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Mohd. Roshan Ali v. Recovery Officer & Others - WRIT - C No. 4533 of 2003 [2005] RD-AH 2016 (22 August 2005)


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                                                                                                        Court No.38

Civil Misc. Writ Petition No.   4533 of 2003

Mohd. Roshan Ali               Vs.               Recovery Officer & others

Hon'ble Vineet Saran, J

Respondent no.3 M/s Star Carpets had taken a loan of Rs. 16 lacs from Union Bank of India, Respondent no.2, in the year 1991. Respondent nos. 4 to 8 were partners of the said firm and the petitioner Mohd. Roshan Ali was a guarantor for the said loan. He is said to have executed an equitable mortgage of the property described in the mortgage deed in favour of the Bank. On the borrower as well as the guarantor having failed to repay the loan amount within the stipulated period, the Respondent no.2 Union Bank of India filed suit no. 162 of 1993 Union Bank of India vs. M/s Star Carpets and others before Civil Judge (Senior Division), Mirzapur. Being the guarantor of the loan, the petitioner was also arrayed as a defendant in the said suit. Since the defendants did not appear before the trial court even after publication of the notices, vide order dated 6.7.1994 the trial court directed the suit to proceed exparte against the defendants. Thereafter on 31.7.1995 the suit was decreed in favour of the Bank for an amount of Rs. 17 lacs and odd along with interest. When the decree was put in execution and a sale proclamation was issued and the properties mortgaged with the Bank were to be auctioned, the petitioner filed this writ petition challenging the sale proclamation dated 2.12.2002 and also the auction dated 28.1.2003 in D.R.C. Case No. 574 of 2001 in so far as it related to the sale of the house of the petitioner shown through lot no.1.

I have heard Sri A.C.Tiwari, learned counsel appearing on behalf of the petitioner as well as Sri Sanjeev Singh, learned counsel appearing for the respondent-Bank and have perused the record. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the learned counsel for the parties this writ petition is being disposed of at the admission stage itself.

The contention of the petitioner is that he had never signed the mortgaged deed and the original document relating to his property had been fraudulently taken from him by the borrowers and filed with the Bank. It has further been submitted that the petitioner had no knowledge of the pendency of suit no. 162 of 1993 before Civil Judge (Senior Division), Mirzapur and after having come to know of the judgment dated 31.7.1995 the petitioner filed restoration application on 23.12.2002. The petitioner thus contends that without disposing of the restoration application the sale proclamation could not have been issued and the property could not be auctioned. It has further been contended that the decree passed by the Civil Judge was without jurisdiction as the same was passed after coming into force of The Recovery of Debts due to Banks and Financial Institutions Act, 1993. As such, the learned counsel for the petitioner contends, the sale proclamation dated 2.12.2002 as well as the auction of the property of the petitioner in pursuance thereof may be quashed.

Sri Sanjeev Singh, learned counsel appearing on behalf of the contesting respondent-Bank, has however, submitted that the petitioner as well as the borrowers are relatives and the story of the petitioner that the original papers relating to his property had been fraudulently procured by the respondent-borrower and filed with the Bank is not believable inasmuch as the petitioner had himself signed the mortgage deed and guarantee papers. It has been submitted that the petitioner (guarantor) and the borrower being close relatives are hand in gloves with each other and are managing to stall the recovery proceedings for the last more than a decade. The further contention is that the Civil Judge had jurisdiction to decide the suit till the Debts Recovery Tribunal for the area in question had been established, which had been done so only on 7.4.1998 and as such the decree passed by the Civil court on 31.7.1995 cannot be said to be without jurisdiction.

Having heard learned counsel for the parties and considering the facts and circumstances of this case, in my view the petitioner is not entitled to any relief. The petitioner, who is the guarantor of the loan, is well connected with the respondent-borrowers. It is highly improbable that the original deed of the property of the petitioner had been taken away fraudulently by the respondent-borrower and mortgaged with the Bank without the knowledge of the petitioner and the petitioner kept quiet since 1991 even when his original deed was taken away. Further the contention of the petitioner that the civil Court did not have jurisdiction, does not have force because the Debts Recovery Tribunal for the area in question had been established only in the year 1998 which was nearly three years after the suit was decreed by the Civil Court. The restoration application was also filed by the petitioner as late as on 23.12.2002 which was after the sale proclamation had been issued by the competent authority. The papers relating to the guarantee given by the petitioner and the equitable mortgage executed by the petitioner have been annexed with the counter affidavit filed by the respondent-Bank. Once the original papers had been filed with the respondent-Bank and guarantee has been executed by the petitioner in favour of the borrower who was closely related to the petitioner, this Court would not be inclined to exercise its extraordinary equity jurisdiction in favour of such a person, who in collusion with the borrower, has already stalled the recovery proceedings for more than a decade.

Accordingly, for the foregoing reasons I do not find any merit in this writ petition which is, accordingly, dismissed, however, without any order as to cost.

Dt/- 22.8.2005



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