/2017
DEVENDER KAUR ..... Petitioner
Through : Mr.Mukesh Sharma with Mr.Manish,
Advocates.
versus
PAUJAB AND SIND BANK AND ORS ..... Respondents
Through : Ms.Seema Gupta, Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
Devinder Kaur has filed the present writ petition impugning
order dated 23rd October, 2017 in Appeal No.336/2017 titled
Smt.Devinder Kaur vs.Punjab & Sind Bank & Ors. passed by the Debt
Recovery Appellate Tribunal, Delhi ("Appellate Tribunal").
2. Devinder Kaur ("petitioner") had filed SA No.28/2011 before
the Debt Recovery Tribunal ("DRT") under Sub-Section (1) of
Section 17 of the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI
Act'), questioning and challenging initiation of action by the Punjab
and Sindh Bank ("respondent bank") under Section 13(4) of the
'SARFAESI Act' in respect of property No.5A/1, measuring 520 Sqr
Yds in Khasra No.66/24 situated at Udyog Nagar village Mundka,
New Delhi("the property", for short).
3. As per the petitioner, Vipin Chopra/respondent No.4 had sold
the property to Bhupinder Kumar Sabharwal vide registered Sale
Deed dated 22.10.1999. Thereafter, the property was inherited by his
wife Kanchan Sabharwal in terms of the registered Will dated
25.04.2008 on death of Bhupinder Kumar Sabharwal. Kanchan
Sabharwal had transferred the property for consideration to the
petitioner by executing general power of attorney, agreement to sell,
affidavit etc. all dated 16.04.10. The petitioner had executed
registered sale deed dated 2.5.2011 in favour of her husband Surjeet
Singh.
4. The respondent bank claims that Vipin Chopra had mortgaged
the property with the State Bank of Bikaner & Jaipur ("SBBJ") in
2003. In December 2008, respondent bank took over the said liability
and rights from SBBJ.
5. The DRT by order dated 30.05.2017 dismissed and rejected the
SA filed by the petitioner holding that Vipin Chopra and his wife had
taken a loan from SBBJ by creating equitable mortgage in 2003 and
that the mortgage was in accordance with law. Claim of the petitioner
predicated on the Sale deed dated 22.10.1999 executed by Vipin
Chopra in favour of Bhupinder Singh Sabharwal and the agreement to
sell, power of attorney etc. executed on 16.04.2010 was not
sustainable in law. The SA was not dismissed on the ground that the
petitioner (Devender Kaur) had executed Sale Deed dated 02.05.2011
in favour of her husband Surjeet Singh, and on transfer of the
property, she did not have locus standi and that Surjeet Singh was a
necessary and proper party.
6. This objection was raised in the Appellate Tribunal in Appeal
No.336/2017 preferred by petitioner impugning the order dated
30.05.2017 passed by the DRT.
7. Appellate Tribunal by the impugned order dated 23rd October,
2017 dismissed the appeal filed by petitioner in limine relying on
Suraj Lamp and Industries Pvt. Ltd. versus State of Haryana and
Ors. AIR 2012 SC 206 and that petitioner was not entitled to pursue
the litigation as she had ceased to be the owner. Contention that
petitioner and her husband Surjeet Singh were "one and same" was
rejected. Appellate Tribunal, it was observed, was not meant to
adjudicate claims of those who do not have any interest in the
property.
8. It is apparent that petitioner was not properly guided and
informed that her husband Surjeet Singh should have been impleaded
as a party. Moreover, petitioner being the power of attorney holder,
who had executed the sale deed, had interest in contesting the
proceedings initiated by respondent bank under the SARFAESI Act.
Further, the petitioner was residing in the property.
9. The petitioner contends that the DRT had failed to consider the
documents relied upon by the petitioner. As per the petitioner, Vipin
Chopra could not have mortgaged the property with SBBJ in 2003 as
he had no title, having sold the property to Bhupinder Kumar
Sabharwal in 1999. Thus, the decision of the DRT was contrary to
law. Counsel for the respondent bank submits that documents relied
upon by petitioner may not be genuine.
10. We have narrated the facts and the controversy in issue. Chain
of documents relied upon by petitioner have been referred to, but we
have not commented on merits as these have to be considered and
examined by the Appellate Tribunal. However, we do feel and
observe that the petitioner and her husband Surjeet Singh should not
be denied hearing on merits on account of technical lapse and failure
to understand the impact and legal effect execution of the sale deed
dated 02.05.2011. They were misguided and did not have benefit of
proper legal advice and assistance.
11. Accordingly, the impugned order is set aside and the matter is
remanded to the Appellate Tribunal. The petitioner would file an
application to implead her husband Surjeet Singh within a period of
three weeks from today. Upon Surjeet Singh being impleaded as a
party, the appeal would considered and decided on merits and in
accordance with law.
12. Parties are directed to appear before the Appellate Tribunal on
27th August, 2018.
13. The writ petition is allowed in the aforesaid terms. We clarify
that we have narrated the facts in order to dispose of the present writ
petition. Correctness and truth has to be ascertained. Appellate
Tribunal would decide the appeal on merits without being influenced
by observations made in this order. There would be no order as to
costs.
SANJIV KHANNA, J
CHANDER SHEKHAR, J
AUGUST 02, 2018
sa
