Appeal No. R-75 of 2012. Case: Horizon Projects Indore Pvt. Ltd. Vs Punjab National Bank & Others. Allahabad DRAT DRAT (Allahabad Debt Recovery Appellate Tribunals)
| Case Number | Appeal No. R-75 of 2012 |
| Counsel | For Appellant: Mr. Kushal Kant, Advocate and For Respondents: Mr. S.K. Srivastava, Advocate for the Bank |
| Judges | R.K. Gupta, J. (Chairperson) |
| Issue | Recovery of Debts Due To Banks And Financial Institutions Act, 1993 - Sections 19, 19(22); Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 - Sections 17, 18; Transfer Of Property Act, 1882 - Section 100 |
| Judgement Date | February 27, 2013 |
| Court | Allahabad DRAT DRAT (Allahabad Debt Recovery Appellate Tribunals) |
Judgment:
R.K. Gupta, J. (Chairperson)
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They are heard. The present Appeal is preferred by the Appellant under Sec. 18 of the SRFAESI Act, 2002 challenging the order passed by the Tribunal in S.A. No. 106/12 on 18th May, 2012. By this order the Tribunal has rejected the securitization application so preferred by the Appellant. The Tribunal has held that the Appellant has no locus standi to challenge the action so taken by the Bank and has further held that the transfer of the property through sale by the Respondent No. 3 in favour of the Appellant being subsequent to the mortgage is bad in law, therefore, the Appellant has no locus standi to challenge the recovery proceedings. The relevant facts for adjudication of the present case are that the Respondent No. 2 applied for grant of the facility of loan by moving an appropriate application to the Respondent No. 1-Bank, The same was sanctioned by the Respondent No. 1-Bank. So far as the Respondent No. 4 is concerned, he was holding leasehold rights of the property and the lessor was the Respondent No. 2. Under the leasehold rights on the property the Respondent No. 4 stood as guarantor in favour of the Respondent No. 2 with the Bank.
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Initially, the Lease Deed was issued by the Respondent No. 3 in favour of the Respondent No. 4 for a period of 30 years and the same was executed on 9th February, 2004. Subsequently, it is alleged by the Appellant that the said lease was to be cancelled under an agreement for cancellation, which ultimately concluded between the Respondent Nos. 3 and 4 on 1st April, 2004, and the said lease was finally cancelled by the lease of cancellation which was entered into on 10th June, 2004. Before 10th June, 2004 when the lease deed was finally entered into, the Respondent No. 4 created the mortgage of his rights in favour of the Respondent-Bank and stood as a mortgagor and guarantor for the Respondent No. 2.
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Since the default was committed by the Respondent No. 2 on repayment of the loan, therefore, the Respondent No. 1 Bank filed an application under Sec. 19 of the RDDBFI Act, 1993. The said application was registered as O.A. No. 06/07. The Tribunal decided the said Original Application in favour of the Bank by passing the order on 3rd March, 2009. It was an ex-parte judgment and the Recovery Certificate was' issued, as the Respondent Nos. 2, 3 and 4 did not contest the Original Application.
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In the Original Application filed by the Bank, the Respondent No. 4 as well as the Respondent No. 3 alongwith the firm were arrayed as Defendants and the Tribunal after adjudicating the case which was decided ex-parte, passed the following directions:
The Defendant Nos. 1 to 5 are hereby restrained by means of injunction from transferring or alienating or creating any third party interest in the property mortgaged and hypothecated with the applicant-Bank or dealing with the said property as detailed in the O.A. in any manner whatsoever without first paying the claim of the applicant-Bank in the event of failure to repay the recovery amount together with interest, cost the Applicant Bank will be entitled to sell all the mortgaged and hypothecated property of the Defendant Nos. 1 to 5 as detailed in the Original Application. In case the debt amount is not recovered from the sale of the mortgaged and hypothecated property then the applicant-Bank will be further entitled to recover the same by selling the other personal assets/properties of the Defendant Nos. 1 to 5. Let the Recovery Certificate be issued under Sec. 19(22) of the RDDBFI Act, 1993.
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Copy of the order passed by the Tribunal in Original Application No. 06/07 on 3rd March, 2009 was submitted by the parties to this Tribunal for its perusal.
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On 3rd September, 2009 the Appellant...
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