JANKI VASHDEO BHOJWANI Vs. INDUSIND BANK LTD

JUDGEMENT

(1.) This appeal is directed against the judgment of the Bombay High Court dated 23-4-2003. The appeal has been heard at length by a Bench in which one of us was a Member, Senna, J and by an order dated 10-2-2004 reported as Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, (2004) 3 SCC 584) it was remit- ted to the Tribunal with the following directions in paragraph 24 at page SCC 587: "in our view, it is essential, before any further orders can be passed to first decide whether or not the appellants have a share in this property. We therefore remit the matter back to the Debt Recovery Tribunal to record a finding whether or not on the date the decrees were passed, the appellants were co-owners of the property at 38, Koregaon Park, Pune, and if so, to what extent. In so deciding the Debt Recovery Tribunal will undoubtedly ascertain whether the appellants had any independent source of income and whether they had contributed for purchase of this property from their own independent income. The Debt Recovery Tribunal will also decide whether this property was the residence of the appellants at the time possession was taken. The Debt Recovery tribunal shall permit the parties to lead evidence, both oral and documentary. It must be clarified that the burden of proving that the appellants have a share in the property will be on the appellants. The Debt Recovery Tribunal shall then forward its decision to this Court within a period of six months from today. " (Emphasis supplied)

(2.) Avoiding prolixity, but at the risk of repetition the directions were founded on the following facts : the 1st appellant is the wife of the 5th respondent and the 2nd appellant is the wife of the 2nd respondent.

(3.) The respondent-bank extended loan facilities to the 6th and 7th respondents, M/s. Bhojwani Hotels Pvt. Ltd. and Hotel Amir Pvt. Ltd. , which are run by respondent Nos. 2 to 5 namely Dr. Laxmikant Rewachand Bhojwani, Mr. Sanjay Laxmikant Bhojwani, Mr. Romy Laxmikant Bhojwani and Mr. Vashdeo Rewchand Bhojwani. The loan facilities were to the extent of Rs. 22 crores in one case and Rs. 3.7.5 crores in the other. Respondents 2 to 5 were also guarantors and some of the properties belonging to the parties have been mortgaged to the bank. Initially, Plot No. 38, Koregoan Park, Pune was also stated to have been mortgaged to the bank. It is now admitted by the respondent-bank that the said plot was not mortgaged to the bank.