M/S.Indian Overseas Bank vs Mrs.Leelamma Mathew
2022 Latest Caselaw 3004 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                  THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

                                         &

                       THE HONOURABLE MRS. JUSTICE C.S. SUDHA

            THURSDAY, THE 17 TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943

                                 RFA NO. 379 OF 2014



  AGAINST THE JUDGMENT AND DECREE DATED 31.01.2014 IN OS 630/2012 OF SUB COURT,

                                    KOZHIKODE



APPELLANTS/DEFENDANTS

      1      M/S.INDIAN OVERSEAS BANK,
             A BANKING COMPANY HAVING ITS HEAD OFFICE AT 76/3,
             ANNA SALI, CHENNAI 600 002, TAMIL NADU,
             REPRESENTED BY THE CHIEF MANAGER, PALAKKAD BRANCH.

      2      INDIAN OVERSEAS BANK,
             REGIONAL OFFICE CHEROOTTY ROAD,
             KOZHIKODE 673 032, REPRESENTED BY ITS
             CHIEF MANAGER AND AUTHORIZED OFFICER.

      3      INDIAN OVERSEAS BANK,
             G.B ROAD, PALAKKAD 678 001,
             REPRESENTED BY THE CHIEF MANAGER

             BY ADVS.SRI.K.N.SIVASANKARAN
             SRI.SUNIL SHANKAR



RESPONDENT/PLAINTIFF

             MRS.LEELAMMA MATHEW,
             AGED 51,
             W/O M.T. FRANCIS, DONUM DEL. NELLIKODE HOUSING COLONY,
             CHEVAYOOR P.O, KOZHIKODE 673017,
             NELLIKODE AMSOM DESOM, KOZHIKODE TALUK.

             BY ADV SRI.JAWAHAR JOSE




      THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 08 .03.2022, THE

COURT ON 17.03.2022 DELIVERED THE FOLLOWING:
                                         2
R.F.A.No.379 of 2014

               P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                --------------------------------------------------
                            R.F.A.No.379 of 2014
                    -------------------------------------------
                  Dated this the 17 th day of March, 2022


                              JUDGMENT

C.S.Sudha, J.

This is an appeal against the judgment and decree dated

31/01/2014 in O.S.No.630/2012 on the file of the Subordinate Judge's

Court, Kozhikode. The suit is one for money/compensation. The court

below decreed the suit. Hence the defendants have come up in appeal. The

sole plaintiff is the respondent herein. The parties in this appeal will be

referred to as described in the suit.

2. The defendants (the Bank) on 24/01/2007 through its

authorised officer, published Ext.A1 public notice inviting sealed

tenders/bids relating to sale of 54 cents of property in Survey No.48/1 in

Tirur Taluk, Tanur Village, Keraladheeswarapuram Desom, which property

the bank was stated to be in possession pursuant to the proceedings initiated

by them under the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (the Act) in their capacity as

secured creditor. The plaintiff, through her husband, after being shown the

R.F.A.No.379 of 2014

property, submitted her bid, namely Ext.A2, stating that she was ready to

buy the property for a sale consideration of ₹ 32,05,000/-. In the bid she had

also stated that she was making the offer subject to the condition that

absolute ownership and possession of the property should be transferred to

her without any encumbrance. To this she received Ext.A3 reply dated

05/03/2007 from the Bank informing her that the Bank had invited tenders

on the basis of "AS IS WHERE IS" and "AS IS WHAT IS" condition and if

she was willing to buy the property on the said condition, she is to inform

the Bank of the same on or before 10/03/2007, failing which the Bank

would take it that she was not ready to buy the plot. The plaintiff responded

by Ext.A4 letter dated 08/03/2007 stating that her tender need only be

considered if the Bank could transfer absolute ownership and possession

over the entire 54 cents of property without any encumbrance, if not, she

was withdrawing from her offer and that her earnest money may be

returned. Later when the plaintiff's husband met the second defendant, he

was informed that the Bank had filed a case before the Chief Judicial

Magistrate Court, Manjeri, to take physical possession of the 54 cents of

land and that the plaintiff need pay the remaining amount as and when the

Bank directed her. Thereafter the plaintiff was contacted by the Bank and

informed that they had acquired possession of the entire 54 cents of land as

R.F.A.No.379 of 2014

per the order of the CJM, Manjeri, and as such the Bank was ready to sell

the property without any encumbrance to the plaintiff. Accordingly, the

plaintiff issued three cheques dated 11/10/2007, 16/10/2007 and 17/10/2007

towards the balance sale consideration and on 21/11/2007 the Bank issued

Ext.A5 sale certificate. All the documents relating to the property were then

handed over to the plaintiff. On 01/02/2010 Ext.A5 sale certificate was

registered. Pursuant to the same when the plaintiff and her husband

approached the Village Office for mutation of the property, they were

informed that tax would be accepted only for 39.60 cents of property. It was

seen that 14.40 cents of property had been sold by the owner, i.e., the

judgment debtor to a third party and as such what was transferred to the

plaintiff was only 39.60 cents of property and not the entire extent of 54

cents as stated in Ext.A5 sale certificate. The plaintiff on enquiry, came to

know that the Bank was well aware of this deficiency in extent based on

Ext.A10 report dated 21/11/2007 of the Tahsildar. In the report it is clearly

stated that property taken possession of is excluding the property that had

been assigned by the judgment debtor. The copy of the report of the

Tahsildar had been communicated to the Bank also. Thus, the Bank was

well aware of the fact that they did not have the right to sell the entire extent

of 54 cents of land to the plaintiff, which fact was deliberately concealed

R.F.A.No.379 of 2014

from the plaintiff and an amount of ₹ 32,05,000/- collected from her as sale

consideration for the entire property. The defendants have thus played fraud

on the plaintiff and made unlawful profit out of the transaction and hence

the suit claiming compensation of an amount of ₹ 60,10,000/- with interest

and costs from the defendants and their assets.

3. The Bank filed written statement denying the allegation

that the plaintiff was unaware of the deficiency in extent of the property.

According to them, the property was purchased by the plaintiff being fully

aware of the same. The allegations to the contrary are made to suit the case

set up in the plaint. No fraud was ever played by the defendants on the

plaintiff. The suit is not maintainable and hence the same is liable to be

dismissed with costs.

4. Before the court below, PW1 and PW2 were examined

and Exts.A1 to A14 were marked on the side of the plaintiff. On the side of

the defendants/Bank, DW1 was examined. No documentary evidence was

adduced by the defendants/Bank. After considering the oral and

documentary evidence and also hearing the parties, the court below

accepted the case of the plaintiff that she had been defrauded by the

defendants/Bank and hence decreed the suit.

R.F.A.No.379 of 2014

5. Heard Sri.Sunil Shankar, the learned counsel for the

appellants and Sri.Jawahar Jose, the learned counsel for the respondent.

6. The points that arise for consideration in this appeal

are :-

(i) Has the plaintiff established fraud in the conduct of sale of the

property by the defendants/Bank to take the suit out of the bar

contemplated under Section 34 of the Act?

(ii) If fraud has been established, what is the remedy available to

the plaintiff?

(iii) Is the plaintiff entitled to damages? If so, the measure of

damages?

(iv) Is there is any infirmity in the findings of the court below

calling for an interference by this Court?

7. Point No.(i) - According to the court below, the

defendants/Bank at the time of Ext.A1 notice and at the time of issuance of

Ext.A5 sale certificate, was well aware of the fact that the total extent of the

property was only 39.60 cents and not 54 cents. Ext.A10 report dated

21/11/2007 filed by the Tahsildar in the proceedings initiated by the bank

before the CJM, Manjeri, the copy of which was given to the bank, clearly

R.F.A.No.379 of 2014

states that the extent of the property taken possession of, is excluding the

extent of property sold by the judgment debtor. In spite of this, the bank

issued Ext.A5 sale certificate dated 21/11/2007 for the entire extent of 54

cents of property, thus defrauding the plaintiff. However, the court below

has not taken notice of the contention raised by the defendants/Bank in their

written statement in which they have no case that they were not aware of

the deficiency of the extent of the property. On the other hand, their specific

case is that the plaintiff was also well aware of this fact and that it was

knowing this, the plaintiff had gone ahead and taken sale of the property.

This contention of the defendants/Bank is not seen considered by the court

below. The stand taken in this appeal is also that the Bank was unaware of

the deficiency in extent and that if at all they came to know of the same, it

was only after they had received Ext.A10 report dated 21/11/2007, which

was after they had issued Ext.A5 sale certificate. Ext.A5 sale certificate is

also dated 21/11/2007. The date on which the bank had actually received

Ext.A10 report is not clear. This probably must have been the argument

advanced before the court below also. However, a party cannot go beyond

his pleadings and hence we will consider the matter on the basis of the

pleadings raised by both parties before the court below.

8. As stated earlier, the case of the plaintiff is one of

R.F.A.No.379 of 2014

complete ignorance of the deficiency in extent of the property, which is

disputed by the defendants/Bank, whose specific case is that the plaintiff

was well aware of the same. Therefore, we shall examine whether the said

contention is true. Clauses 6 and 8 of Ext.A1 Notice Inviting Tenders from

the Public read -

"6) It is the responsibility of the tenderers to inspect and satisfy

themselves about the assets and specification before participating in the tender.

7) xxxxxxx

8) The above secured asset will be sold in "AS IS WHERE IS" and "AS IS WHAT IS" Condition." (Emphasis supplied)

Referring to the aforesaid clauses, it was argued by the learned counsel for

the Bank that unlike in a case of private sale, where the rule ' caveat

emptor' or 'buyer beware' is applicable, the said principle is not applicable

in the instant case as it is a statutory sale conducted, wherein it was

incumbent on the part of the plaintiff/buyer to have made diligent enquiries

before proceeding with the sale of the property. Having not done so, she

cannot now turn around and cry foul after lapse of a few years. In support of

this argument, reference was made to the following decisions -

The Ahmedabad Municipal Corporation of the city of Ahmedabad v.

Haji Abdulgafur Haji Hussenbhai - 1971(1) SCC 757 ; Babu Lal

R.F.A.No.379 of 2014

Hargovindas v. The State of Gujarat - 1971(1) SCC 767 ; Rangiah

Chettiar and Kempammal Trust v. Authorised Officer & Asst.

General Manager, Punjab National Bank - MANU/TN/9743/2019 ;

Asset Reconstruction Company (India) Ltd. v. Florita Buildcon

Private Limited - MANU/MH/2602/2016 ; Electrosteel Castings

Limited v. UV Asset Reconstruction Company Limited -

MANU/SC/1150/2021 ; Agarwal Tracom Pvt. Ltd. v. Punjab National

Bank - MANU/SC/1494/2017 ; R. Shanmugachandran v. The Chief

Manager Indian Bank Asset Recovery Management -

MANU/TN/1243/2012 ; Mathew Varghese v. M. Amritha Kumar -

MANU/SC/0114/2014 ; Mahendra Mahato v. The Central Bank of

India - MANU/WB/0561/2014.

9. Per contra, it is argued by the learned counsel for the

plaintiff that had the Bank been unaware of the deficiency in extent, the

aforesaid argument advanced on behalf of the Bank would hold good. On

the other hand, here the specific case of the plaintiff is that the Bank had

deliberately concealed the deficiency in extent of the property and thus

played fraud on the plaintiff and hence she is entitled to claim

damages/compensation. So, the bar under Section 34 of the Act is not in

R.F.A.No.379 of 2014

any way attracted in the light of Section 32 of the Act. Reference was

made to the following decisions -

Trojan & Co. Ltd. v. N.N.Nagappa Chettiar -

MANU/SC/0005/1953 ; Malhotra v. Choudhury - 1978(3) WLR

825 ; M/s.TCI Distribution Centres Ltd. v. The Official Liquidator,

High Court, Madras - 2009 SCC Online Mad 1481 : 2009(8) Mad LJ

1238.

A sale conducted at the instance of a secured creditor, will certainly be a

measure taken by the secured creditor under Section 13(4) of the Act to

bring it within the scope of Section 17(1) of the Act. So, an auction

purchaser would certainly come within the meaning of the term 'aggrieved

person' as contemplated under Section 17(1) of the Act. But here, the case

of the plaintiff is that the Bank had played fraud on her in the conduct of

the sale of the property. Sections 32 and 34 of the Act read -

"32. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act.

33. xxxxxxxxxx

R.F.A.No.379 of 2014

34. Civil Court not to have jurisdiction

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)."

The aforesaid provisions make it clear that only if it is shown that an

action taken by the Bank was not in good faith, the civil court gets

jurisdiction or a suit can be filed.

10. It is not easy to give a definition of what constitutes

'fraud' in the extensive signification in which that term is understood by

Civil Courts of Justice. Fraud, in the contemplation of a Civil Court, may

be said to include properly all acts, omissions, and concealments which

involve a breach of legal or equitable duty, trust or confidence, justly

reposed, and are injurious to another, or by which an undue or

unconscientious advantage is taken of by another. All surprise, trick,

cunning, dissembling and other unfair way that is used to cheat any one is

considered as fraud. Fraud in all cases implies a wilful act on the part of

anyone, whereby another is sought to be deprived, by illegal or inequitable

R.F.A.No.379 of 2014

means, of what he is entitled to (Kerr on the Law of Fraud and Mistake.

Seventh Edition).

11. As stated earlier, the defendants/Bank in their written

statement do not have a case that they were unaware of the deficiency in

extent. Now the question is, did the plaintiff also know of this fact?

Ext.A2 bid submitted by the plaintiff reads thus -

"QUOTATION

In response to the advertisement published in the Hindu daily by the authorised officer I.O.B. Regional office Calicut. I offer my highest quotation of Rs.32,05,000/- (Rupees thirty two lakh and five thousand only) being the sale price of 54 cents of land and temporary shed in S.No.48/1 Tirur Taluk, subject to the condition that absolute ownership and vacant possessions of the full extent of property without encumbrance. D.D. for Rs.20000/- (Rupees twenty thousand) is enclosed here with D.D.No.002299"

Ext.A2 is a conditional bid that has been offered by the plaintiff. To this,

the defendants/Bank gave Ext.A3 reply which reads -

"Your offer for the property mortgaged to the Bank 54 cents of land

with a shed under Sy.No.48/1 at Keraladheeswarapuram Village in Tanur.

We refer to your offer of Rs.32.05 Lacs for purchase of the captioned property in response to the advertisement dated 23.01.2007 in the Hindu and the Mathrubhumi.

Since our invitation to the public for tenders had stated that the

R.F.A.No.379 of 2014

property would be sold in 'AS IS WHERE IS' and 'AS IS WHAT IS' condition, we are unable to confirm the sale in your favour as your offer is subject to the condition that vacant possession of the property be given to you upon sale.

In the circumstances, please inform us on or before 10.03.2007 as to whether you, as the highest bidder, are prepared to take the property in the present condition. In case we do not hear from you on or before 10.03.2007, we will assume that you are not interested in purchasing the property in 'AS IS WHERE IS' and 'AS IS WHAT IS CONDITION'."

In reply to Ext.A3, the plaintiff gave Ext.A4 letter which reads -

"Kind attention is invited to the subject and reference cited. First of

all I inform you that I am not ready to purchase the property in 'AS IS WHERE IS' and 'AS IS WHAT IS' condition.

In my quotation (offer) itself cited in the reference 1st, I clearly mentioned that absolute ownership and vacant possession of the full extent of property (54 cents) without any encumbrances must be given. Once more I mention that I am ready to purchase the property only if absolute ownership, vacant possession and full enjoyment of 54 cents of land and temporary shed in Survey No.48/1 at Keraladheeswarapuram in Tirur Taluk, free from all encumbrances is given. Otherwise I am not ready to purchase the property. If you are not able to assign absolute ownership, vacant possession and full enjoyment of the property mentioned above, I am ready to withdraw my quotation, if you return the DD enclosed with the quotation or give Rs.20,000/- (Rupees twenty thousand only) to me. Please inform your decision in this regard at an earlier date...."

A stand is seen taken in the cross examination of PW1, the husband of the

R.F.A.No.379 of 2014

plaintiff, that the Bank had not received Ext.A4 letter. However, this

contention is not seen seriously pursued. Therefore, we will take it that

Ext.A4 was in fact received by the defendants/Bank. According to the

Bank, the plaintiff only wanted vacant possession of the property and

hence as demanded by her, they moved the CJM concerned under the

relevant provisions of the Act and pursuant to the order of the CJM,

possession was taken over by the Tahsildar and handed over to the Bank.

In Ext.A10 report of the Tahsildar it is stated that the property that has been

taken possession of from the tenant and handed over to the Bank - the

secured creditor, is excluding the portion of the property that had been

assigned by the judgment debtor to third parties. In Ext.A1, it is clearly

stated that the sale being conducted is on 'AS IS WHERE IS' and 'AS IS

WHAT IS' condition. Ext.A1 notice also says that it is the responsibility of

the tenderers to inspect and satisfy themselves about the assets and

specification of the property before participating in the tender. PW1 in his

cross examination was asked whether he had made any enquiries relating

to the property. PW1 has no case that he was not aware of the terms and

conditions stated in Ext.A1 notice. He admitted that when he had submitted

Ext.A2 quotation, he entertained no doubt(s) relating to the title of the

property. But when Ext.A2 was given, a workshop was functioning in the

R.F.A.No.379 of 2014

property and so they said that their bid/quotation need be accepted by the

Bank only if the workshop was evicted and vacant possession of the

property given. PW1 admits that before submitting Ext.A2, he had never

verified or inspected the documents relating to the property. He had only

looked into the documents that were shown to him by the Bank. On further

questioning, he answered that he did not feel it necessary to inspect or

make enquiries relating to the other documents in respect of the property.

He further went on to depose that at the time when Ext.A2 was given, he

had no reasons to doubt the title to the property or Ext.A1. His only doubt

was relating to the possession of the property. The testimony of PW1 will

make it clear that no attempt was made by the plaintiff or her husband to

make any enquiries whatsoever regarding the property, which was

expected of from a bidder as stipulated in Ext.A1 notice. As held by the

Honourable Supreme Court in Ahmedabad Municipal Corporation of

the city of Ahmedabad v. Haji Abdulgafur Haji Hussenbhai -

1971(1) SCC 757, relied on by the defendants/Bank, there is no warranty

of title in an auction sale. It is axiomatic that the purchaser at the auction

sale takes the property subject to all the defects of title and the doctrine of

caveat emptor or purchaser beware, applies to such a purchase. However,

this doctrine does not apply to a case where the judgment debtor has no

R.F.A.No.379 of 2014

saleable interest at all in the property sold. A bonafide purchaser takes

property he buys, free of all charges of which he has no notice actual or

constructive. He is said to have constructive notice when ordinary

prudence and care would have impelled him to undertake an inquiry which

would have disclosed the charge. If for instance, the charge is created by a

registered document, then the purchaser would be held to have constructive

notice of that charge inasmuch as a prudent purchaser would and in

ordinary course, search the registers before effecting the purchase.

12. Here in the instant case, the case of the plaintiff is not

that the judgment debtor had no saleable interest in the property. On the

other hand, her case is that, the judgment debtor had sold a portion of the

property even before the property was mortgaged with the defendants/Bank

and so he did not have title or possession over the entire extent of 54 cents.

In the proceedings initiated by the Bank before the CJM-Manjeri, it was

that extent of property minus the property that had been sold by the

judgment debtor that had been taken possession of by the Tahsildar

concerned. The property that was taken possession by the Tahsildar and

handed over to the Bank is stated to be 39.60 cents of property. Therefore,

for the deficit 14.40 cents, there must certainly be a registered document

and had the plaintiff and her husband been diligent and made necessary

R.F.A.No.379 of 2014

enquiries as was expected of them, they would certainly have come to

know of the existence of this document(s) before they proceeded with the

purchase of the property, which enquiries they were bound to make as per

the stipulations contained in Ext.A1 notice. Absolutely no enquiries are

seen to have been made by the plaintiff or her husband and no

explanation(s) has been given for not making any enquiries. PW1 also

admitted that he had gone to the site and inspected the property before

proceeding with the purchase. The deficiency stated is not one or two cents

of property, but 14.40 cents, which in all probability must have been

apparent or noticed by the plaintiff when she visited the plot. Therefore, as

contended by the Bank, and as is seen from the testimony of PW1, the only

condition put forward by the plaintiff at the time of Ext.A2 seems to have

been that they wanted the workshop to be evicted and vacant possession of

the property given. The bank initiated steps to take possession of the

property. Possession was obtained as evidenced by Ext.A10 report of the

Tahsildar, pursuant to which the balance sale consideration was paid and

thereafter Ext.A5 sale certificate issued.

13. Further, a detailed procedure while resorting to sale of

an immovable secured asset is prescribed under R.8 and R.9 of the Security

Interest (Enforcement) Rules, 2002 (the Rules). This has got a twin

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objective, namely, by virtue of the stipulation contained in S.13(8) of the

Act read along with R.8(6) and R.9(1), the owner / borrower should have

clear notice of 30 days before the date and time when the sale or transfer of

the secured asset would be made, as that alone would, enable the owner /

borrower to take all efforts to retain his or her ownership by tendering the

dues of the secured creditor before that date and time. Secondly, when such

a secured asset of an immovable property is brought for sale, the intending

purchasers should know the nature of the property, the extent of liability

pertaining to the said property, any other encumbrances pertaining to the

said property, the minimum price below which one cannot make a bid and

the total liability of the borrower to the secured creditor. (See Mathew

Varghese v. M.Amritha Kumar - AIR 2015 SC 50 ). The aforesaid

statutory provisions make it clear that a sale could take place only after the

expiry of 30 days from the date of the public notice. As held by the Apex

court, one of the purposes of giving 30 days' time is to enable all intending

purchasers to make sufficient enquiries as a person of normal diligence and

ordinary prudence would do while buying any immovable property. This

has never been done by the plaintiff or her husband for which no cogent

reason or for that matter any reason has been given. It is true that the

secured creditor has a duty to disclose the encumbrances that comes to his

R.F.A.No.379 of 2014

notice. However, that would not mean that it obliterates or completely

exonerates the purchaser of his liability to exercise due diligence and to

make enquiries and to scrutinise the title to the property. Had the plaintiff

and her husband exercised due diligence in making enquiries relating to the

property, which they were bound to carry out, especially in the light of the

stipulation in Ext.A1 that the property is being offered for sale in "AS IS

WHERE IS' and 'AS IS WHAT IS' condition, they would certainly have

come to know of the deficiency. Having not done so, the plaintiff after a

lapse of considerable time cannot come to the court feigning ignorance or

alleging fraud.

14. The materials on record probabilise the case of the

defendants that the plaintiff was well aware of the deficiency in extent and

that appears to be the reason why the plaintiff did not find it necessary to

make any enquiries whatsoever relating to the property. Ext.A5 sale

certificate issued on 21/11/2007 is seen registered only on 01/02/2010

which is nearly three years after the issuance of Ext.A5. It appears that a

case of fraud has been brought in by the plaintiff only to take the present

suit out of the ambit of Section 34 of the Act. Otherwise, in case she was

aggrieved by the sale conducted by the Bank, she ought to have moved the

Debt Recovery Tribunal within the time limit provided under Section 17 of

R.F.A.No.379 of 2014

the Act. This is not a case where a diligent purchaser came to know about

the defect after the period of limitation prescribed for moving an

application under Section 17 of the Act. This is also not a case where the

debtor or the secured creditor did not have any saleable interest at all in the

property. In such a case, certainly the auction purchaser would not be left

without any remedy because it may be possible that at least in some cases

that the auction purchaser may came to know of the defect much after the

period prescribed under Section 17 of the Act. In such cases, the aggrieved

party can certainly move the civil court for setting aside the sale and

getting back the money deposited towards the sale consideration and in

case of fraud, would be entitled to compensation or damages as well. But

this is not a case in which the judgment debtor did not have title over the

entire extent of the property. Therefore, it is not a case of no saleable

interest at all in the property. As no fraud is seen to have been committed

by the Bank, the bar under Section 34 of the Act is certainly attracted.

Point answered accordingly.

15. Point no.(ii) & (iii) - In the light of the finding under

Point no.(i), these issues do not arise for consideration.

R.F.A.No.379 of 2014

16. Point no. (iv): - In the result, the appeal is allowed.

The judgment and decree of the court below is set aside and the suit is

dismissed. The parties shall suffer their respective costs.

All interlocutory applications, pending if any, shall stand

disposed of.

Sd/-

P.B.SURESH KUMAR JUDGE

Sd/-

C.S.SUDHA JUDGE ami/

R.F.A.No.379 of 2014

APPENDIX

ANNEXURE A : REGISTRATION COPY OF THE DOCUMENT DATED 18.9.2002 WHICH BEARS NUMBER 2313/2002 OF SRO, TANUR.