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2015 Supreme(Mad) 1031
HIGH COURT OF JUDICATURE AT MADRAS
SATISH K. AGNIHOTRI AND M. VENUGOPAL, JJ.
A. Vijayalakshmi – Appellant
Versus
The Chairperson, Debt Recovery Appellate Tribunal, Chennai & Others – Respondents
W.P. No. 23298 of 2014 & M.P. Nos. 1 & 2 of 2014
Decided On : 24-02-2015
For the Petitioner:P. Rajendran, Advocate
For the Respondents:R2, Geetha for M/s. Rajinish Pathiyil, R3, A. Edwin Prabakar, Advocates
The conclusive finding that the property was not ancestral and the lack of legal rights of the petitioner influenced the court's decision.
Headnote:
Hindu Undivided Family Property - Debt Recovery - RDDB Act 1993 - Section 26(1)
Fact of the Case:
The petitioner, a legal heir, contested the auction sale of ancestral property mortgaged as a third-party guarantor. The court analyzed the loan, settlement terms, and auction proceedings, and found the property not to be ancestral, upholding the auction sale.
Finding of the Court:
The court found that the property was not ancestral, the auction sale was valid, and the petitioner's claim lacked merit.
Issues: Dispute over ancestral property, auction sale validity, and petitioner's legal rights.
Ratio Decidendi: The court upheld the auction sale based on the conclusive finding that the property was not ancestral and the petitioner's lack of legal rights.
Final Decision: The Writ Petition was dismissed, and the parties were left to bear their own costs.
M. Venugopal, J.
1. The Petitioner has focused the present Writ Petition praying for passing of an order by this Court in calling for the records relating to the order passed by the First Respondent/Chairperson, Debt Recovery Appellate Tribunal, Chennai, in M.A.No.97/2007, dated 25.07.2014.
2. According to the Petitioner, she is one of the Legal heirs of late A. Kasturirangachar (who was originally the Sixth Respondent) and a third party guarantor to the loan extended by the Second Respondent Bank to one K S D Extrusions. Her father mortgaged 'C Schedule property' namely, the property bearing No.7, Eastern Portion of the House formerly bearing No.49, situated at I Main Road, I A Cross, Krishna Block, Seshadripuram, Bangalore 560 020 with building thereon with stated boundaries and in fact, the said property came into the hands of her father by means of a registered partition deed dated 05.10.1961. As a matter of fact, her father inherited the aforesaid property (which was one among the properties of the Hindu undivided Family property) which has a character of an ancestral property.
3. The stand of the Petitioner is that when her father stood as one of the guarantors for the loan extended to K S D Extrusions, the Bank insisted that along with her father (who was not in good health) her brother, necessarily had to sign all the loan documents as a guarantor and this proves beyond doubt that C Schedule property is one among the Hindu Undivided Family Property. The Bank insisted that all the male members of the family to sign the loan documents which was complied with without an approval of the female family members.
4. It is the version of the Petitioner that Hindu Undivided Family property was mortgaged and it was not for the benefits of her father and brother but it was mortgaged in the capacity as a third party guarantor to the loan extended to K S D Extrusions by the Second Respondent/Bank.
5. Advancing his argument, the Learned Counsel for the Petitioner contends that in O.A.855 of 1999 none of the female members were originally party to the proceedings and the Petitioner along with her sisters were brought on record as legal heirs of the Sixth Respondent (Late father A. Kasthurirangachar) and all the family members were exonerated from making any claim, which was not challenged by the Second Respondent/Bank. In fact, O.A.No.855 of 1999 came to be allowed by the Debt Recovery Tribunal, Bangalore, certifying the claim of the Second Respondent at Rs.1,11,22,208.45 through its order dated 26.12.2003 and immediately, the Respondents 1 to 6 projected an application, praying to set aside an ex-parte order dated 26.12.2003. The said application was numbered as M.A.No.35 of 2004 and the same was filed within the period of limitation specified and when the matter was taken up, the Second Respondent/Bank came forward to resolve the issue amicably with the main borrower.
6. The Learned counsel for the Petitioner brings it to the notice of this Court that the Second Respondent/Bank had agreed to accept the payment of Rs.45,00,000/- only as against the amount awarded in O.A.No.855 of 1999 dated 26.12.2003 and accordingly, the Bank issued a letter dated 29.11.2004, mentioning the terms of settlement. The Learned counsel for the Petitioner submits that in terms of settlement letter dated 24.11.2004, the main borrowers had to make a conditional payment of Rs.90,000/- only in token of acceptance of the aforesaid settlement terms and upon filing of memo of the settlement before the Debt Recovery Tribunal, Bangalore and after six months from thereon, the main borrowers had to make the balance payment of Rs.44,10,000/-. In fact, the main borrowers as per the terms of the settlement letter dated 24.11.2004 withdrew the M.A.No.35 of 2004 (filed by them seeking to set aside the ex-parte order dated 26.12.2003).
7. The core contention advanced on behalf of the Petitioner is that the Second Respondent/Bank without complying the condition of fili
