Tukaram Shankar Marne vs Canara Bank on 19 August 2023

Judgment

(Delivered on 19th August, 2023)

1. By this application, the applicant who is alleged to be true owner of two suit flats i.e. Flat No.1 and 2 situated at S.No.7, Hissa No.6.4.5 at Maharshi Karve Nagar Hingane (BK) Pune has claimed following reliefs: (A) The charge kept by this Hon’ble Court on the captioned properties of the Applicant, in the light of the final judgment and order passed in the OA No.66/2009 may kindly be removed and the Hon’ble Recovery Officer of this Hon’ble Court may kindly be intimated accordingly in the RP No.42/10 and final judgment may be kindly be modified to that, extent. (B) It may kindly be declare that the captioned properties stated in the Schedule A and B are not mortgaged with the defendant No.1 towards the liabilities of the defendant No.2.

2. The averments in the application can be summarized as under:

The respondent No.2 herein had availed loan of

Rs.12 lakhs from respondent No.1 herein bank in the year 2006 for purchase of two suit flats. Respondent No.3 herein stood as guarantor to the said loan transaction. The respondent No.2 herein created equitable mortgage of two suit flats by depositing registered Agreements of Sale with respondent No.1 herein bank. The respondent No.2 herein failed to repay the loan and therefore, respondent No.1 herein bank filed recovery application bearing OA No.66/2009. The Summons were issued to respondent Nos.2 and 3 herein but they failed to appear in the said OA No.66/2009 proceeding. Therefore, the Original Application has been decided ex parte by Judgment dated 9th December, 2009 against respondent Nos.2 and 3 herein. By the said Judgment, charge on mortgaged two suit flats has been kept by this Tribunal for recovery of loan.

3. On the basis of Recovery Certificate, Recovery Proceeding No.42/2010 initiated against respondent Nos.2 and 3 herein and Attachment Warrant was issued and Panchnama to that effect was prepared on 20th February, 2015. At that time, on enquiry and after collection of documents the applicant came to know that two suit flats owned by him have been mortgaged by respondent Nos.2 and 3 herein by deposit of Agreements of Sale.

It is case of the applicant that he has not executed the disputed Agreements of Sale in respect of mortgaged two suit flats in favour of respondent No.2 herein. Therefore, these documents are fabricated one and his signatures thereon have been forged. The applicant herein do not know respondent No.2 herein and therefore, it appears from said Agreements that some other person has posed himself as “Tukaram Shankar Marne” i.e. applicant herein and executed the Agreements of Sale of suit flats in favour of respondent No.2 herein. Thus, there is fraud and impersonation committed by third unknown person and the respondent Nos.2 and on basis of said fictitious documents, the respondent No.2 herein has availed loan from respondent No.1 herein bank.

4. It is case of the applicant herein that if it is assumed for a moment that the two suit flats have been validly mortgaged by respondent No.2 herein in favour of respondent No.1 herein bank, the same cannot be treated as security for want of ownership of respondent No.2 herein. Therefore, charge kept thereon is required to be lifted by modifying the Judgment and Order passed in OA No.66/2009. Hence, this application.

5. The respondent Nos.2 and 3 remained absent though Notices were served by way of publication and therefore, this application proceed ex parte against them.

6. The respondent No.1 herein bank by filing Reply (Exhibit-21) resisted that application. It is contended that the respondent No.2 herein had availed loan facility by mortgaging two suit flats as a security for repayment of said loan. He has deposited title deeds i.e. Agreements of Sale of both suit flats with the respondent No.1 herein bank. On that basis, the respondent No.1 herein bank sanctioned and disbursed the loan after taking proper care and diligence.

7. It is contended that since Agreements of Sale are not proved to be forged, their validity cannot be challenged by the applicant. Thus, valid mortgage charge on the suit flats has been created in favour of respondent No.1 herein bank and therefore, it has got right to sale the suit flats for recovery of dues not paid by the respondent Nos.2 and 3 herein. In view of these facts, the application may be rejected.

8. From the pleadings of both the parties, the following points arise for my determination and I record my findings as under:

(1) Whether applicant is entitled for reliefs as claimed?

(2) What order?

Findings:

1. Point No.1 – In the negative.

2. Point No.2 – As per final order.

Reasons

9. Heard arguments on behalf of both the parties. The learned Advocates appearing for both the parties in their arguments reiterated facts mentioned in the application and reply, respectively.

10. Perused the documents produced by both the parties and case of Anil Nandkishor Tibrewala and another Vs. Jammu and Kashmir Bank Ltd. reported in 2007 (3) Bom.C.R. 941 produced by the applicant. As to Point Nos.1 and 2

11. It is the case of the applicant that he has not executed disputed Agreements of Sale in respect of two suit flats in favour of respondent No.2 herein. He has not signed those documents and photograph affixed on the said documents are not of him. He has produced Certificate issued by Saraswat Co-operative Bank Ltd. to show specimen of his signature. Further, he has produced copy of Aadhar Card and Driving Licence bearing his photographs to show that photograph affixed on disputed Agreements of Sale and signature thereon are not of him.

12. According to applicant, some unknown person might have forged his signatures and executed disputed Agreements of Sale in favour of respondent No.2 herein. Thus, there is forgery and fraud committed in respect of sale transaction of suit flats.

13. However, it is to be noted that the applicant herein has to prove forgery and fraud and this Tribunal has no jurisdiction to decide the same. Though applicant herein has filed Police complaint against respondent No.2 herein and unknown person who has forged his signatures in the year 2015, the applicant did not endeavor to follow with Police complaint. He has not approached superior officer of concerned Police Station or filed private criminal complaint against respondent No.2 in the Court of Law till today. This conduct of the applicant shows that he is not diligent.

14. Admittedly, the respondent No.2 herein by depositing disputed Agreements of Sale of two suit flats with respondent No.1 herein bank created equitable mortgage as a security for repayment of loan sanctioned to him. Since respondent No.2 herein failed to repay loan, the respondent No.1 herein bank filed OA No.66/2009 against respondent Nos.2 and 3 herein for recover of outstanding amount. The said OA No.66/2009 has been decided ex parte against respondent Nos.2 and 3 as they failed to appear. Since the suit flats have been validly mortgaged with respondent No.1 herein bank, this Tribunal has kept charge over these two suit flats. Thus, there is no illegality found therein.

15. In view of these facts, the applicant is not entitled for reliefs as

claimed. Hence, application is liable for dismissal. Therefore, by answering these points, I pass the following order:

ORDER

A. The application is hereby dismissed. Pronounced in open Court

Place : Pune Date 19.08.2023 Sd/- (Dilip G. Murumkar) Presiding Officer Debts Recovery Tribunal, Pune