Shankar Lal Sharma vs UCO Bank on 28 February 2025

cm Item No. 55 Case No. APPEAL/8/2012 SHANKAR LAL SHARMA Vs UCO BANK Date: 28.02.2025. Proceedings through hybrid mode Present: Shri Roshan Sethi, Counsel for the Applicant Smt. Anita Agarwal, Counsel for the Respondent Bank/FI Shri Raj Kumar, Counsel for the Respondent no. 4 Respondent no. 2 and 3 are ex parte

This Appeal has been pending since 2012. It is argued by the appellant that they have purchased this property in 1995 and the property has been allegedly mortgaged with the bank in the year 2002.

On the last date of hearing, it was observed and pointed out to the bank that in the orders passed by the Recovery Officer, it is submitted that the objectors are the purchaser of the property prior to the mortgage and the same is admitted by the bank. A clarification was sought.

Today, Counsel for the Respondent bank submits that this fact was itself disclosed in the original application and mortgage has been decided in favour of the bank. Therefore, the objectors cannot get the relief under Rule 11 of Income Tax Schedule. She submits that this Appeal should be dismissed with heavy cost. It is further contended that the Application of Appellant under 9(13) for setting aside decree and Order 1 Rule 10 applications were also dismissed. She further submits that the borrowers of Bank have played fraud and FIR is already registered.

cm The appellant counters the arguments and submits that even in order under challenge it is recorded that the Appellant had purchased the property prior to mortgage and Bank has not denied the same. It is submitted that to cover up the fraud the Bank has been opposing the registered documents and counsel of the bank admits that the letter was written by the Appellant about their owner ship. The Tribunal is of the opinion that the Appellant was the necessary party in the OA proceedings as the issue of property owned by them was directly involved as bank was claiming mortgage on their property. By not making them the party Bank had other motives so that the Appellant could not contest and they could establish their claim on property which they did and today also taking shelter under the same order. Had the bank made them a party in the original proceedings as the bank was aware about their title then they could have defended the same. Counsel for the Respondent bank again submits that the application under Rule 9(13) and Rule 1(10) were dismissed by this Tribunal. Be that it may be, the banks are very diligent in granting loans and not without taking legal search report any mortgage is created. This factum of sale deed of 1995 should have been pointed out in the legal search report and asset visit also must have revealed the exact possession of Appellant. This Tribunal feels that the Bank is at fault in not making the objectors/ owners of the property party which was in their knowledge and mention is found in the OA itself.

cm Recovery Officer has observed that the possession is with the objectors and it is about 7sq yard property where appellant is running a puncture shop. For the fault of Bank, appellant is suffering and without any fault of his has been forced to litigate.

In these circumstances, this Appeal deserves to be allowed and is allowed accordingly. The recovery officer shall not proceed to enforce RC against this property i.e. C-3, South East Corner, Ground Floor, Lalkothi Shopping Center, Sahkari Marg(Sahkar Marg) having area 7.14 square meter. All proceedings against the property stand quashed including attachment and auction.

The amount of Rs. 5.40 Lac lying with the registry be returned along with the accrued interest be to the appellant. The auction purchaser requests for refund of his money which will be lying with recovery officer. Recovery officer is directed to return the money deposited by the auction purchaser along with accrued interest forth with. Copy of this order be sent to the Recovery Officer. No order as to cost. The appellant will be at liberty to claim compensation as per law. File be consigned to record as per rules. Copy of order be uploaded on website.

(Vimal Gupta) Presiding Officer