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CALCUTTA HIGH COURT
Soumen Sen, J.
Sajeda Khatoon —Petitioner
versus
Bank of India and Ors. —Opposite Parties
C.O. No., 4137 of 2011
Decided on 12.09.2012
For the Petitioner:Aniruddha Roy, Diptangshu Basu Roy, Jayabrata Basu Roy and Mrs. Chandreni Mukherjee, Advocates.
For the Opposite Parties:A.K. Routh, S. Pal Chowdhury and I. Bhattacharyya, Advocates.
Headnote:Recovery of Debts Due to Banks and Financial Institutions Act. 1993- Section 21 - Appeal without pre-deposit-Maintainability of by any person not being a borrower -Whether any person, not being a borrower can maintain an appeal without pre-deposit as contemplated under section 21 of Act. 1993-Held the purposive construction cannot be applied in view of clear language in section, 20 and 21 of the D.R.T. Act.-Apart from that, the right of appeal is a valuable right and it is the duty of the Court to preserve the right to prefer appeal- Each word in an enactment must play its own role- The right to prefer an appeal by a third party should be construed with respect to the context and other provisions of the Act- The right of appeal has been recognized by judicial decisions as right which vests in a suitor at the time of institution of the original proceeding- The right to prefer an appeal by a third party is also recognized under the Act- Such right to prefer an appeal by a third party is not conditional upon a redeposit as distinguished and opposed to an obligation created against the certificate debtor and imposing any such condition would result in curtailment of such right of a third party without an express provision contained in the statute- Such a provision in the statute must be express-Having regard to the clear provision in the statute. a third party who is neither a borrower nor a guarantor and under no contractual obligation to discharge the debt could not be required to make a pre-deposit under section 21 of the D.R.T. Act.- The order rejecting the application for releasing the property from attachment, per se do not and cannot make the petitioner “person liable to discharge the debt” -Revisional application allowed. (Paras 23 to 25)
Result: Revisional application allowed.
Soumen Sen, J.—Any person, not being a borrower. if could maintain an appeal without pre-deposit as contemplated under section 21 of Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter be referred to as D.RT. Act, 1993) is the issue to be decided in this application.
2. Before the Appellate Tribunal, the petitioner contended that having regard to the nature of the impugned order passed by the learned Presiding Officer, Debt Recovery Tribunal and the status of the petitioner, there may not be any liability and hence no requirement to make any pre-deposit under section 21 of the D.RT. Act. 1993.
3. The said appeal arose against an order dated 13th October, 2009 passed by the learned Debts Recovery Tribunal. Patna by which the Presiding Officer, D.RT., Patna directed the Recovery Officer to proceed with the auction sale of the property in question alongwith other attached properties. The said order was passed in connection with the Recovery Certificate issued in favour of the Bank on 3rd September, 2001. Under the certificate, the opposite party Nos. 2 to 7 were held to be liable jointly and severally for a sum of Rs 1,14,098.99/- upto 30th December, 1992 with cost and all other charges with interest, pendente lite and future interest till realization. On the basis of such certificate, the Recovery Officer registered a case being R.P. Case No. 128 of 2001. The Recovery Officer by an order dated 26th December, 2001 attached the immovable properties of the certificate debtors and further steps were taken for public auction of the attached properties. At the stage of sale of one of the properties, the petitioner claiming to be the wife of one of the guarantors, namely, Mr. Ziaul Hoda filed the application for vacating the order of attachment in respect of the said property. Mr. Ziaul Hoda is one of the guarantors and certificate debtors.
4. The petitioner objected to such attachment. She claimed to have purchased one of the attached properties, namely, lot No. 11 on the basis of an alleged deed of sale executed on 2nd March, 2000. The said property belonged to one of the borrowers/certificate debtors, namely, Ariful Hoda who transferred the said property in favour of the petitioner on 2nd March, 2000.
5. The petitioner contended that the said property admittedly belonged to Ariful Hoda who executed the sale-deed on 2nd March, 2000 in favour of the petitioner on payment of full consideration amount. The said property was neither mortgaged nor charged in favour of the bank.
6. Ariful Hoda is one of the borrowers and certificate debtors in the said proceeding. The said property was also attached by the Recovery Officer assuming that Ariful Hoda is the owner of the said property on the date of attachment. The petitioner contended that since the said property is neither mortgaged nor charged in favour of the bank and in any event was transferred on 2nd March, 2000 prior to the issuance of the certificate, no attachment order could be passed in respect of the said property.
7. The Presiding Officer while dealing with the deed of sale dated 2nd March, 2000 held that while the objector was relying on the sale deed dated 2nd March, 2000 and claimed that she had purchased the property, in that event, she should have intervened and objected when the attachment process was continuing. Although the said attachment and auction proceeding started in December, 2001, the petitioner raised the objection only in 2004 without any cogent reason. The petitioner being the wife of one of the guarantors was aware of the pending proceeding and this inter borrower transfer was orchestrated in order to frustrate the certificate. The Presiding Officer also observed that there were inherent infirmities in the deed of sale dated 2nd March, 2000 produced by the objector.
8. The Presiding Officer, accordingly, rejected the said application and directed the Recovery Officer to proceed with the sale of the said attached property a
