Konchumon Philip Pos Mathai vs Bank of Baroda on 5 January 2026

**JUDGMENT**

1. 1. This appeal is preferred by the Appellant against the order dated 18/08/2008 passed by Ld. Recovery Officer, DRT-II, Ahmedabad ("Ld. RO" for short) in Recovery Proceedings No.1797 in Original Application No.481/2000.

2. 2. The brief facts of the present Appeal, as averred by the Appellant, are that the Appellant purchased an immovable property **being land and building Block No.B/17/122 in Associated Co-operative Housing Society Ltd. Constructed on land situated at Akota (sim) S.No.285 (part) being Plot No.121 and 122 (part) of T.P. Scheme No.1 of Baroda ad-measuring 1260 sq.ft.** from Respondent No.3 herein under an Agreement to Sell dated 07/09/1982 for Rs.40,000/-. The Appellant paid an amount of Rs.10,000/- to Respondent No.3 and agreed to

pay the remaining amount of Rs.30,000/- later by instalments. Upon execution of the Agreement to Sell, Respondent No.3 also handed over physical possession of the property in question to the Appellant. It is further the case of the Appellant that thereafter Respondent No.3 created mortgage in favour of the Respondent No.1 Bank on 03/03/1986 by way of depositing the Title Deeds of property in question. The said mortgage was extended by Respondent No.3 in favour of the Respondent Bank by executing Extension of Mortgage on 03/02/1988 and 18/03/1992.

1. 3. The Appellant has further averred that the officer of the Respondent Bank approached the Appellant on 10/05/2008 with a Sale Certificate informing him that the property in question has been auctioned by the Bank under a Sale Certificate issued by DRT, Ahmedabad in Original Application No.481/2000 and that the same has been purchased by Respondent No.4 herein. Therefore, the Appellant has filed the present Appeal to set aside the sale of immovable property in question on the ground of irregularity. The day on which the property in question is alleged to have been mortgaged by Respondent No.3, in her capacity of guarantor of Respondent No.2, she had no right, title or interest in the said property as it was purchased by the Appellant after due verification of Title Deeds on 11/05/1990 and Share Certificate being Title Deed of the said property was transferred by the Associated Co-operative Housing Society Ltd. in favour of the present Appellant by adopting Resolution No.3 dated 11/05/1990.

2. 4. It is further the case of the Appellant that before preferring present Appeal, the Appellant approached Hon'ble High Court of Gujarat by way of SCA No.8273/2008 wherein the

Hon'ble High Court of Gujarat was pleased to stay execution of Sale Certificate vide order dated 18/06/2008. The said stay was extended by Hon'ble High Court of Gujarat from time to time. On finding that the Appellant had an alternative remedy available to him, the Appellant sought permission to withdraw the said Petition for filing the Appeal before this Tribunal. Therefore, the Hon'ble High Court of Gujarat was pleased to grant the said permission and disposed of the said Petition as withdrawn vide order dated 28/07/2008.

1. 5. Thereafter, the Appellant filed his objections in RP No.1797 before Ld. RO vide Ex.T/29 praying for setting aside the sale of the immovable property in question. The Respondent Bank had filed its reply to the said objections vide Ex.H/34. As per the case of the Appellant, Ld. RO has seriously erred in observing in the impugned order dated 18/08/2008 that the property in question does not belong to the third-party objector as the third-party objector has not filed registered Sale Deed to prove that the property in question belongs to him. He further observed that the copies of documents placed on record by the Respondent Bank clearly show that property in question does not belong to the third-party. Therefore, Ld. RO directed the Court Commissioner to take over physical possession of the property in question from the Appellant herein and hand over the same to the Auction Purchaser. Being aggrieved by the said order, the Appellant has preferred the present Appeal on various grounds as mentioned in the Memo of Appeal.

2. 6. The Respondent Bank has filed its Affidavit-in-Reply vide Ex.R/8 and denied the statements and averments made by the Appellant. It is contended by the Respondent Bank that the present Appeal is not maintainable on the sole ground

that the same has been filed by a person who claims to be Power of Attorney Holder. The Power of Attorney produced by the Appellant reveals that the same is a Special Power of Attorney for conducting the matter in SCA No.8273/2008 before Hon'ble High Court of Gujarat. The said Power of Attorney does not grant authority to file Appeal before this Tribunal. Hence, it deserves to be dismissed.

1. 7. The Respondent Bank has contended that the present Appeal is filed by the Appellant in collusion with Respondent Nos.2 & 3 to defeat recovery proceedings initiated by the Respondent Bank.

2. 8. It is contended by the Respondent Bank that the so-called Agreement to Sell was originally not part of the case of Appellant in SCA No.8273/2008 filed before Hon'ble High Court of Gujarat. The alleged transaction on 11/05/1990 by which the Appellant claims to have purchased the mortgaged property is totally a concocted story. At that time also, the property in question was under mortgage in favour of the Respondent Bank in connection with certain credit facilities sanctioned by the Bank in 1986 and 1988 to the Certificate Debtors. Subsequently, for securing the existing credit facilities sanctioned by the Respondent Bank to Respondent No.2, mortgage of property in question was created by Respondent Nos.2 & 3 herein on 18/03/1992. The liability under the said mortgage was subsequently acknowledged by the mortgagors on 06/10/1997. In consideration of the said credit facility, Respondent Nos.2 & 3 created equitable mortgage of the immovable property in question from time to time. Since, Respondent No.2 committed default in repayment of the loan, the Respondent Bank filed OA No.481/2000 before this Tribunal for recovery of its dues against the borrowers and guarantors. After hearing the parties, this Tribunal allowed

the said OA and issued Recovery Certificate dated 19/08/2003 in favour of the Respondent Bank to recover Rs.25,13,664.21 with further interest jointly from Respondent No.2 & 3. Respondent No.2 & 3 are joint owners of the property in question and the Bank has a right to recover its dues from the said mortgaged property.

1. 9. The Respondent Bank has further contended that for transfer of immovable property in question, a registered instrument of conveyance is required. The Appellant has not produced any such registered instrument of conveyance in his favour. The so-called Share Certificate produced by the Appellant is a fabricated one. The Appellant has also not produced anything on record to show that he was in possession of the property. The documents produced by the Appellant are fabricated because the same do not match with the records of statutory local authority i.e. Vadodara Municipal Co-operation. As on date huge amount of Rs.55 Lacs due and recoverable from the Certificate Debtors. Therefore, any restraint order will hamper recovery of public money by the Respondent Bank. Hence, the Respondent Bank prayed for dismissal of the present Appeal.

2. 10. Respondent No.3 has filed her Affidavit-in-Reply vide Ex.R/18 to place certain facts on record. She has stated that she has not mortgaged any of her property nor executed any guarantee in favour of the Respondent Bank against the loan that has been obtained by Respondent No.2. The loan obtained by Respondent No.2 was settled in the year 1991 and certificate to that effect was issued by Respondent Bank on 30/03/1991. In the meantime, in the year 1990 the Appellant showed interest in purchasing property in question and she agreed to the proposal of the

Appellant to sell the property for the agreed consideration. On receiving the desired consideration, she transferred the ownership and possession of the property in question to the Appellant. Upon her request, the Society also transferred the property in the name of Appellant on 11/05/1990 by passing resolution and entered the name of the Appellant in their records. Thus, all the rights, title and interest of her in the property in question were transferred to the Appellant on receiving the agreed consideration.

1. 11. Respondent No.3 has further stated in her Affidavit vide Ex.R/18 that she had not submitted any documents to the Respondent Bank on 18/03/1992 and the Bank has prepared the said documents without her knowledge and consent and therefore, the same are not binding to her. She has further stated that after transfer of property in question to the Appellant on 11/05/1990, she informed Branch Manager of the Respondent Bank vide letter dated 15/06/1990 that she has sold the property to the Appellant and further informed the Bank about her new address. In order to obtain Ex-parte decree in its favour, the Respondent Bank had given her address of the property in question in the cause title of OA No.481/2000, though the Bank was informed about her new address vide letter dated 15/06/1990.

2. 12. Respondent No.4-Auction Purchaser has filed his Affidavit vide Ex.R/12 and stated that the present Appeal is vexatious and based on fabricated documents to mislead this Tribunal. On the basis of Recovery Certificate issued on 19/08/2003, the Bank initiated recovery proceedings before Ld. RO in which public auction of the property was held on 06/05/2008. The objections filed by the present Appellant at Ex.T/29 in recovery proceedings were rejected by Ld. RO vide order dated 18/08/2008. He has further stated that

physical possession of the property in question has been handed over to him by Court Receiver as per order dated 21/08/2008 of Ld. RO. Sale Deed has also been executed in his favour on 02/09/2008. Therefore, the present Appeal deserves to be dismissed.

1. 13. I have heard Ld. Counsels for the parties. The Appellant has filed his Written Arguments vide Ex.A/21 and the Respondent Bank filed its Written Submissions vide Ex.R/22. I have carefully gone through the documentary evidences placed on record by the parties. It has been argued by the Ld. Counsel for the Respondent Bank by way of preliminary objection that the present Appeal is not maintainable in law as it has been filed by a person who claims to be Power of Attorney Holder of the Appellant. The Power of Attorney relied upon by the Appellant pertains to SCA No.8273/2008 filed before Hon'ble High Court of Gujarat and does not confer any authority to file the present Appeal before this Tribunal.

2. 14. On perusal of copy of Power of Attorney dated 02/07/2008 filed by the Appellant at Page 15-16 with Appeal, it appears that Mr. K.M. Philipos Mathai has given power to Mr. Pradeep Kumar to do following acts, deeds and things:

*"My trustworthy person shall do all the following acts, deeds and things viz."*

*Whereas my civil case is running the Gujarat High Court vide its case No. Special Civil Application No.8273/2008.*

*Hence, I have empowered my trustworthy person to look after my civil case that my attorney shall have right to engage the advocate and solicitor for submits that application. Written statement, petition, affidavit, etc. to file the or to withdraw the court matter from the any court of law in India on my behalf. Whatever my attorney shall think and deem fit".*

1. 15. In view of above contents of Power of Attorney, it becomes clear that the executant of power had given all the rights to the Power of Attorney Holder to file or to withdraw the court matters from any court of law in India on his behalf. Therefore, simply because the executant has given reference to SCA No.8273/2008 filed before Hon'ble High Court of Gujarat, it cannot be said that the Power of Attorney was limited only for the purpose of proceedings of the said Petition. Accordingly, the preliminary objection raised on behalf of the Respondent Bank in that regard cannot be sustained.

2. 16. It appears from the pleadings that the Appellant relies on an unregistered 'Agreement to Sell' allegedly executed in the year 1982. The Appellant has not produced any documentary evidences to show that the property in question was legally transferred in his favour by a registered instrument of conveyance. The Appellant has also pleaded that he has purchased the property by payment of entire consideration and he was put into possession of the property on execution of Agreement to Sell itself in the year 1982. Therefore, Ld. Counsel for the Appellant argued that the alleged mortgage could not have been created by Respondent No.3 in favour of the Respondent Bank on 18/03/1992.

3. 17. It is a settled position of law that the ownership of an immovable property can only be acquired by a registered deed of conveyance. I am fortified in my view by the judgment of the Hon'ble Apex Court in the case of **Durgawati Devi V/s. Union of India and others, decided on 04/10/2019 in SLP(C) No.37479 of 2016.** It has been held therein as under:

"5. Admittedly, as on the last date for submission of applications in terms of the advertisement referred to above, the petitioner did not own land as required. The petitioner only had an agreement for sale in her favour. It is well-settled that execution of a sale agreement does not transfer ownership/title. Ownership can only be acquired by a registered deed of conveyance. The petitioner was not eligible as on the last date for submission of applications."

18. In view of the above legal position, the Appellant herein did not have right, title and interest in the property and consequently the Appellant cannot be said to have locus to challenge the measures taken by the Respondent Bank against the property in question.

19. In this context, a reference also deserves to be made to the judgment of the **Hon'ble Supreme Court dated 02/06/2023 in Civil Appeal No.7527-758 of 2012 in the case of Ghanshyam vs. Yogendra Rathi**. It has been held in Para 14 of the said judgment as under:

"14. In connection with the general power of attorney and the will so executed, the practice, if any, prevalent in any State or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs.100/- in value. **The decisions of the Delhi High Court in the case of Veer Bala Gulati Vs. Municipal Corporation of Delhi and Anr. following the earlier decision of the Delhi High Court itself in the case of Asha M. Jain Vs. Canara Bank and Ors.** holding that the agreement to sell with

payment of full consideration and possession along with irrevocable power of attorney and other ancillary documents is a transaction to sell even though there may not be a sale deed, are of no help to the plaintiff-respondent inasmuch as the view taken by the Delhi High Court is not in consonance with the legal position which emanates from the plain reading of Section 54 of the Transfer of Property Act, 1882. In this regard, reference may be had to two other decisions of the Delhi High Court in **Imtiaz Ali Vs. Nasim Ahmed and G. Ram Vs. Delhi Development Authority 1 (2003) 104 DLT 787 2 (2001) 94 DLT 841 3 AIR 1987 DELHI 36 4 AIR 2003 DELHI 120** which inter-alia observe that an agreement to sell or the power of attorney are not documents of transfer and as such the right title and interest of an immovable property do not stand transferred by mere execution of the same unless any document as contemplated under Section 54 of the Transfer of Property Act, 1882, is executed and is got registered under Section 17 of the Indian Registration Act, 1908. The decision of the Supreme Court in **Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr.** also deprecates the transfer of immovable property through sale agreement, general power of attorney and will instead of registered conveyance deed."

1. 20. In view of aforesaid law laid down by Hon'ble Supreme Court from time to time, this Tribunal is unable to accept right title and interest of the Appellant in the property in question and his ownership of the same as alleged.

2. 21. On the other hand, the Respondent Bank has produced copy of Memorandum of Deposit of Title Deeds dated 18/03/1992 along with copy of Share Certificate issued by the Society in respect of the property in question. The Share Certificate filed by the Respondent Bank at Page 37-38 with its reply Ex.R/8 shows names of Respondent Nos.2 and 3 as joint owners of the property. On the other hand,

the copy of Share Certificate produced by the Appellant at Page 23 with Memo of Appeal shows only name of Respondent No.3 as the owner of the property and copy of reverse side of the Share Certificate at Page 24 with Memo of Appeal shows that the name of Appellant was transferred in the records of Society on 11/05/1990, whereas copy of reverse side of Share Certificate produced by the Respondent Bank at Page 38 with its reply Ex.R/8 does not show any transfer entry.

1. 22. Respondent No.3 has attempted to support the Appellant by stating in Affidavit vide Ex.R/18 that she had transferred ownership and possession of the property in question in favour of the Appellant on receiving entire consideration. However, she has not disclosed the amount of consideration received by her from the Appellant. Similarly, the Appellant has also not produced any documents on record to show that he paid remaining amount of consideration of Rs.30,000/- to Respondent No.3 herein as agreed in the Agreement to Sell dated 07/09/1982. Respondent No.3 has further relied on her letter dated 15/06/1990 addressed to the Respondent Bank informing the Bank that she has sold the property to the Appellant on 11/05/1990 and that she has changed her address. The Appellant has produced a copy of the said letter dated 15/06/1990 at Page 42 with the Appeal Memo. It is the case of Respondent No.3 that the loan obtained by Respondent No.2 was repaid to the Bank and the Bank has issued a certificate dated 30/03/1991 stating that the loan of Respondent No.2 has been settled. Respondent No.3 has produced copy of certificate dated 30/03/1991 at Page 13 with her Affidavit Ex.R/18.

1. 23. Per contra, Respondent has produced copy of Letter of Acknowledgment of Debt dated 06/10/1997 at Page 25-26 with Ex.R/8. On perusal of the said document, it appears that Respondent No.3 has signed it acknowledging balance outstanding of Rs.18,99,059.21 in the account of Respondent No.2 herein.

2. 24. In view of aforesaid documentary evidence filed by the Respondent Bank on record, it becomes clear that the liability for repayment of the credit facility granted by the Respondent Bank to Respondent No.2 was acknowledged by Respondent No.3. As such, the Respondent Bank was entitled to take legal recourse for recovery of its outstanding dues from the mortgaged property of Respondent No.3.

3. 25. From the documentary evidences on record, this Tribunal fails to understand why the Appellant had not requested to Respondent No.3 to execute sale deed though he claims to have paid entire consideration to her. If Respondent No.3 was not ready and willing to execute the sale deed, the Appellant ought to have approached the Civil Court by filing a Suit for specific performance. The Appellant has failed to do so.

4. 26. It appears that the Appellant is trying to take benefit of the deeds of Memorandum of depositing of Title Deeds. The disputed property was never released by Respondent No.1 Bank in favour of the mortgagor at any time. The reason is that the debt was not liquidated. The entry of the Appellant in the record maintained by the Housing Society would not create any title in favour of the Appellant. The alleged mutation entry alone is not sufficient to create title to the property in favour of the Appellant. In short, this Tribunal is

of the opinion that the Appellant has no pre-existing right in the disputed property so as to stall proceedings.

1. 27. Accordingly, this Tribunal does not find any illegality, irregularity or manifest error in the findings of Ld. Recovery Officer that submission of the Appellant with regard to ownership of the subject property in this case, was a subject where the Ld. RO had not right to give any findings. Ld. RO was supposed to execute the Recovery Certificate and as an executing entity he was not authorized to go beyond the Recovery Certificate and the judgment passed in concerned OA.

2. 28. Therefore, this Tribunal finds that the Appellant has failed to prove his case in the present Appeal and the Appeal deserves to be dismissed without any order as to cost.

**Order**

This Appeal is hereby dismissed without any order as to cost. Let a copy of this order along with file of concerned RP be sent back to Ld. RO for finalizing the proceedings in accordance with law.

Let the file be consigned to record.

Pronounced in open Tribunal on this 5^th day of January 2026 at Ahmedabad.

(Pankaj Kumar Upadhyay) Presiding Officer DRT-II, Ahmedabad

Saloni