MUKESH GOLCHA Vs. KISHORE KUMAR SHARMA

JUDGEMENT

(1.) The three appeals arise from order dated 29.11.2012 allowing C W J C No.11553 of 2008 filed by respondents 1 to 4 (hereinafter referred to as =the respondent purchasers'). L P A No.185 of 2013 has been filed by the respondent "auction purchaser". L P A number 833 of 2013 has been filed by the respondent United Bank of India (hereinafter referred to as =U B I =). L P A No.942 of 2013 has been filed by the respondent Central Bank of India (hereinafter referred to as =C B I =).

(2.) The Learned Single Judge held that the builder M/s Uttam Ghar Developers Pvt. Ltd (hereinafter referred to as =the builder') or the respondent purchasers had no knowledge of the mortgage and were not made aware that the construction was being raised on lands mortgaged to the two Banks. The building plan had been duly sanctioned by the Patna Regional Development Authority. The constructions were raised and the respondent purchasers put in possession by the builder in 2001 2002 before the Banks filed O A applications under The Recovery of Debts Due to Banks and Financial Institutions Act,1993 (hereinafter called =the D R T Act' ) before the Debt Recovery Tribunal (hereinafter called =the D R T') in 2002 and 2004 respectively. The Banks took no steps to inform the builder about non-repayment of the loans and also did not take any steps to stop construction. The builder and the respondent purchasers were the real affected and contesting parties but were not impleaded and heard before the D R T. The value of the mortgaged properties had escalated since the time of mortgage. The debts of the two Banks could well be recovered from the nine flats in the owners/mortgagers share (hereinafter referred to as the =guarantor'). The final order dated 5.12.2002 granting certificate of recovery in the O A No. 27 of 2002 filed by U B I including the auction sale dated 2.7.2008 in Recovery Proceedings 169 of 2002 as also the final order dated 6.8.2009 in O A No.6 of 2004 filed by C B I issuing certificate for recovery were set aside. The D R T was directed to implead the builder and respondent purchasers as parties in both applications, issue notice to them and decide matters afresh confining the issue for recovery by the two Banks only to the nine flats and six parking spaces in the guarantor/ owners share.

(3.) Respondent Smt. Sheoraj Devi, the guarantor mortgaged her entire lands measuring 6 kathas 16 dhurs and 12 dhurkies situated at khata no.123, Tauzi no.5536, Thana no.19 in the prime area of Danapur in Patna town, to the C B I on 22.1.1998 and the U B I on 12.7.1999 respectively by deposit of two separate Title deeds for loan of 45 lacs and 150 lacs respectively taken by the proprietor of M/S Amrita Sales Enterprises from each of the Banks respectively. No repayment of the loan was made whatsoever. The guarantor soon thereafter on 20.4.2000 entered into a collusive agreement with the builder for construction of an apartment complex upon the mortgaged ands consisting of the owners share for nine flats with six parking space and builders share. This was done without the knowledge and permission of the two Banks obviously with the intention to avoid the mortgage and fraud the Banks. The development agreement stated that the property was not encumbered, charged or mortgaged, etc. The title deeds would remain with the builder. Notwithstanding a public notice by the U B I, a separate notice by the U B I to the builder, notice issued by the D R T as also the injunction ordered by it, constructions continued and flats sold to purchasers.