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PAREKH & CO.PRANAB KUMAR MULLICK

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CASE NO.:

Appeal (civil) 6790 of 2003

PETITIONER:

Mrs. Janki Vashdeo Bhojwani & Another

RESPONDENT:

The Indusind Bank Limited & Others

DATE OF JUDGMENT: 10/02/2004

BENCH:

S.N. Variava & H.K. Sema.

JUDGMENT:

J U D G M E N T

Variava, J.

This Appeal is against the judgment of the Debt Recovery

Appellate Tribunal dated 23rd April, 2003.

Briefly stated the facts are as follows:

The 1st Appellant is the wife of the 5th Respondent. The 2nd Appellant

is the wife of 2nd Respondent. The 1st Respondent Bank had given loan

facilities to the 6th and 7th Respondents which are concerns run by

Respondents 2 to 5. The loans were to the extent of approximately

Rs.22 crores in one case and Rs.3.75 crores in the other. Respondents

2 to 5 were also guarantors of the loan facilities. Some of the

properties belonging to these parties had been mortgaged to the Bank.

It is claimed that by an Indenture of Sale dated 5th September,

1991, the Appellants and Respondents 2 to 5 had purchased Plot No.

38, Koregaon Park, Pune - 411 00. It is claimed that on 12th

December, 1991, an Agreement of Co-ownership was executed

whereunder a HUF (of these parties) was also made a co-owner in

respect of the said plot of land. It is claimed that after purchase of the

plot of land, a building was got constructed on the plot of land and that

Appellants and Respondents 2 to 5 resided in that building.

On 3rd October, 2000 the 1st Respondent-Bank filed, against the

7th Respondent and the 2nd Respondent, OA No. 159-P/2001 before the

Debt Recovery Tribunal for recovery of a sum of approximately

Rs.3.86 crores. On 25th October, the 1st Respondent-Bank filed,

against the Respondents 2 to 6 and one M/s. Progressive Land

Development Corporation, OA No. 160-P/2001 for recovery of a sum of

approximately Rs.27.5 crores. It must be mentioned that M/s.

Progressive Land Development Corporation is a partnership firm of

which the Appellants are, along with others, partners.

On 11th December, 2000, the Debt Recovery Tribunal passed an

order of injunction in an application made in OA No.160-P/2001. One

of the properties of which the Respondents and the aforesaid

partnership firm were restrained from alienating was the 38, Koregaon

Park property.

On 13th September, 2001, in OA No. 159-P/2001, a decree was

passed in favour of the 1st Respondent-Bank by the Debt Recovery

Tribunal, Pune. In the decree the property at 38, Koregaon Park, Pune

was shown as one of the mortgaged properties.

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On the same day a Recovery Certificate was also issued by the

Debt Recovery Tribunal. In pursuance of that Recovery Certificate all

the mortgaged properties were attached on 8th November, 2001. The

property at 38, Koregaon Park, Pune was one of the properties which

was attached. Pursuant to the attachments, a public notice was

published in the Times of India of 25th January, 2002 intimating that

properties of the 2nd Respondent had been attached. The Appellants

claim that they came to know of this attachment only because of this

advertisement. This averment is impossible to believe. It is clear

that they were aware of the proceedings against their husbands and

family concerned.

The Appellants filed objections before the Recovery Officer

against the attachment of the residential property. On 16th April,

2002, the Recovery Officer rejected the objections of the Appellants on

the ground that he could not go beyond the decree.

On 17th April, 2002 the Debt Recovery Tribunal also passed a

decree and issued a Recovery Certificate in OA No. 160-P/2001.

On 30th April, 2002, the Appellants filed Appeal No. 2 of 2002

before the Presiding Officer, Debt Recovery Tribunal challenging the

attachment and proposed sale of property at 38, Kor