DHIRENDRA SWAIN Vs. B M , BANK OF BARODA

JUDGEMENT

(1.) THIS petition seeks quashing of proclamation of sale, Annexure -3, dated 23.12.2010 in execution of recovery certificate issued by the Debts Recovery Tribunal. Case of the petitioner is that opposite party No. 3 executed a sale deed dated 23.04.2008 as the attorney of the petitioner in favour of opposite party No. 4. Opposite party No. 4 took loan from the Bank. The sale was invalid as the petitioner had executed cancellation deed dated 6.2.2010. Thus the petitioner continues to be the owner of the property and proceedings initiated for sale of the property of the petitioner are not permissible. The proposed sale of property is on the strength of certificate of recovery issued against the opposite party Nos. 4 & 5, who defaulted in terms of loan agreement. Opp. Party Nos. 4 & 5 had no title of ownership of the property and for their default, property of the petitioner could not be sold.

(2.) COUNTER affidavit has been filed on behalf of the Bank stating that the attorney of the petitioner, opposite party No. 3 had availed eight loans from different Banks. Opposite party No. 4 had availed six loans from different banks and opposite party No. 5 had availed three loans from different banks. The bank issued possession notice against the borrowers. The petitioner was no longer the owner of the property which has already been sold by his attorney to opposite party No. 4 vide sale deed dated 23.04.2008. Deed of cancellation executed in the year 2010 had no legal force. The Debts Recovery Tribunal has passed the order of attachment of the property in appropriate proceedings which the petitioner has not challenged. In view of the law laid down by the Supreme Court in Union Bank of India v. Satyabati Tandon and others, 2010 8 SCC 110 this petition may not be entertained as alternative remedy is available to the petitioner to approach the Tribunal.

(3.) IT has been brought to our notice that the Central Bureau of Investigation (CBI) conducted investigation and filed charge -sheet against the opposite party Nos. 3 and 4 and some others, which facts have been noticed in the order passed today in W.P. (C) No. 9529 of 2008.