SRI NARENDRA PRATAP SINGH vs INDIAN BANK (ALLAHABAD BANK) on 31 December 2024

ORDER

1. This Appeal has been filed by the appellant alongwith Limitation Petition, against the order dated 28.1.2004, 21.12.2005 and 23.01.2006, passed in R.P. No. 124/2002, by learned Recovery Officer of this Tribunal, requesting to set y .r" ..,;\~ I/~\\

DRT,PATNA Appeal 2 of 2018 [01

aside the above said order. The Reply of the appeal has been filed by the respondent no. 1 to 3.

2. The brief facts of the case are that MIs Hamarayan Rajnarayan through its partners Deo Mohan Shukla (now deceased), Bishwanath Singh (now deceased), Tej Narayan Singh and Surya Narayan Singh availed loan facilities to tune of RS.3.75 lacs. Batakhi Devi and Johna Devi stood as guarantors to the loan account of MIs Harnarayan Rajnarayan. Apart from this an another loan was availed by MIs Chandra Jyoti through its partners Shri Surendra Pratap Singh, Tara Shukla, Tej Narayan Singh, Nirmala Devi W/o Surya Narayan Sing and Shri Deo Mohan Shukla (now deceased) now substituted by his wife Most. Johna Devi to the tune of Rs.5Iacs. The account of MIs Harnarayan Rajnarayan was settled under compromise on the basis of IA No.4380/2011 filed in F.A. No. 85/1990 before the Hon'ble High Court of Patna. The respondent bank filed a Money Suit 13/1987 before the Civil Court against the firm MIs Chandrajyoti Enterprises. The Money Suit 13/1987 was decreed in favour of respondent bank vide judgment dated 23/06/1998 and Decree dated 06.07.1998. Later on, the said Judgment and Decree was transferred before this Tribunal as Ex(PT) 16/2022. Further, a certificate was issued by this Tribunal on 03.07.2002 in favour of the respondent bank for a sum of Rs.11,57,7661- plus future interest @7% till its realization. Accordingly, Recovery Proceeding bearing no. RP 124/2002 was initiated by the Ld. Recovery Officer of this Tribunal. Subsequently, property in question was attached vide order dated 28.01.2004 and auctioned vide order dated 21.12.2005 and the same was confirmed vide order dated 23.01.2006. Aggrieved from the auction sale, the present Appeal has been filed alongwith Limitation Petition.

3. On the point of limitation it has been stated that the father of the appellant was pursuing the case before Hon'ble High Court of Patna which was lastly decided vide order dated 18.08.2016 passed in LPA 640/2016 wherein liberty was granted to file application before the Debts Recovery Tribunal, Patna. Later on the father of the appellant died on 23.05.22017. After the death of his father he came to know about the cases and all the legal matters were pursued by his father. Further, the appellant contacted the counsel and ?V/ ._; ../\ .-i'-"'1 "~{'/'"" i\\

DRT.PATNA Appeal2of 2018 [01 requested for getting certified copies of order. After getting the certified copy of order dated 18.08.2016 passed by Hon'ble High Court of Patna he came to know that he has to approach this Tribunal. Accordingly, the present Appeal has been filed.

4. On the point of merit it has been stated that the appellant is neither borrower nor mortgagor or guarantor to the loan account in question. The property in question was never mortgaged with respect to the loan account of MIs Chandra Jyoti Enterprises while the property was attached and subsequently auctioned by the Recovery Officer. The appellant had purchased a plot of land jOintly with Jonha Devi having equal rights from one Hari Mohan Prasad vide registered sale deed no.5386 dated 29.05.1967. The father of appellant with consent of Jonha Devi mortgaged the property with the respondent bank for financial assistance to the partnership firm MIs Har Narayan Raj Narayan. On default in repayment, the respondent bank filed Money Suit before Civil Court, Buxar vide MS 21/1988. Further, the suit was decided by the Id. Sub-Judge in favour of defendants vide decree dated 20.02.1990. Against the said decree, the respondent bank filed First Appeal No. 85/1990 before the Hon'ble High Court of Patna. During pendency of said Appeal, the Ld. Recovery Officer attached the property in question vide order dated 28.01.2004 against the loan granted to MIs Chandra Jyoti Enterprises while the said property was never mortgaged in loan account of MIs Chandra Jyoti Enterprises. Accordingly, the appellant sent an objection before Ld. Recovery Officer through registered post. The appellant did not receive any order on the objection of the appellant. In the meantime the appellant entered into a settlement with the respondent bank and finally paid the settlement amount. No Dues Certificate was also issued by the bank which was brought into notice of Hon'ble High Court. Accordingly, FA 85/1990 was disposed of vide order dated 18.07.2011.

5. After some time it came to the notice of the appellant that the property was auctioned by Ld. Recovery Officer to the respondent no.5. Accordingly, the appellant through his counsel obtained certified copy of the order passed in RP 124/2022 and came to know that the said recovery proceeding has been initiated against the loan granted to MIs Chandra Jyoti Enterprises to which appellant has never mortgaged his properties or stood as guarantor ever. The appellant also came to know that the objection sent through post was decided by the Recovery Officer and same was dismissed vide order dated 28.06.2004

DRT,PATNA Appeal 2 of 2018 [OJ for want of affidavit and stamps without looking into the facts and circumstances moreover ignoring the principle of natural justice. The said order was also not served to the appellant.

6. Ld. Counsel of the respondent bank submitted that the present Appeal is barred by limitation. The sub section (1) of Section 30 of the RDB Act not permitted the jurisdiction to this Tribunal to condone the delay under section 5 of the limitation act. It is further submitted that the appellant had participated in the recovery proceeding and after due consideration the objection of the appellant was rejected on 28.06.2004. The respondent bank had granted loan to MIs Chandra Jyoti Enterprises through its partners and one of its partners Dev Mohan Shukla (now deceased) had mortgaged his property towards security of loan repayment. On default in repayment the respondent bank had filed Money Suit 13/1987 before the Civil Court against the firm MIs Chandrajyoti Enterprises and its partners. After the death of Dev Mohan Shukla, his wife Most. Johna Devi was substituted as legal representative. The Money Suit 13/1987 was decree in favour of respondent bank vide judgment dated 23/06/1998 and Decree dated 06.07.1998. After enactment of RDB Act, the said Judgment and Decree was transferred to this Tribunal before this Tribunal as Ex(PT) 16/2022. Further, a certificate was issued by this Tribunal on 03.07.2002 in favour of the respondent bank for a sum of RS.11,57,7661- plus future interest @7% till its realization. Accordingly, Recovery Proceeding bearing no. RP

was initiated by the Ld. Recovery Officer of this Tribunal. Subsequently, property in question attached vide order dated 28.01.2004 and auction sold vide order dated 21.12.2005 and the same was confirmed vide order dated 23.01.2006. The wife of the appellant is one of the partners in the firm of MIs Chandra Jyoti Enterprises which is evident from the order dated 09.02.2016 passed in CWJC No. 14805 of 2012.

7. Considered the submissions of parties and went through the record.

8. The present Appeal has been filed against the order of Recovery Officer in Recovery Proceedings No.124 of 2002. The applicant is aggrieved by order dated 28.1.2004, 21.12.2005 and 23.01.2006, passed in R.P. No. 124/2002. By the aforesaid orders, the property involved in Registered sale deed dated 22.12.2009 sold by Mohan Prasad to Jonha Devi and Sri Surya Narayan Singh( Father of Appellant) was attached vide order dated 28.01.2004 and ~"./,;-' .JJ/ 'Y"\ ~v 'S\\\~ /' j \/~

DRT,PATNA Appeal 2 of 2018 (0) auctioned vide order dated 21.12.2005 and the same was confirmed vide order dated 23.01.2006.

9. The only ground of the appellant is that the share of the appellant in aforesaid property was never mortgaged in the account of MIs Chandra Jyoti Enterprises but the Id. Recovery officer has auctioned the property for the recovery of the amount pertaining to the account MIs Chandra Jyoti Enterperises.

10. lt is not disputed that father of appellant Sri Surya Narayan Singh had filed CWJC-14805/2012 on the same grounds Before Hon'ble Patna High Court. It was observed that "the wife of the petitioner was party to the proceedings. I (Honb'le Justice) am not persuaded to grant any form of indulgence to the issue raised at such belated stage." Thereafter He also filed LPA-640/2016 against said order but that was dismissed as withdrawn. It makes it clear that mother of appellant-Narendra Pratap Singh was also co borrower for loan availed by MIs Chandra Jyoti Enterprises.

11. The appellant has not disclosed the name of his father and mother in this appeal. Though it has been found his father was sri Surya Narayan Singh and mother was Smt Nirmala Devi. It is admitted that Sri Surya Narayan Singh has died. It has not been disclosed whether the wife of Surya Narayan Singh is dead or alive. There is no disclosure regarding other legal heirs of Surya Narayan Singh and his wife. In the above circumstances the appellant claims his rights as legal heir of Surya Narayan Singh. The property of Sri Surya Narayan Singh devolves to Smt Nirmala Devi, His wife and the appellant, his Son. If she is dead, the appellant being her legal representative, steps in her shoes as co-borrower. Otherwise if she is alive the present appeal suffers the defect of non-joinder of necessary party Smt Nirmala Devi. The appeal also suffers from defect of non-joinder of Jona Devi or her Legal representatives being co sharer in the property in question. It is made clear that for the purpose of execution of decree or certificate of recovery, uncharged property of certificate debtors may also be attached. Apart from above technical defects,

12. lt is also to be pointed out that the Recovery officer has been wrongly arrayed as respondent in the forum of appeal.

13. The Recovery officer is executing authority of the certificate issued after the decree passed in Title suit 13/1987 by Sub Judge III Buxer. It is Settled position of Law that the Executing Court can not go behind the Decree. The V -./'A f_

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DRT,PATNA Appeal 2 of 2018 [01 merits of the judgment or the decree can not be looked into by the executing Court. The question raised or the claim made here in this Appeal does not relate to the Execution, Discharge, or Satisfaction of the decree in question.

14. The appellant has failed to explain when the copy of order of the High Court was obtained to justify the delay in filing this appeal.

15. ln view of the above discussion there is no merit in this Appeal.

ORDER

The Appeal No.02 of 2018 filed against Order passed in R.P.No.124 of 2002 is hereby, dismissed with costs. A copy of this order be given to the parties as well as to Id. Recovery Officer of this Tribunal. Order signed, sealed, dated and pronounced in the open court on this 31sT of ./ December, 2024. / --1'1 \.,i' Dictated & corrected by me. "..)"r{ [KaushalendraYadavj Presiding Officer Debts Recovery Tribunal, Patna