R BHUVANESWARI vs PUNJAB NATIONAL BANK on 29 April 2021

**ORDER**

1. 1. This Appeal No.7/2012 filed under Section 30 of the Recovery of Debts and Bankruptcy Act, 1993, to set aside the impugned order dated 17.07.2012, passed by the Ld. Recovery Officer, of this Tribunal, in I.A.No. 517/2012, in R.P.No.11/2011 in D.R.C. No.11/2011 in O.A.No.80/2007.

2. 2. This case is taken up for passing orders based on the pleadings/materials produced and also with the consent of the parties, having filed the Written Arguments and without making any oral arguments in the case.

3. 3. The Appellant being a third party filed a petition before the Ld. Recovery Officer, of this Tribunal claiming that the Appellant is a bona-fide purchaser to the extent of land 0.82 acre, in S.F. No.54/1B2 &

1. 54/2B1. The said land was purchased from the Respondents No.2 to 5 and the said sale was also registered at Sub-Registrar Office Thondamuthur in Coimbatore Vide Document No. 52 of 2004.

4. The Appellant further claims that on 19.6.2012, she came across the paper publication of a Sale Notice dated 20.5.2012 that the Recovery Officer, DRT, Coimbatore, has issued a Proclamation of Sale to an extent of 1.25 acres of land, out of 03.20 acres of land, in which the Appellant apprehends that the land purchased by the Appellant may also had included. However, having not clear about the boundary mentioned in the said land, the Appellant filed the petition before the Ld. Recovery Officer so as to clarify that the Appellant's land is not included in the Sale Notice and is not sold by the Ld. Recovery Officer inadvertently or otherwise.

5. The Respondent Bank having contested the case before the Ld. Recovery Officer and the Ld. Recovery Officer having held that the Appellant cannot stake any claim over the land in which the Respondent Bank obtained the DRC and is being sold, which is an extent of 1.25 acres of land in S.F. No.54/02 and the said property was mortgaged by one Smt.Chinnamaarakkal against the loan obtained by the M/s. Kannika Creations, a Proprietorship firm and the property has a specific boundaries in S.F.No.54/02 out of 3.24 acres in Theethipalayam Village, Coimbatore. The Final Order having passed and DRC is issued and thereby, the Ld. Recovery Officer enforced the claim over the property. Therefore, the Proclamation of Sale was issued in respect of the schedule property, which is in accordance with the Law.

6. The Appellant having filed the Application before the Ld. Recovery Officer, without clarifying the boundaries of the property of the Appellant, the property cannot be sold, is nothing but a mere surmise.

7. The Respondent Bank also submitted that the mortgage of the property by Smt. Chinnamaarakkal was effected way back in the year

1998, more specifically on 17.6.1998, with M/s. Nedungadi Bank Ltd. Later M/s. Nedugandi Bank Ltd. got merged with M/s. Punjab National Bank. Whereas, Smt. Chinnamaarakkal deposited the Title Deed viz. the Sale Deed dated 29.11.1961 Regd. as Document No.360/1961 with the M/s.Nedungadi Bank Ltd., with an intention to create the mortgage by deposit of title deeds and thereby, created an equitable mortgaged with the Bank and the property has specific boundaries of an extent of 1.25 acres out of 3.24 acres in S.F.No.54/02 in Theethipalayam Village, Coimbatore. Thereafter, the said property has been assessed in the name of Smt. Chinnamaarakkal under S.F.No.54/2B having Patta bearing No.311. The extent of the landed property in S.F. 54/2B is an extent of 0.52 hectares. Hence, the property of Smt. Chinnamaarakkal can be identified easily. Therefore, no confusion arises over the schedule of property, which is attached and sold by the Ld. Recovery Officer.

8. The submission of the Appellant that Smt. Chinnamaarakkal conveyed the property to an extent of 1.25 acres of land & 1.28 1/2 acres of land in S.F. No.54/2B1 & S.F.No.54/B2 respectively in favour of Ms. Pappathi @ Maragatham under the Regd. Sale Deed dated 21.12.1998 and the said Pappathi @ Maragatham is none other than the daughter of Smt. Chinnamaaraakkal, who claims to be the vendor of the Appellant and the Pappathi @ Maragatham sold the property to the Appellant under the Regd. Sale Deed Dated 12.01.2004, registered as document No.52/2004 acquiring a title of an extent of 46 cents in S.F.No.52/2B1 and 56 cents in S.F. No.52/2B2, with specific boundaries. But, this submission of the Appellant has nothing to do with the Recovery Proceedings initiated by the Ld. Recovery Officer of the DRT. Even if the property form part of the attached property by the Recovery Officer, the purchase by the Appellant is only subject to the mortgage with the Respondent Bank.

9. Therefore, if the Appellant obtained any Sale Deed over the property, which is mortgaged with the Bank, the property is answerable to the claim of the debts due to the Bank for the reason being that the mortgage with the Bank is prior to the Sale Deed which got executed in favour of the Appellant. The mortgage shall run with the property under the provision of the Transfer of Property Act and the elementary principle of the law is that the "*once the mortgage is always a mortgage*", unless it is redeemed by the mortgagor. Therefore, this Tribunal does not find any illegality with the order passed by the Ld. Recovery Officer of this Tribunal. The Ld. Recovery Officer has rightly dismissed the Claim/Obstruction petition by passing the impugned order.

10. The Ld. Counsel for the 7^th Respondent submitted that the Respondent is the bona-fide Auction Purchaser and participated in the auction conducted by the Ld. Recovery Officer of the Tribunal and also paid the entire sale consideration of a sum of Rs.30,15,000/- . Hence, the purchaser is entitled to get possession and Title of the property. It is also the submission of this Respondent that the interests over the property of the Respondent is required to be protected in terms of the judgement passed by the Hon'ble Apex Court in *Janata Textiles vs. Tax Recovery Officer, 2008(12) SCC 582*. The Respondents 2 to 5 having sold the property to the Appellant and they being the LRs of Smt. Chinnamaarakkal, the property is answerable to the claim of the Respondent Bank and the LRs having failed to discharge the loan liability, the Appellant shall not claim as a bona-fide purchaser from her vendors. The Appellant without verifying Title Deed of the Property and having committed negligence in tracing the Title of the Property, the Appellant cannot have a better Title than this Respondent.

11. This Tribunal having considered the pleadings/material produced on record is the view that the Appellant failed to prove the claim before this Tribunal by adducing necessary evidence so as to grant the relief, if any claimed by the Appellant. The Appellant filed this Appeal only to take a chance to test the apprehensions of her that, whether the property sold by the Ld. Recovery Officer form part of her property or not.

12. This Tribunal shall not act upon mere surmise of the Appellant. It is the duty of the Appellant to prove her claim before this Tribunal by adducing proper evidence. Once the claim is instituted by the parties, It is the duty of the parties to prove their claim rather than ask the opposite party to confirm whether the claimed property is excluded in the sale or not. Therefore, the Appellant required to be affirmative on her claim.

13. The Appellant having failed to establish any positive claim over the property sold by the Ld. Recovery Officer, this Tribunal is the view that, the Appeal lacks on merits. Therefore, the Appeal is liable to be dismissed devoid of any merits.

14. In the result, the Appeal No.07 of 2012 stands dismissed, with no order to costs.

A copy of the order be communicated to all the parties concerned by the Registry of this Tribunal.

(Dictated to my PS directly on the Computer, corrected and pronounced by me in the Open Tribunal on this the 29^th Day of April, 2021).

**[M.P. BALASUBRAMANIAN]** **PRESIDING OFFICER**