M/S AMPLE DEVELOPER vs BANK OF BARODA on 28 February 2017

ORDER

(Dated Zgn F*b.* ry,20l7)

1. Brief summarY A suit for recovery, civil Suit No.62Ng3, under order 34 Rule 4 & 5 and order 7 Rule I 8.2 cpc, for Rs.6,37,13,346.3g was filed by Res.No.lagainst Res.No.2 to 7 herein before the District Judge, Bhopal, on 13-06-92. The same was transfered to this Tribunal vide order dtd.06-07-98 and was registered as TA llT2lgg on 25-06-99 and the Judgment was delivered on 16-08-2000. Recovery certificate was thereafter issued and the subject property was put to sale which stands sold to Res.No.8 and a sale certificate was issued by the Recovery Officer of this Tribunal on l5-06-12. The present MA was filed on 04-10-12 under order 9 Rule 13 cPC read with sec .22(il of RDDBFI Act, lgg3. The same was dismissed by this Tribunal vide order dtd. 13-02-13. The present applicant filed an appeal against the order dtd. 13-02-13 passed by this Tribunal. The Hon'ble DRAT, Allahabad

allowed the Appeal No.R-69/13 preferred by the applicant vide its order dtd.09-10-13 and set aside the order dtd.13-02-13 passed by this Tribunal with certain directions. A writ petition No.2ll36ll3 was prefbrred by the Res.No.l bank against the order passed by the DRAT, Allahabad. The same was disposed of by the Hon'ble High Court vide order dtd.07-05-14 with the observation that the order of remanding the matter back to DRT, passed by the DRAT is reasonable in nature and there is no error of law or fact in deciding the appeal warranting interference by the Hon'ble High court under Article 227 of the constitution. Admittedly, a review was filed against the order passed by the Hon'ble High Court by ResNo.S (who is the purchaser of the properfy by court auction), which was disposed of vide order dtd.13-10- 14by the Hon'ble High Court without varying the direction passed earlier.

2. This order shall dispose of the application filed by the applicant for setting aside the exparte Judgment/order dated 16.0g.2000 and the proceedings thereafter. It may be noted that though in this application, the applicant has prayed for setting aside the exparte Judgment/order dated 16.08.2000 of this Tribunal and the proceedings thereafter as a whole, however, in terms of the Judgment of the learned DRAT dated 09.10.2013, whereby the aforesaid application earlier dismissed by this Tribunal vide order dated 13.02.2013 has been remanded back for decision with directions to decide the same on merits, permitting the parties to adduce the necessary evidence before this Tribunal, if any, and ultimately if this Tribunal will come to the conclusion that the property of the Applicant was not mortgaged or mortgaged wrongly, then this Tribunal would pass the necessary direction to the Recovery officer to correct the recovery certificate accordingly, which order of the leamed DRAT has also been confirmed by Hon'ble High court of Madhya pradesh at Jabalpr"rr in writ petition J a No. 2l 136 of 2013 vide Order dated 07 .05.2014 at the instance of the Res.No.l bank herein and not varied even while disposing of the review application filed by the Auction purchaser Res.No.g herein vide order dated 13.10.2014, the same has to be heard and decided accordingly. Therefore, this Tribunal while acting as a .,Remand court" has to act in accordance with the directives of the Hon'ble DRAT, while disposing of this application on merits.

3. Any reference to page numbers hereinafter is as per the compilation prepared by the parties and placed on record.

4. Brief background: 4.1 The Res.No.l - Bank had granted certain credit facilities to the Res.No.2 herein and Res.No.5 &. 7 stood as guarantors for the Res.No.2 herein, mortgaging certain immovable properties alleged to have been owned by them. one such property stated by the Bank to have been mortgaged with them was an agricultural land admeasuring about 32 kanals situated at village Gwalpahari, District Gurgaon, Haryana ("the subject property"). The Sale Deed of this 32 kanals of land being Sale Deed No. 241 dated 2l.0s.lgg3 is the pivotal contention between the parties. while the Bank submits that the purchaser of the said land by the said Sale Deed was the Res.No.5 company, the applicant submits that the purchaser under the said sale deed was an individual being Dr. Brindawan. 4'2 The records reveal that this 32 kanals of land situated at Village Gwalpahari, District Gurgaon, Haryana was owned by one Shri.Bharat Bhushan Bhatia who had sold the same vide Sale Deed No. 241 dated 21.05.1993 (page 74-75, 162,253). However, whether the purchaser of the same under the said Sale Deed is the Res.No.5 herein or Dr. Brindawan will be dealt with later in this order. )-

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( 4.3 The said 32 kanals of land was duly mutated in the revenue records in the name of the purchaser on 19.06.1993 (pageTg). 4.4 As per Page 320 of the compilation, a Resolution was passed by the Res.No.S herein on 19.10.1993 whereby the Res.No.S had authorized its director, Mr. A.C. Aggarwal to effect legal mortgage in respect of 14.5 acres of non-agricultural land situated at Gurgoan, Haryana in favour of Res.No.1 Bank of Baroda as security. As per Page 531 of the compilation, another Resolution was passed by Res.No.5 thereby authorizing its same director, Mr.A.c. Aggarwal to deposit the original title deeds of the property of the company situated at Gurgaon, Haryana with the Bank of Baroda, Hamidiya Road, Bhopal for creation of mortgage to secure various credit facilities enjoyed by the Res.No.2 herein for which Res.No.S had stood as a guarantor. 4.5 Page 532 of the Compilation is the extracts of the minutes of the Board of meeting of the Res.No.7 herein resolving that the property situated at 20 Barakhamba Road, New Delhi be offered as security for the loans etc. given or to be given to the Res.No.2 herein, by the Bank, and that its director, Mr. A.c. Aggarwal was authorized, to effect legal mortgage of the said 20 Barakhamba Road, New Delhi. Page 533 is the letter dtd.20-10-93 written by Res.NO.2 to Res.No.l bank thereby offering as securities 14.5 acres of non-agricultural land situated at Gurgaon, Haryana besides the immovable properties situated at 16 and 20, Barakhamba Road, New Delhi. page 534 and 535 are the enclosed undertakings by the Res.No.5 and.7, both signed by Shri.A.C.Aggarwal as their Director, recording therein that the original title deeds in respect of 14.5 acres of non-agricultural land situated at Gurgaon, Haryan a and of Z0 Barakhamba Road, New Delhi were not presently available with them and they had undertaken to submit the same to the Bank immediately upon receipt I availability thereof.

I 4.6 Page 536-538 is the 'Agreement to create charge, executed on 09-10-13 by Res.No.5 and 7 in favour of the Bank in respect of the properties bearing No. 16 and 20 Barakhamba Road, New Delhi. Common seals of the said two companies (Res.No.5 & 7 herein) is stated to have been fixed pursuant to the afore-referred Resolutions passed by the Board of Directors at their aforementioned meetings held on 19.10.1993 in the presence of witnesses, one of them being Dr. Brindawan. 4.7 Page 540 is also an 'undertaking' of the same date given by the Res.No.5 herein in favour of the Bank in respect of prop erty at 16 Barakhamba Road, New Delhi wherein also the common seal of the said company is stated to have been fixed pursuant to a Resolution passed by its Boards of Directors at its meeting held on 19.10.1993. Page 544 is the 'Irrevocable General power of Attorney, executed by Res.No.S in favour of the Bank in respect of the property at 16 Barakhamba Road, New Delhi wherein also the common seal of the said company is stated to have been fixed in pursuance to the aforesaid same Resolution dated 19.10.1993. page 554 is the 'undertaking' executed by the Res.No.7 herein in favour of the Bank in respect of the property at 20 Barakhamba Road, New Delhi on which common seal of the said company is stated to have been affixed pursuant to the aforesaid Resolution of the said company at their meeting held on 19.10.1993. Similarly, page 55g is also an 'Irrevocable General Power of Attorney' by the Res.N o.7 infavour of the Bank in respect of property at 20 Barakhamba Road, New Delhi wherein also, the common seal of the said company is stated to have been affixed by virtue of the aforementioned same Resolution. All these documents display that Dr. Brindawan is one of the witnesses to the execution thereof.

{ ,,1 I (itt I . .ii l i ii .rL ll I 4.8 Page 569 is the 'General Form of Guarantee, dated 09.11 .1993 wherein Mr. Raj Kumar Gupta and the Res.No.S herein had stood as guarantors for the Res.No.2 herein. However, this General Form of Guarantee has no specific reference to any property whatsoever. 4.9 Page 274-276 is an 'Irrevocable undertaking' by the Res.No.7 and 5 herein in favour of the Bank recording therein that the said companies had agreed to secure the Bank for the advances etc. to the Res.No.2 herein putting at the disposal of the Bank certain properties, which included 16 and 20 Barakhamba Road, New Delhi and non- agricultural land at Gurgaon, Haryana with details thereof (the subject property is not a parl of the said Undertaking). The said Undertaking is stated to have the common seals of the said two companies and Dr.Brindawan is a witness to the execution thereof. 4.10 Page 318-319 is the 'Form of Memorandum of Deposit of Title Deeds' in respect of advance secured by equitable mortgage of immovable properties by Mr. A.c. Aggarwal on behalf of the Res. No. 5 herein, stated to be in respect of 14.5 acres of land at Gurgaon, Haryana, besides others. The said document records at its bottom that the original title deeds in respect of land at Gurgaon admeasuring 14.5 acres as per detailed sheet attached. However, neither the said document nor the sheet attached thereto is signed by anybody for and on behalf of any of the Res.No.2 to 7. These two documents are signed only on behalf of the Bank with its seal. The sheet attached thereto, records at Sr.No.2 about the Sale Deed No. 241 dated 21.05.1993 in respect of the land measuring 32 kanals situated at village Gwalpahari, District Gurgaon, Haryana (i..., ,,the subject property").

4. ll It appears that Dr.Brindawan, taking himself to be the individual and absolute owner of the aforementioned 32kanalsof land situated at Village Gwalpahari, District Gurgaon,Haryana in terms of rl

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a sale Deed *#01 dated 21.05.1993 (i.e., "the subject properry,,) sold a part thereof tb one Mr. Kishan Mehra in terms of Sale Deed No. 651 dated 16.02.1,996 (Page 80-97). There is mutation in the revenue records in the name of Mr. Kishen Mehra, the purchaser as also the jamabandi is in his name (Page 98 to 100). 4.12 The Applicant through his attorney, is stated to have purchased a portion of the disputed property [agriculture land admeasuring about 9 kanals 14 marlas (Rectangle No. 63, kila No. l6ll (5-lg) and 25 (3-16)l from Mr. Kishen Mehra in terms of Sale Deed No. 491 dated 01.05.2008, with the necessary mutations etc. effecting in the revenue records in its favour (Page 102 and 108).

5. CONTENTIONS OF THE APPLICANT: 5.1 That the Applicant is the owner of an "agricultural land,,, and not of "non-agricultural land", admeasuring about 9 kanals l4 marlas [Rectangle No. 63, Kila No. t6lt (5-18/ and 25(3-16)] situated at Village Gwalpahari, District Gurgaon, Hary ana. 5.2 That as per the Sale Deed No. 241 dated 2t.05.1993 in respect of 32 kanals situated at village Gwalpahari, District Gurgaon, Haryana executed by Shri Bharat Bhushan Bhatia (property of the Applicant is a part and portion thereof), the same was purchased by Dr. Brindawan in his individual and personal capacity and the Res.No.5 company herein was not/is not the purchaser thereof. A bare perusal of the said Sale Deed shall reveal that the purchaser therein is Dr. Brindawan; the stamp papers for the same have been purchased in the name of Dr. Brindawan; he at the bottom of the said Sale Deed has signed the same as purchaser thereof; the entire execution and presentation thereof for registration before the Sub-Registrar concerned is also in his personal name and simply because the description of the purchaser as o'Dr. Brindawan R. K. Towers pvt. Ltd.

ri 20 Barakhamba Road, New Delhi l l000l" will not make the Res.No.5 company as the purchaser thereof. 5.3 Subsequent conduct of Dr. Brindawan while selling a part of the said 32 kanals of land to Mr. Kishen Mehra in terms of Sale Deed No. 491 dated 01.05.2008 specifically records and notes that Dr. Brindawan to' be the individual owner of the same; he being in physical possession thereof; he is selling the same in his individual capacity and putting Mr. Kishen Mehra, on execution and registration of the Sale Deed in his favour, in physical possession. 5.4 That at no point of time, either the Res.No.5 or anybody else has taken any action of any nature against Dr. Brindawan for the sale of the property. In case, the Res.No. 5 was of the view that they were the real owners by virtue of Sale Deed No. 241 dated 21.05.1993 of the said land, as sought to be alleged by them now, they would have taken some action against Dr. Brindawan. 5.5 Referring to the sale Deed executed by Mr. Bharat Bhushan Bhatia and thereafter by Dr. Brindawan in favour of Mr. Kishen Mehra, it was strenuously argued that the execution thereof as also the presentation thereof before the Sub-Registrar concerned leave no doubt that the Res.No.5 was never the purchaser under the Sale Deed No. 241 dated 21.05.1993. 5.6 Making reference to Section 48 of The companies Act, it was argued that any Deed for and in favour of a company has to be executed by a person duly empowered to do so. Undisputedly, as also admitted by the Non-applicants, there is no Resolution or authority ever executed by the Res.No.5 in favour of Dr. Brindawan, authorizing or permitting him to execute any Deed for and on behalf of the Res.No.5. It was submitted that on the contrary, there is a specific Resolution passed by the Res.No.5 company dated

-a- 19.10.1993 authorizing its director, Mr. A.c. Aggarwal not only to offer non-agricultural land at Gurgaon, Haryana as security for the Res.No.2 herein but also to take all such actions to effect such a mortgage and to deposit the title deeds of the said non-agricultural land at Gurgaon with the Bank. 5.7 In this background, it was contended that since the Sale Deed No. 241 dated 21.05.1993 neither contains the common seal of the Res.No.5 company nor it is recorded that Dr. Brindawan is the authorized signatory of the said company nor it has been so prepared/drafted, executed or even presented for registration for and on behalf of the Res.No. 5 company, it only implies that the purchaser under the said Sale Deed was Dr. Brindawan and not the Res.No.5 company. 5.8 That Dr.Brindawan was never the director of the Res.No.5 and in this regard the Applicant had placed on record a certificate of the Chartered Accountant issued by him after scrutinizing and veriffing all concerned records including the records of the Registrar of companies that Dr. Brindawan was never ever a director of the Res.No.5 company (Page 109). The certified copies of the Form 32 under the companies Act for the period March l97g to April 2003 of Res.No. 5 company have also been filed (page. 444 to 4g2) to buttress his argument that Dr. Brindawan was never a director of the Res.No. 5 company. 5.9 It was further contended that it is only the Res.No.g Auction Purchaser and no one else who has alleged in its reply that Dr. Brindawan was a director of the Res.No.S company but has filed nothing to substantiate the same. The Res.N o.2 to 7 (i.e.,the original defendants) had specifically stated in their reply to the Application that Dr. Brindawan was a director of united Healthcare Ltd. and united Diagnostics International Ltd. where he was so appointed on

30.12.1996 and 01.10.1988 respectively and resigned from both the said companies on 03.02.1997.I1 was submitted that every company is a separate independent entity in law and even if some of the directors of the Res.No.5 company and the aforementioned two companies might be common, the same would not autom atically authorize Dr. Brindawan to act for and on behalf of the Res.No.5 company where he was never a director. 5.10 Further contended that the reliance of the Bank on the documents referred above, wherein Dr. Brindawan has signed as one of the witnesses to the execution of the said documents, will not make the Res.No. 5 as the purchaser of the land. 5.11 Referring to the Resolutions dated 19.10.1993, the Letter of Undertaking dated 20.10.1993 and another Undertaking dated 11.11.1993, it was submitted that the Res.No.5 had only authorized Mr. A.C. Aggarwal in respect of 14.5 acres of "non-agricultural land" situated in Gurgaon and qot about &ny "agricultural land", much less of subject matter of Sale Deed No. 241 dated 21.05.1993. It was fuither stressed that in none of the documents except in the sheet attached to the 'Form of Deposit of Title Deeds', there is even reference of the land i.e. subject matter of Sale Deed No. 241 dated 21.05.1993. Even the said 'Memorandum of Deposit of Title Deeds', though stated to have been executed by Mr. A.C. Aggarwal on behalf of the Res.No.2 or the Res.No.5 companies, does not bear any signatures on his behalf. Not even the detailed sheet annexed thereto, wherein recorded the Sale Deed No. 241 in respect of 14.5 acres of agricultural land at village Gwalpahari, District Gurgaon, Haryana, bears the signature or any endorsement of any nature by Mr. A. C. Aggarwal or even the common seals of those two companies. t

1l 6.1 That the Applicant in its MA has stated that the Res.No.5 company was the erstwhile owner of the land in reference and that Mr. Kishen Mehra had purchased the same from the said company; and once it has been so stated by the Applicant itself in the Application as originally filed, nothing more, either was or is required to be looked into and that the submission on behalf of the Applicant before the Hon'ble DRAT or before the Hon'ble High court or now before this Tribunal that Dr. Brindawan was the purchaser of the land in terms of Sale Deed No. 241 and not the Res.No.5 company is contrary to what was originally pleaded in the Application, more particularly when the same has not been amended. 6.2 Reference was made to the afore-referred documents bearing the signatures of Dr. Brindawan as a witness to submit that Dr. Brindawan was associated and/or concerned with the Res.No.S company, otherwise he would not have signed as a witness at all. 6.3 During the course of arguments, it was admitted by the learned counsel for the Bank that there is no Resolution by the Res.No.5 company of any nature, whatsoever, authorizing Dr. Brindawan to execute any document or Deed for and on behalf of the Res.No.S Company. 6.4 It was emphasized that by virtue of the sale Deed No. 241 dated 21.05.1993, it is the Res.No.5 Company who is the purchaser and not Dr. Brindawan. 6.5 That since the Res.No.5 Company was the purchaser under the aforementioned Sale Deed, the said company had rightly mortgaged the said agricultural land with the Bank and neither Mr. Kishen Mehra nor the Applicant would derive any rights therein.

6. CONTENTIONS OF THE RES. NO. 1/ BANK:

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7. CONTENTIONS ON BEHALF OF THE RES NO.2TO7 ORIG DE NO. 11 F1 7.1 That Dr. Brindawan was appointed as a director of united Healthcare Ltd. and United Diagnostic International Ltd. on 15.05.1992 and 01.10.1988 and he resigned on 03.02.1997. During the course of arguments, it was admitted by Counsel for Res.No.2 to 7 that Dr. Brindawan was never associated as a Director with the Res.No.S company. However, it was submitted that Res.No.5 and United Healthcare Ltd. and United Diagnostic International Ltd. are 'Sister concerns'. 7.2 In view of above, it was submitted that as per the Sale Deed No. 241 dated 21.05.1993, it was the Res.No.5 company who was the purchaser thereunder and not Dr. Brindawan.

8. CO ONS OF THE RESPONDENT NO. 8 AUCTION R: counsel for Res.No.8 adopted the contentions on behalf of Res.No.l bank and Res.No.2 to 7 and reiterated the events including the auction sale and execution of Sale Certificate etc. in favour of the Auction Purchaser, and submitted that the Application under disposal is not maintainable per se at the behest of the Applicant, in as much as an Application under order IX Rule 13 of Code of Civil Procedure lies only by a party to the proceedings and not by a third party. Reliance is placed on "Ram Prakash Aggarwal & Another Vs Gopi Krishan (Dead through LR's) & Others",2013 (5) SCALE 670.

9. Duly considered submissions and perusal the material placed on record.

10. The first issue is with regard to maintainability of the present Application by the Applicant per se as has been raised by the Res.No.8 Auction Purchaser.

11. Perusal of record reveals that such an objection about the maintainability of the Application by the Applicant in these proceedings for setting aside the exparte Judgment was never raised at any earlier point of time, not even in the replies filed on the records of these proceedings after the Remand order dated 09.10.2013 of the Hon'ble DRAT as confirmed by the Hon'ble High court. This aspect as is now sought to be raised by the Res.No.8 Auction purchaser was also not raised by any of the respondents even before the Hon'ble

1. DRAT or eiren before Hon'ble High court, Thus, it shail not be ! appropriate f& them to raise such an issue at the stage of final t" hearing.

12. Not only this, the issue with regard to decision of the Application on merits has also been dealt with, by the Hon'ble DRAT in its order dated 09.10.2013, the relevant portions of which are being reproduced here-as-under for ready reference:- "13. In this reference, this is to be seen that the Tribunal hos not decided the clinching issues and has given reason for dismissal of the application that once the judgment is passed after adjudication then the remedy to prefer an appeal before the DRAT is available to the appellant. In this reference, this is to be seen that the appellant was not a party to the T.A. No. 1172/1998 and whatever was decided was not binding to the appellant as the principle of res judicata applies to the parties to the suit or litigants qnd the appellant was not a defendant in the said case who could have objected to the r:elief claimed by the Bank in the civil suit therefore, the Tribunal was wrong in holding that the remedy to the appellant ts before the DRAT, as + : \

li the applicationfor setting aside the ex-parte order is not proper remedy and the reason given by the Tribunal cannot be approved. If the appellant has the remedy before the DRAT then why not before the DRT agatnst the prejudicial order of DRT if passed in his absence and therefore, application for setting aside the judgment was rightly moved.

14. In this reference, this is to be seen that whether the remedy before the Civil Court was available to the appellant. Admittedly the appellant was not a party before the Debts Recovery Tribunal when the civil suit was filed and after transfer was decided by the Tribunal. In view of the aforesaid, the only remedy available to the appellant was to file an application,for setting aside the ex-parte judgment or appeal of the judgment by which the property of which was claiming right was treated to be a mortgage one. The appellant to challenge the order passed by the Debts Recovery Tribunal on 16.08.2000 by which the Recovery Certificate was issued was having no remedy before the civil Court for challenging the order passed by the Debts Recovery Tribunal. The only remedy was to opply for setting aside the exparte judgment or part of it by which his property was held to be mortgaged property l5t A 16y With regard to the objectioru raised by the auction purchaser that he is at no fault he has purchased the property in the auction conducted by the Recovery Officer while executing the Recovery Certificate and this appellate Tribunal has also accepted the highest bid by enhancing further omount in the bid offered by the auction purchaser and the order passed by this Tribunal has also been upheld by Hon'ble High Court. This is also to be seen that in the present case before this Tribunal and also before the Hon'ble High Court the present appellant.was not a party and therefore, the principles of res iudicatai,;rril not apply so far as the present appellant is - l5 concerned. An application was already filed by the appellant before the Debts Recovery Tribunal seeking to set aside of the part of exparte judgment passed by the Tribunal on 16.08.2000 by which the Recovery Certificate was issued and thus, the appellant was not silent and was also not sitting idle and the application was filed requesting for setting aside the part of the judgment passed by which the Tribunal has treated the property to which he was owner and was not entitled to raise any objection before any other authority. The Tribunal in fact should have adjudicated the case of the appellant deserved coltsideration on merits after hearing but the Tribunal at no 1' pd/nt of time touched the clinching issues raised but on the co,ntrar! has observed that the Debts Recovery Tribunal since has decided the case after adjudication therefore, the remedy was available to the appellant to prefer an oppeal to this Appellate Tribunal against the order passed by the Debts Recovery Tribunal, even though, he was not a party. The question as such raised prima facte were liable to be considered by the Debts Recovery Tribunal and the Debts Recovery Tribunal should not have thrown the application on the technical ground. once there was a judgment passed by the Tribunal and the said judgment if ultimately was wrong then the Tribunal ought to have corrected the same and the Tribunal should have considered the application moved by the appellant for setting aside the judgment and order on mertts before dismissing the same. 17,

18. The learned counsel appearingfor the auction purchaser submitted that in the present case in three times the auction of the property in question was fixed but the appellant has not raised any objection to the same. In this reference, this is to be seen that in the present case the auction was notified by the - Recovery Officer and the Recovery Officer was to - i\

execute the Recovery Certificate in terms to the provisions contained in second schedule of Income Tax Act which provides that for recovery of the amount even though the objection was submitted by the appellant before the Recovery Officer, the Recovery Officer was bound to execute the, Recovery Certificate in accordance with the order passed by the Presiding officer i.e. the Recovery Certificate could not have been withhold by the Recovery Officer to decide the objection. Therefore, no forum was available to submit its objection to the Recovery Officer and he rightly moved an application to the Tribunal for setting aside the exparte judgement."

13. Above observations/directions of the Hon'ble DRAT have been confirmed by the Hon'ble High Court and have not been varied. The respondents were parties to the said proceedings. Therefore, this issue that the application has not been rightly moved by the Applicant before this Tribunal has been finally heard and decided by the superior courts and the same shall be res judicata between the parties and shall bind the same. It is not thus now open to the respondents to agitate this issue again, that too, for the first time, at such a belated stage and pray for not deciding the same on its merits. It is trite law that even if a finding between the parties by superior courts is effoneous, ffioy be illegal, however, the same shall still be binding between the parties. Reliance in this regard is placed upon the Judgement of the Hon'ble Supreme Court in the case "Vasudev Dhanjibhai Modi Vs Rajabhai Abdul Rehman & Others", AIR 1970 sc 1475.

14. Reliance by the learned counsel for the Res.No.8 Auction Purchaser on the case titled "Ram Prakash Aggarwal & Another", supra, may not be applicable in the facts and circumstances of the + + - -

I t7 present case. Firstly, because the said application in that case was filed under Order IX Rule 13 of Code of Civil procedure before a Civil court, which may be bound by the said Code, whereas as per the provisions of Secti on 22 of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, this Tribunal is not to be bound by the procedure laid down by the code of Civil procedure, save and except of certain matters only, and is to be guided by the principle of natural justice. Secondly, there was no specific finding between the parties by the superior courts in the Ram Prakash Aggarwal & Another, suprq, as in the present case. The Application, therefore, cannot be dismissed on technicalities and is to be decided on merits in compliance of the observations/directions as the same are binding.

15. with regard to the contention that the applicant in its MA had itself stated that the Res.No.5 Company was the erstwhile owner of the disputed property, it was explained by the Counsel for the Applicant that the original Application was filed as per the limited knowledge with whatever information as was then available, thought and/ or perceived by the Applicant to be correct atthat relevant time and the respondents in the present proceedings had always known the real contentions and controversy between the -parties. The said controversy was also crystallized for consideration of this Tribunal by the Hon'ble DRAT as affirmed by the Hon'ble High Court. All the respondents were fully aware about the real controversy between the parties which, tnter alia, is "as to whether the purchaser under the Sale Deed No. 241 dated 21.05.1993 was the Res.No.5 company or Dr. Brindawan in his individual capacity". If this Tribunal will come to conclusion that in the stated Sale Deed, the purchaser was Dr. Brindawan and not the Res.No.5 Company, then as per the directives of the Remand Order, the alleged mortgage of the land, subject matter of the said$ale Deed, which includes the part and portion of the land ' ,r'. finally so$ and in possession of the Applicant, will be held to be illegal and wrongly mortgaged, and Recovery Certificate will be -- - - l l8 modified and amended accordingly with all consequential directions. Thus, it being the case, the statement, if any made in total ignorance of all the documents, as filed later on the records of the Hon'ble DRAT and duly taken cognizance of, shall be of no consequence.

16. The submission of the Res.No.8 Auction purchaser that it was not at fault, for he had purchased the disputed property in the bid process which has become final, is also bereft of merit. Reference may be made to "K. Balan vs state Bank of rndia", MANU/IG 107271201 l, wherein Hon'ble High Court of Kerala was pleased to observe:. "...There is no guarantee -for title in a court auction sale. The Auction Purchaser steps into the shoes of the judgement debtor. Any defect in title of the judgement debtor would be defect in title of the Auction Purchaser as well... "

17. Thus, having decided the objections being raised by the counsels for the respondents, I proceed further to examine the pivotal question of controversy on merits between the parties as to whether the under the Sale Deed No. 241 dated 21.05.1993 (page 253 of compilation) in respect of agricultural land admeasuring - - .- about 32 Haryana situated at Village Gwalpahari, District Gurgaon, disputed property") is Res.No. 5 company or Dr. Brindawan.), For this, one will have to first look at the said Sale Deed itself. a) Details of the stamp paper purchased: Sr. No. 554 dated 17.02.1993 i - Rs.52,500/- (Rupees Fifty Two Thousand Five Hundred only) Bharat Bhushan Bhatia s/o Baldev Raj Bhatia r/o I Delhi ,-.

' l t9 C. No. 17 dated 17.2.1993 Sale Deed Rs.4,20,000/- in f/o Dr. Brindawan sd/- Stamp Vendor b) Name of the Purchaser: Dr. Brindawan R.K. Tower P. Ltd. 20, Barakhamba Road, Delhi I 10001 . c) Siqnature of the Purchaser at the last pase of the Sale - - --. Deed Brindawan (only) (with no seal or stamp of any company whatsoever)

18. From a bare perusal of the above mentioned Sale Deed, it cannot be denied that there is neither any authority described or noted on behalf of the Res.No.5 authorizing Dr. Brindawan to execute this Sale Deed on their behalf, nor it is recorded or noted anywhere in this Sale Deed that Dr. Brindawan had been executing and presenting this Deed for registration for and on behalf of the Res.No.5 company.

19. Section 48 of the Companies Act, 1956, as was relevant and in force at that time, specifically provides that a company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney to execute deeds for and on its behalf and such a deed signed by such an attorney on behalf of the company be under its seal. Undisputedly, there is no authority or resolution of any nature whatsoever in favour of Dr. Brindawan to sign any Deed for and on behalf of the Res.No.S company. I

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20. Even otherwise, Dr.Brindawan was not even a director of the Res.No.5 company. The Applicant has filed on record not only a certificate of chartered Accountant issued by him after scrutinizing and veriffing all concerned records including the records of Registrar l of Companies that Dr.Brindawan was never a Director of the Res.No.5 company but also the certified copies of Form 32 under the Companies Act for the period March l97B to April 2003 of the Res. No. 5 company which also show that Dr. Brindawan was never a Director of the Res.No.5 company. The submission of the Res.No.2 to 7 that since Dr. Brindawan was once a director of two other companies, namely, united Healthcare Ltd. and united Diagnostics International Ltd. where he was so appointed on 30.12.1996 and

01. 1 0. 198&respectively but resigned therefrom on 03.02.1997, which \ are stated tqi be the 'sister concerns' of the Res.No.S, it will ipso facto J\ make him ''the director and authorized signatory of the Res.No.5 i company, is, against law. Not only no material whatsoever has been placed on record to the said effect but even otherwise, every company I is an independent entity in itself and commonality of some of the Directors between two companies, which even if presumed, will not in any manner make Dr.Brindawan a Director andl or an Authorized Signatory of the Res. No.5 company. The contention of the counsel for the bank that Dr.Brindawan is not a stranger to the Res.No. 5 in as i much as he had signed certain documents noted hereinbefore, and therefore he would definitely have some relation or connection or association with the Res.No.5 company, and thus, this Sale Deed No. 241 should be read to have been executed by Dr.Brindawan on behalf of Res.No.5 company does not inspire any confidence and is untenable in the eyes of law. 2I. 'fhe subsequent conduct of Dr.Brindawan after Sale Deed No. 241 dated 21.05.1993 is also relevant and cannot be ignored. The disputed jroperty was mutated in the relevant revenue records on 19.06.1943 in the name of the Purchaser under Sale Deed No. 241

dated 21.05.1993. Dr. Brindawan had sold a part of the aforementioned disputed property to Mr. Kishen Mehra in terms of Sale Deed No. 641 dated 16.02.1996 (page 80 of the compilation). The portions of the said Sale Deed in so far as they may be relevant for the controversy in issue are as follows:- "This sale Deed is executed on this I6'h day of Feb. 1996, by lJindrawan, s/o Ktshori Lal r/o 81, Shiv Appt. Kalkaji, N. Delhi Il.K. Tower, Private Limited, 20, Barakhamba Rood, New I Delhi, hereinafter called the VENDOR. I CN: DL/02/007/132163 dt. 17.1.95 ERO Kalkaji, N. Delhi......" "...V[hereas the Vendor is sized and possessed of in his own right as the full and absolute owner and in possession of and otherwise well and sfficiently entitled to all that piece and parcel of agricultural Land Khewat/ Khata No. 164, Intkal No. 1139, Mustatil No. 63 Ka Kila No. 16 MIN, (3-17) 25 (3-16) Kull Rakba 9 Kanal 13 Marla situated at Village Gawalpahari, Tehsil Sohna I Distt. Gurgaon, (Haryana) (hereinafter referred to as "the said land")...." " .....And whereas due to his legal need and requirements the VENDOR has agreed to sell arud the VENDEE has agreed to purchase... .... " " ......1. The said land shall quietly entered into and upon and be enjoyed in any manner whatsoever and the rents and profits received there ,fro* by the Vendee without any interuuption or disturbance by Vendor or any other person claiming through or under Vendor and wtthout any lawful disturbance and any interruption by any other person whosoever ... .. " ".....11. The interest, title hereby transferred, conveyed, assigned and assured subsists and the Vendor has good right, full power and absolute authority to - -- - ,- t

gront, convey, transfer, assign and assure the said land.... " ".....111. That the actual physical vacant possession , of the said land has been delivered by the Vendor to the' Vendee on the spot at the time of execution of this deed. Now the Vendor has been left with no right, title, interest, claim or concern of any nature with the said land and the Vendee has become the absolute owner of the said land.... " "...V. The Vendor undertakes to have the said land mutated in favour of the Vendee in reyenue records and other concerned authorities otherwise the Vendee con also get the said land mutated in its name in revenue records and other concerned authorities on the basis of this sale deed or its certified true copy...." "VL.. The Vendor assures the Vendee that the said land is free from all kinds of encumbrqnces such as Sale, Gift, mortgage, disputes, litigation, acquisition, attachment in the decree of any cootrt, lien, court injunction, lease etc. The Vendor declares and assures that the content of these presents are true & coruect and ,f ,ny time hereafter the , assurances & declarations contained hereinabove are found otherwise or proved to be incorrect or due to the claim by any portion of the said land hereby conveyed is taken oway or goes outfrom the possession of the Vendee on account of ony reason the Vendor hereby convenant that they shall be jointly against all losses, costs, damages by the Vendee and for payment of such amounts, compensations and damages, as the Vendee may claim, the other properttes moveable and / or ,, immovableandperSonSoftheVendorshallbeliable....,' - - 1,, -

Z)

22. From the above, it is amply clear that Dr. Brindawan had sold the property, subject matter of Sale Deed No. 641 dated 16.02.1996, to Mr. Kishen Mehra as an individual and exclusive owner thereof. In fact, the necessary mutation in the revenue records has also been effected ird, the name of Mr. Kishen Mehra on the said basis. Jamabandi is also in the name of Mr. Kishen Mehra in the revenue records wherein it is also recorded that a boundary wall has also been raised by him around the plot of land purchased by him under the aforementioned Sale Deed No. 641 dated 6.02.1996.

23. No explanation has been placed on record by the Respondents as to how Dr. Brindawan handed over the actual physical vacant possession of the disputed property or even apart thereof as the case may be, to Mr. Kishen Mehra who continued to be in unintemrpted possession thereof till the time Mr. Kishen Mehra sold the same to the Applicant vide Sale Deed No. 491 dated 01.05.2008 and put the latter into physical vacant possession thereof. No action of any nature has been taken by Respondents either to regain possession from Mr. Brindawan or Mr. Kishen Mehra or against anybody else. Further, the documcnts relied upon by the Bank itself show that the Resolution dated 19.10.1993 or the Undertaking dated I I .1 1 .1993 do not relate to the aglicultural land (i.e., the disputed property), but relate to some non-agricultural land at Gurgaon.

24. it is undisputed on the record that under the provisions of Punjab Land Revenue Act, 1887, as applicable, and M.P. Krishi Udhar i)ravartan Tatha Prakirn Upabandha (Bank) Adhiniyam, 1972, any modgage of an agricultural land was required to be recorded in the records of the concerned authorities thereunder. No initiative of that nrrlure has also been undertaken by any of the respondents.

25. i:r these circumstances, there is no escape from the conclusion that ii:s.No.S had no authority to mortgage the agricultural land -- - + + ,t

which is subject matter of Sale Deed No. 241 dated zl.o5.lgg3, more particr-rlarly in so far as it relates to the property of the Applicant being agricultrrral land admeasuring about 9 kanals 14 marlas (Rectangle No. 63, kila No. 16ll (5-18) and 25 (3-16)l situated at village Gwall.tcrlrurz, District Gurgaon, Haryana, with the Bank nor was it eveil r'.:solved by the said company to do so (it was for non- agricriliural land and not the disputed property being agricultural land).

26. Ol a conspectus of materials placed before me, I am of the consicl-':'cd opinion and accordingly direct : It ('r) Tliat the property of the Applicant (being agricultural t\ l:rrrd adrheasuring about 9 konals 14 marlas (Rectangle No. 63, ; ,:la No. 16ll (5-18) and 25 (3-16)l situated at Village i 'valpahari, District Gurgaon, Haryana could not have been ' 'r'tgaged by the Res.No.2 to 7, jointly and/or severally, as the .:.iSo rrr?1l be, with the Res.No.l - Bank and that it was wrongly ' ,rtgaged. i',) Consequently, the exparte judgment dated 16.08.2000 r i the Recovery Certificate then issued thereunder by this bunal in TA No. I172 of 1998 titled "Bank of Baroda Vs I :rited Soya Products Ltd. & Others is modified to the effect to cte therefrom the property of the Applicant being icultural land admeasuring about 9 kanals 14 marlas octangle No. 63, kilaNo. 16ll (5-18) and 25 (3-16)l situated ,,' illage Gw alpaharu, District Gurgaon, Hary ana. -

i t €'

i ; That the transfer/sale certificate issued in favour of the i -'s.No.8 shall be so amended and rectified to delete therefrom r 'r,: afore-described property of the Applicant. , iir the above observations, the present MA is finally I 'cord be consigned to record room. K.Sinha) Presiding Officer ..- dispos, I l - /i aa