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Jatinder Kaur Banga v/s International Asset Reconstruction Co. Pvt. Ltd. & Another


Company & Directors' Information:- ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED [Active] CIN = U65999MH2002PLC134884

Company & Directors' Information:- INTERNATIONAL ASSET RECONSTRUCTION COMPANY PRIVATE LIMITED [Active] CIN = U74999DL2002PTC117357

Company & Directors' Information:- INDIA RECONSTRUCTION CORPORATION LIMITED [Active] CIN = U51109UP1945PLC001293

Company & Directors' Information:- INDIA RECONSTRUCTION LIMITED [Dissolved] CIN = U99999MH1947PLC006083

    Misc. Appeal No. 92 of 2019

    Decided On, 21 January 2020

    At, Debts Recovery Appellate Tribunal at Delhi

    By, THE HONOURABLE MR. JUSTICE P.K. BHASIN
    By, CHAIRPERSON

    For the Appellant: Sanjeev Bhandari, Advocate. For the Respondents: R1, Pawan Malik, R2, G.S. Anand, Advocates.



Judgment Text

This appeal is against the following order passed by the DRT-II, Chandigarh on 1.2.2019 in the O.A. under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 filed by Allahabad Bank, which subsequently assigned the debt of its borrower in favour of respondent No. 1 herein:“Heard arguments in this IA No. 912/18 which has been filed by applicant (third party) challenging the order dated 23.3.2015 by which certain properties of defendant borrower were attached by this Tribunal and the learned Counsel for applicant has stated that the attachment order was passed on 23.3.2015 whereas applicant who is a third party has already purchased these properties from B.O.I. on 25.11.2016 and 17.12.2014. The learned Counsel for applicant has stated that it is well settled principle of law that on the date of attachment, only the property of borrower can be attached. Since, borrower had already sold these properties to applicant prior to the date of attachment order; therefore, this order is illegal and requested to set aside this order and to release these properties from attachment.The learned Counsel for IARC had filed an application for attachment of these properties and it was very much in the knowledge of B.O.I. in connivance with the borrower and applicant purchaser, released these properties to the borrower fraudulently and financed the applicant to purchase these properties and the applicant after purchasing these properties again mortgaged these properties with the B.O.I. When these properties were attached by this Tribunal on 23.3.2015 then B.O.I. as well as applicant purchasers both were affected by this order and one of these affected parties B.O.I. challenged the order dated 23.5.2015 in this Tribunal and the application of B.O.I. was dismissed on 25.11.216 and B.O.I. had filed an Appeal before Hon’ble DRAT, Delhi against order 25.11.2016 which is still pending. Since, this Tribunal has already dismissed the application regarding attachment, then this Tribunal cannot review order dated 25.11.2016 as this order has already been challenged before Hon’ble DRAT, Delhi by B.O.I. The learned Counsel for IARC further stated that third party purchasers were well aware of the order dated 23.3.2015 as well as appeal proceedings pending before Hon’ble DRAT, Delhi against the order of attachment but applicant never tried to become party in that appeal and never challenged this attachment order since 23.3.2015 and this application for condonation of delay has been filed and prayed to dismiss the application.The learned Counsel for B.O.I. also supported the arguments of Counsel for applicant in I.A. No. 912/18 and requested to allow this application.Heard all the parties and perused the file. The brief facts are that previously this O.A was filed by Allahabad Bank against the defendants and thereafter, the loan was assigned by Allahabad Bank to IARC and the name of applicant IARC was substituted in this O.A.Then IARC filed one application for attachment of some properties of defendants which were mortgaged by the defendants with B.O.I. also and B.O.I. is also a party in this OA. B.O.I. released these properties in favour of defendants with this condition that defendants will pay Rs. 26 crores to B.O.I. and the learned Counsel for B.O.I. stated that after the release of these properties, the defendants sold these properties to the applicant purchasers. The B.O.I. financed the applicant purchasers to purchase these properties and he again mortgaged these properties with B.O.I.When these properties were attached by this Tribunal on 23.3.2015 then there were two affected parties by this attachment order. One of them is B.O.I. because these properties were again mortgaged by the purchaser with B.O.I. and secondly the purchasers who are applicant in this I.A.Aggrieved by this order dated 23.3.2015 one of the affected parties challenged the order in this Tribunal by way of an application which was dismissed on 25.11.2016 and B.O.I. filed an Appeal before Hon’ble DRAT, Delhi which is pending for disposal. This issue whether the attachment order was valid or not, has already been decided by this Tribunal on 25.11.2016 in an objection filed by one of the affected partied B.O.I. then in my humble view this Tribunal has no jurisdiction to again decide this issue whether this attachment order is valid or not.Since, B.O.I. has filed an Appeal against the order dated 25.11.2016 before the Hon’ble DRAT, Delhi which is pending and applicant purchasers who have filed this IA are well aware of the facts that Appeal is pending before the Hon’ble DRAT, Delhi then they should have become a party in that Appeal as per law. It is well settled principle of law that on the date of attachment only that property can be attached which belongs to borrower and property of any other person cannot be attached but in this case the properties which were attached by the Tribunal on 23.3.2015 were already sold out by the borrowers to the applicants and that attachment order was challenged by B.O.I. and that application was dismissed in 25.11.2016, therefore, this Tribunal has no jurisdiction to give and finding again on its own order. Otherwise, that will amount to hearing an Appeal of its own order which is not permitted by law.Therefore, as per above mentioned reasons, I am of this view that applicant in this IA are one of the affected parties by this attachment order and since, this attachment order was challenged by other affected party B.O.I. that application was dismissed on 25.11.2016. Applicant/purchasers never become party in the objections filed by the B.O.I. which was dismissed on 25.11.2016 and when B.O.I. filed an Appeal against the order even then the purchaser kept on watching the proceedings secretly without becoming party in Appeal also. And after 4 years of this attachment order they have moved this application first time challenging that order which has already been challenged by other affected party B.O.I. and since, the objection of B.O.I. has already been decided and dismissed by this Tribunal, therefore, applicant/purchaser have no right to raise that issue again before this Tribunal when an Appeal is already pending against that order before Hon’ble DRAT, Delhi.Therefore, this Tribunal cannot go into question of attachment at this stage when this issue is already pending before Hon’ble DRAT, Delhi in Appeal filed by other affected party for this attachment order i.e. B.O.I.Therefore, as per above mentioned reasons, the present IA is not maintainable and is accordingly dismissed in the light of above mentioned reasons.”2. From a reading of this impugned order of DRT and the submissions made at the Bar and also a perusal of the material available on record the position which emerges is that Allahabad Bank had sanctioned loan of crores of rupees to one Company M/s Lakhani Rubber Udyog Private Ltd., a part of ‘LAKHANI GROUP OF COMPANIES’ which appears to be under the control of one P.D. Lakhani. Since the loan of Allahabad Bank was not repaid it had filed one O.A. No. 142/2013 before DRT-I, Chandigarh for recovery of its dues against the borrower and guarantors who included P.D. Lakhani and his wife. During the pendency of the O.A. Allahabad Bank assigned the debt in favour of respondent No. 1 herein which came to be substituted as the O.A. Bank of India was also impleaded in the O.A. but as a proforma defendant applicant. The assignee of Allahabad Bank had moved an application for attachment before judgment in respect of some properties. That application was allowed by DRT-I, Chandigarh vide order dated 23.3.2015. After some months of the passing of that attachment order Bank of India moved one application purporting to be an application under Section 152, CPC for correction in the attachment order dated 23.3.2015 and the correction sought for was that the DRT even after noticing that attachment properties were mortgaged with Bank of India by its owner P.D. Lakhani to secure repayment of loan which this Bank had advanced to another Company of ‘LAKHANI GROUP OF COMPANIES’ did not mention in the order that attachment was subject to the mortgage rights of Bank of India. In that application Bank of India had claimed that attached properties were mortgaged in its favour by P.D. Lakhani and out of those properties three properties had already been released by it and P.D. Lakhani had in turn sold those three properties in Faridabad to the appellant herein much before the passing of the attachment order dated 23.3.2015. That application of Bank of India was however rejected by DRT. Against that order Bank of India filed an appeal before this Tribunal (being Appeal No. 500/2016). That appeal has already been dismissed by this Tribunal holding the same to be not maintainable considering the application under Section 152, CPC to be really an application for review of attachment order dated 23.3.2015 and further holding that no appeal lies against an order of rejection of a review application.3. During the pendency of the appeal of Bank of India before this Tribunal the appellant herein had filed an application (being M.A. No. 912/2018) before DRT-II, Chandigarh where the O.A. appears to have been transferred in the meanwhile and registered as O.A. No. 787/2017, for lifting of attachment of three properties in Faridabad which were attached vide order dated 23.3.2015. The appellant had claimed in her application that she had purchased the three attached properties from P.D. Lakhani after the same had been released by Bank of India from its charge much before the passing of attachment order dated 23.3.2015 and, therefore, the attachment order in respect of the three properties purchased by her was liable to recalled.4. The application of the appellant was disposed of by DRT-III, Chandigarh, since the Presiding Officer of DRT-III was given additional charge of DRT-II because of Presiding Officer of DRT-II having demitted office DRT-III however, rejected the application of the appellant vide impugned order dated 1.2.2019 for the reason that Bank of India had already challenged the order dated 23.3.2015 before DRAT and so the same issue could not be decided by DRT again. Feeling aggrieved the appellant approached this Tribunal by filing the present appeal.5. It was not seriously disputed by the Counsel for the respondents that the point involved in the appeal of Bank of India and in the application moved by the present appellant was not same. In my view the DRT ought to have disposed of the appellant’s application on its own merits after considering the grounds of opposition thereto raised, if any, on behalf of the O.A. applicant, respondent No. 1 herein, being assignee of Allahabad Bank. Without dealing with the points raised by

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the appellant herein seeking recall of attachment order concerning three properties which she was claiming to have purchased from P.D. Lakhani prior to the passing of the attachment order dated 23.3.2015 her application could not have been dismissed.6. This appeal is, therefore, allowed and the order dated 1.2.2019 of DRT-II, Chandigarh is set aside. The DRT is directed to pass a fresh order after hearing the parties on I.A. No. 912/2018 filed by Ms. Jatinder Kaur Banga for lifting of attachment of three properties in Faridabad ordered earlier vide order dated 23.3.2015. The matter shall now be taken up on 10.2.2020 at 2 p.m. for ‘directions’. DRT-III which is presently holding additional charge of DRT-II also because of the Presiding Officer of DRT-II having demitted office upon completion of his tenure be informed of this order. Records of the case shall be made available to DRT-III by the Registry of DRT-II, Chandigarh. It is clarified that this Tribunal has not gone into the merits of the case of the appellant herein and the DRT shall take fresh decision uninfluenced by any observation made in the order dated 1.2.2019 which is being set aside by the present order.Appeal allowed.
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