Kanwal Kapoor v. The Punjab & Sind Bank & ORS

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 1362/2016 KANWAL KAPOOR ..... Petitioner Represented by:

Mr.Rajeeve Mehra, Sr.Advocate instructed by Ms.Sangeeta Sondhi, Mr.Jai Prakash and Ms.Shruti Aggarwal, Advocates versus THE PUNJAB & SIND BANK & ORS ..... Respondents Represented by:

Mr.Khalid Abdullah, Advocate for R-1

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA

O R D E R

% 19.02.2016 CM No.5961/2016 Allowed subject to just exceptions.

1.

Having heard learned counsel for the parties we set aside the impugned order dated December 14, 2015 passed by the Debts Recovery Appellate Tribunal because learned counsel for the respondent does not dispute that the Code of Civil Procedure does not apply to proceedings before the Debts Recovery Tribunal concerning execution of decrees passed by DRT, and further, amendment introduced in the Code of Civil Procedure on July 01, 2002 is wholly irrelevant.

2.

We have to remand the matter to the Debts Recovery Appellate

Tribunal because the real issue has not even been captured, much less decided by the Debts Recovery Appellate Tribunal. 3.

As per the petitioner, Sh.Ram Narayan Gogia, holder of perpetual lease-hold rights in land bearing Municipal No.D-137, Anand Niketan entered into an agreement to sell the same to the petitioner on December 10, 1976 and received entire sale consideration for the land and put the petitioner in possession thereof.

Under a conversion policy the lessor directly executed a conveyance deed in favour of the petitioner on October 25, 1994. As per PNB, Sh.Ram Narayan Gogia had stood as a guarantor and had created an equitable mortgage of the property in its favour in 1978 i.e. two years after the agreement to sell.

4.

Whether the property could be attached and sold in execution of a decree against the borrower and the guarantor required a consideration, with reference to the interest of the petitioner, which he claims and for which Explanation II to Section 3 of the Transfer of Property Act, 1882 would have to be considered by the Debts Recovery Appellate Tribunal for the argument of the petitioner that when the mortgage was created the bank would be deemed to have notice of petitioner's possessory right in the property under an agreement to sell and possession protected under Section 53A of the Transfer of Property Act, 1882.

Petitioner's contention that notwithstanding an agreement to sell not being treated as an interest in a property as conventionally understood, would be sufficient interest for being protected, as the word interest is unconventionally understood and for which there are decisions, albeit dealing with objections under Order 21 Rule 64 of the Code of Civil Procedure, principle laid down wherein would apply to attachments by the Debts Recovery Tribunal.

5.

Setting aside the impugned order dated December 14, 2015, Appeal No.377/2015 filed by PNB is restored for fresh adjudication with a direction to the Debts Recovery Appellate Tribunal to be guided by the present order and re-decide the appeal keeping in view the correct principles of law applicable.

6.

No costs.

CM No.5960/2016 Dismissed as infructuous.

PRADEEP NANDRAJOG, J.

MUKTA GUPTA, J.

FEBRUARY 19, 2016 mamta