Anil Kumar Srivastava, Chairperson
THE APPELLATE TRIBUNAL :
Heard the Learned Counsel for the parties and perused the record.
Instant appeal is preferred against judgment and order dated 25.01.2019 passed by the Learned DRT-II, Kolkata in S.A. 617 of 2012 (Kusum Kumar Trust -vs- Central Bank of India).
As far as the facts are concerned, Appellant herein is a Trust wherein Smt. Anjali Das, who was Respondent No. 5 before the Learned DRT (since deceased) and represented through Respondents No. 5 to 11 in the appeal was the guarantor and mortgagor. One Shri Sanjay Das and Shri Kshitish Chandra Das were the Trustees of the Trust. A SARFAESI Application was filed by the Applicants against order dated 27.5.2012. It is further stated that the SARFAESI Applicants were neither borrowers nor mortgagors nor have mortgaged any property in favour of the Bank. It is specifically alleged that a fraud was committed by Shri Debasish Das, Respondent No. 4 before the Learned DRT, by forging the signatures of Smt. Anjali Das, Respondent No. 5.
Property in question was a Trust property. Trust was created by the father of the Applicant No. 2, late Narayan Chandra Das, on 13.11.1996 by executing a registered Trust Deed. Anjali Das had never mortgaged the property. In the sale notice it is stated that Respondent No. 4, Debasish Das, mortgaged Deed No. 438 of 1979 in favour of the Bank in connection with the loan sanctioned by the Bank in favour of Respondent No. 3, i.e. Jupiter Marking. The Deed was deposited with the Bank. It is alleged that the alleged mortgage by Anjali Das is illegal, void and fraudulent mortgage with forged signatures.
Pending SARFAESI Application a prayer for stay of the proceedings was made before the Learned DRT which was declined.
Feeling aggrieved, Appeal No. 113 of 2012 was filed before DRAT, Kolkata which was decided on 16.10.2012. Thereafter, SARFAESI Application was decided on 24.11.2015. In the meantime, report of the Central Forensic Laboratory, Kolkata dated 9.9.2015 was received wherein it was opined that the signatures of Anjali Das are forged. Accordingly, Learned DRT recorded its observation vide order dated 24.11.2015 to the effect that the signatures of Anjali Das, wife of Late Narayan Chandra Das, on the mortgaged deed are forged.
Sale Notice dated 27.5.2012 with Notice under Section 13 (2) of the SARFAESI Act dated 31.3.2010 and Possession Notice dated 11.1.2011 were challenged before the Learned DRT in S.A. 617 of 2012. Learned DRT categorically held that order dated 24.11.2015 was not challenged hence attained finality which means that the alleged mortgage by Anjail Das, wife of Late Narayan Chandra Das, is bad in law. However, Learned DRT gave an option to the Bank to decide the validity of creation of mortgage before taking any further steps in respect of the property in question. When the mortgage itself was bad in law then no question of giving option to the Bank to decide the validity of the mortgage arises. However, Learned Counsel for Respondent Bank submits that Bank has filed an O.A. against the Borrower as well as the Guarantor which is pending before the Learned DRT. As far as pendency of the O.A. is concerned, finding regarding signatures of Anjali Das appearing on the mortgage document has already attained finality which shows that the mortgage is bad in law. But this finding would not affect the merits of the O.A., as far as the Borrowers are concerned.
No other issue is raised or pressed in the appeal. Accordingly, appeal is liable to be allowed with the observations made in the body of the judgment.
ORDERED
Appeal is allowed to the extent that the finding of the Learned DRT regarding giving an option to the Bank to decide the validity of the mortgage by Anjali Das is set aside.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
File be consigned to Record room.
Order dictated, signed and pronounced in open Court.
