ARVIND KUMAR vs CENTRAL BANK OF INDIA on 7 October 2016

JUDGMENT

/ This Appeal has been filed by the appellant against the sale notice dated 22.7.2016, issued by Id. Recovery Officer in R.P. Case no. 92 of 2014, which is arising out of OA 157 of 2013. The reply of the Appeal has been filed by the respondent tank, denying all the allegations raised by the appellant. Heard the Id. Cosunel of both the parties.

it is submitted by Id. Counsel of appellant that valuation report dated 7.7.2010, in which, the property stands in the name of Late Buddhu Saw, as owner and this property is subject matter of auction sale, this property was never adjudicated in the OA. It is further submitted that the Hon’ble High Court of Patna in CWJC No. 11807 of 2013 has observed as under – t

X'+• e “In the aforesaid circumstances, the writ application is partly allowed. The sale notice dated 8.2.2014 published in 'Dainik Jagaran’ dated 10.2.2014 is quashed with liberty to the respondent bank to issue FBu tl ––---' +YeUu+ OII ice+ MIB 81111916\ lhtaBa HP \

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DRT,PATN A Appeal 10 of 2016[JI fresh sale notice in accordance with law after fixing the reserve price at Rs.1,99,40,400/- as agreed between the paties.”

it is submitted that Recovery Officer has no discretion to reduce the reserve price as mentioned in the order of the Hon’ble High Court. It is further submitted that it is well settled law that the Recovery Officer can put the property for sale upto to the extent of satisfaction of dues as per recovery certificate. It is submitted that sale notice is in English language, while language of Bihar Sharif is in Hindi. It is submitted that appellant has not mortgaged the property for the loan advanced to M/s Shiva City with two reasons [1] this issues has not been decided by this Tribunal in OA and he has no title holder of the property. It is further submitted that a copy of order dated 22.4.2014 has been filed by the appellant along with Appeal.

On contrary, Id. Counsel of respondent bank has submitted that the Appeal is hopelessly time barred and to condone the delay, the appellant has not filed any limitation petition, as the appellant has challenged the mortgage along with sale notice dated 22.7.2016. It is further submitted that the property mentioned in e- auction sale notice and in valuation report dated 7.7.2010 is the same property and against this property, attachment order has been passed by Id. Recovery Officer. It is further submitted that ,r{{I):(!-.B)>i\ appellant appeared before Recovery Officer and always accepted J \ ff ##"\$\:r :, T?J:S.T„LT!:_E;_'i'E T==':_ _:'File_T===' T'=_==? }} R\ &b /Wmentioned inthesale notice. Initially,the propertywasinthe name \K" '\. H’""7/ /; of Late Budhu Sao and after his death, the property was divided in iR Jl:;.',:1.'.-"Y his four sons in equal share. On 15.12.1979, there was a family partition between the sons of Late Budhu Sao [copy of family partition deed is filed with OA] and vide this partition, plot no.296, khata no.17, thana no. 126 was given in the share of Mewa Sao of which, the appellant is only son. It is further submitted that other co-sharers of the Budhu Sao has confirmed the share of Mewa Sao It is further submitted that other share holders have also executed an affidavit dated 8.2.2006, in which, they have mentioned that Plot no. 296, Arazi-10 Dec., is in the share of Mewa Sao and after his death, the property is in share of appellant i.e. Arbind Kumar, and the property has been mutated in the name of appellant, no objection has been raised by other parties, which also shows that a;k_. 'WB BILliVlt ' lllieu&r P4thB

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DRT,PATNA Appeal 10 of 2016jJI the property is in the share of appellant and accordingly, the appellant has mortgaged the property with the bank to secure the loan of M/s Shiva City. Other co-sharers have given no objection. It is further submitted that the appellant has also consented with regard to reserve price and upon his request as well as Id. counsel of bank, the reserve price of the mortgage property has been fixed. Meaning thereby, the appellant has admitted the mortgage. Since, the appellant wants to settle the matter and as upfront, he has deposited Rs.10 lacs with the bank, therefore, this Tribunal has granted stay of the auction sale and in view of the stay, sale notice dated 22.7.2016 becomes in fructuous. It is further submitted that along with appeal, a photocopy of order dated 22.4.2014 has been filed by the appellant, which is manipulated and fabricated. It is further submitted that since, the appellant has filed fabricated order, therefore, the appellant does not deserve for any relief and the appeal may be dismissed.

Considered the rival contentions of the parties and perused the case records.

This Appeal has been filed by the appellant for setting aside the proceeding from 8.7.2016 to till the notice of sale dated 22.7.2016, passed by Id. Recovery Officer in R. P. Case no. 92 of

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Vide the sale notice dated 22.7.2016, published in newspaper, the property in question, has been put for e-auction sale by Id. Recovery Officer on 26.8.2016, but the e-auction sale notice was stayed by this Tribunal vide order dated 26.8.2016/ on payment of Rs.5 lacs immediately on 26.8.2016 and also on an undertaking to pay further Rs.5 lacs by appellant within 15 days from the date of order. Therefore, the sale notice dated 22.7.2016 becomes infructuous.

The dispute raised by the appellant is that the property, in question has not been mortgaged with the bank for loan advanced to M/s Shiva City, as the appellant is not the title holder of the property . The appellant cannot raise this issue in this Appeal, as the Appeal is filed against the order of Id. Recovery Officer. It is well n£§£hm JEBT6 Hrcovlk\ THBtHat PATb6

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DRT.PATN A Appeal 10 of 20161 Jl settled law that if a party contested the case and has not raised his grievance in that case, he cannot raise that issue before the same court in subsequent case. He has right to raise that issue in Higher Court in accordance with law. Therefore, the appellant cannot raise this issue in Appeal and dispute, raised by the appellant that property in question has not been mortgaged, is rejected.

it is matter of very serious concerned that the appellant has filed a photocopy of order dated 22.4.2014, passed in OA 157 of 2013, by this Tribunal, which is in torn and affixed with cello tape and tampered the true and free copy of original order and wants to take the benefit by tampering the order passed in OA 157 of 2013.

The appellant has filed tempered certified copy of order dated 22.4.2014 and also twisted the facts and it is held by the Hon’ble Supreme Court of India in series of judgment that if there is suppression / concealment of material facts on the part of the appellant or twisted facts have been placed before the Court, the Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. #sil),

in view of the above facts and circumstances, I do not find n’r\N 1:It P #M+--= -. :.i-: any merit in the Appeal and also the sale notice dated 22.7.2016 7 in Y / ’ rex _ \ t J a7 n 1%gII \iii : : : re: = = = = :sTdT S / t h e r e f 0 r e I t h e A P peat filed by the appellant is OFF I\\'\): €'1Y/ ',L,V o R D E R J a \ ~$+ .; . '. „: .:'” The Appeal filed by the applicant is dismissed. A copy of this order be given to the parties as well as to Id. Recovery Officer of this Tribunal. Judgment signed, sealed, dated and pronounced in the open court on this Ja Day of October, 2016. Dictated & Corrected by me LU [R, a

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