VEENA KHANNA Vs. CANARA BANK

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order dated 30.5.2001 (Annexure-2 to the writ petition) and appellate order dated 28.5.2002 (Annexure-3 to the writ petition) and the order of attachment of the house of the petitioner passed on 30.9.2002 (Anneuxre -6 to the writ petition) and notice of arrest dated 22.1.2003.

(2.) The facts arising out of the writ petition are that the husband of the petitioner No.1 took cash credit limit and loan from respondent No.1 i.e. Canara Bank. It appears that the loan was not paid and he became defaulter, as such, the Bank filed a mortgage suit against the firm and late Kaushal Chandra Khanna . The case was transferred to Debt Recovery Tribunal and ultimately decided by the Tribunal. During the pendency of the suit in the year 1989, Sri Kaushal Chandra Khanna husband of petitioner No.1 died and petitioners Nos. 1 and 2 have been substituted in his place. During his life time all the moveable assets were disposed of by late Kaushal Chandra Khanna. Only two plots in Kareli Colony remained under the mortgage of the Bank. The suit was decreed ex-parte on 31.5.2001. The petitioner applied for restoration of the case and by order dated 28.5.2002 the case was restored imposing a condition of depositing Rs.3 lacs for restoration of the suit. The petitioner filed an appeal against aforesaid order but the same has also been dismissed vide its order dated 19.8.2002. Then the Recovery Officer has issued a notice dated 9.9.2002 to the petitioners. Aggrieved by the aforesaid order, the petitioners have approached this Court.

(3.) It has been submitted on behalf of the petitioners that Section 22 of the Act provides that Civil Procedure Code will be applicable in the proceeding before the Debt Recovery Tribunal, therefore, under the law while allowing the application for restoration the Court cannot put a condition to deposit any part of the decretal amount. The appellate Tribunal has wrongly held that Tribunal has jurisdiction to pass such an order which is contrary to law. The amount which has been taken by the husband of the petitioner No.1 can be recovered only by sale of the mortgaged and hypothecated property with the Bank and no decree can be passed against the heirs. The Bank can only recover the amount due from the assets of the borrower, mortgaged with the Bank. Now the respondent No.2 has started recovery which is in the nature of execution proceedings. A notice dated 21.8.2002 has been sent in Form No.16 attaching the immoveable property mortgaged naming the two plots in the Kareli Colony in which the date of attachment is shown as 9.9.2002 and 12.9.2002 was fixed as the date for settling the terms of sale. The respondents have not taken any step for sale of these two plots but on 18.2.2002 issued another notice attaching Flat No.29, Block No.12, Alkapuri Colony, Hastings Road, Allahabad which is owned by the petitioner No.1 as she purchased it from the Allahabad Development Authority, Allahabad. Further a notice has been issued to recover the said amount by arrest and imprisonment of petitioner No.2 calling upon him to appear before him on 5.2.2002. Petitioner No.2 appeared before respondent No.2 and requested that the Tribunal cannot proceed against the house of his mother and cannot arrest him.