(1) The Appellant has taken exception to the order dated 23rd February 2018 and 5th December 2018 (for short ""the impugned orders"") passed by the
Ld. Recovery Officer in I.A (Exh.41).
(2) The Appellant has presented the appeal under sub-section (1) of Section 30 of Recovery of Debts Due to Banks and Financial Institutions Act,
1993 (for short ""the 1993 Act"").
(3) The Appellant is a 3rd party unconnected with the loan transaction between the Respondent Nos.1 to 4. The Respondent no.2 is the principal
borrower, Respondent nos.3 & 4 are the mortgagors. Respondent No.1 is the certificate holder.
(4) The Appellant challenged the impugned orders passed by the Learned Recovery Officer by appointing the Receiver and forcibly dispossessing the
Appellant. The Appellant is 2nd wife of Respondent No.3 and Respondent No.4 is the step daughter of the Appellant.
(5) The Appellant married with Respondent no.3 on 17th December 2011 before the Registrar of Marriage, Bandra, Mumbai. Since marriage, the
Appellant is residing at Flat No.104, First floor, Tulip Building, Mantri Park, Dindoshi, Film City Road, Goregaon (East), Mumbai 400 065 (for short
the said flat""). It is the matrimonial home of the Appellant.
(6) The dispute arose between the Appellant and Respondent No.3 within 2/3 months of the marriage. The Appellant and Respondent no.3 resided
together as husband & wife in the said flat. The Appellant continued to live in the said flat preceding the date of dispossession.
(7) The Appellant has made the averment about her dispute with the Respondent Nos.3 & 4. The Dindoshi Police Station reported domestic violence
against the Respondent Nos.3 and 4 under N.C. No.563/12 dated 17th February 2012 and N.C. No.1131/2012 dated 7th March 2012.
(8) The Respondent no.3 attempted to dispossess the Appellant from the marital home that is the said flat. The Appellant, therefore, lodged police
complaint as C.R No 198/2012 dated 31st May 2012 under Section 498-A read with Section 34 of Indian Penal Code.
(9) The Respondent Nos.3 & 4 used force to evict her from the said flat. Therefore, the Appellant filed Application under Sections 12, 17 to 20 & 22
of Protection of Women from Domestic Violence Act, 2005 (for short ""the 2005 Act""). The proceeding under ""the 2005 Act"" is pending before the
Learned CMM Court at Borivali. The Respondent Nos.3 & 4 entered an appearance in response to the summons. Since the Respondent Nos.3 & 4
could not evict the Appellant from the said flat, they took a loan from Respondent No.1.
(10) It appears that the Respondent Nos.2 to 4 did not adhere to the terms of sanction & contract; which resulted in the classification of the account
as ""Non Performing Assets"" (NPA). The Respondent No.1 initiated action under the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short ""the 2002 Act"") and Security Interest (Enforcement) Rules 2002 (for short ""the said Rules"").
(11) The Respondent No.1 applied under Section 14 of the 2002 Act seeking the aid of the Learned CMM Court to take physical possession of the
said flat (for short ""The secured assets""). On 4th September 2012, the Learned CMM Court passed an order under Section 14.
(12) The Respondent No.1 also filed Original Application No.104/2014 under Section 19 of the 1993 Act for recovery of its dues & enforcement of
the security.
(13) On 18th February 2015, my predecessor pronounced the judgment and issued Recovery Certificate on 12th August 2015. Accordingly, the
execution proceeding commenced upon issuance of Recovery Certificate under Recovery Proceeding No.205/2015.
(14) On 2nd November 2015, the Learned Recovery Officer issued demand notice to Respondent nos.2 to 4. On 24th October 2016, the Learned
Recovery Officer passed an order to attach the movable and immovable properties. On 30th November 2016, the Learned Recovery Officer ordered
the publication of the warrant of attachment. The attachment warrant dated 30th November 2016 got modified by a corrigendum dated 8th February
2017. On 29th April 2017, Recovery Inspector filed his report according to the direction dated 23rd March 2017. By the said report, the Recovery
Inspector placed on record the compliance of the order jointly by the Respondent no.1 as well as the Government approved valuer for executing the
warrant of attachment, possession and valuation.
(15) On 8th January 2018, the Learned Recovery Officer directed the Bank Officer to identify the mortgaged property to enable the approved valuer
to accomplish the assignment of valuation. The Learned Recovery Officer also referred to the occupants/owner to co-operate with the valuer, and
Bank Officer in the valuation of the said flat. The Learned Recovery Officer granted liberty to the Respondent No.1 to take police assistance for
valuation in case of non co-operation.
(16) On 23rd February 2018, the Respondent No.1 filed an affidavit stating that the occupant has objected for valuation. The Learned Recovery
Officer gave last chance to the occupant to co-operate with the valuer. Once again, availing the police assistance was permitted.
(17) On 16th January 2018, Respondent No.1 filed I.A. (Exh 22), an affidavit in support (Exh.23) for taking physical possession of the said flat by
breaking open the locks. The Learned Recovery Officer directed the occupant to co-operate with the valuer appointed on 8th January 2018. By
Interlocutory Application (Exhibit22), Respondent no.1 placed on record that the Appellant has failed to co-operate and is using abusive language. The
order further reveals that the Appellant took law in her hands by breaking open the locks. The Assistant Registrar took the possession under Section
14 of the 2002 Act. For the first time, the Learned Recovery Officer directed the Receiver to take taking physical possession. Therefore, the Learned
Recovery Officer felt that he has no option but to take physical possession. Accordingly, Interlocutory Application (Exhibit 22) was allowed. M/s.
Thakkar Auctioneers, an empanelled Receiver, was directed to take physical possession of the said flat by breaking open the locks. The Learned
Recovery Officer directed SHO to provide adequate police assistance to the Receiver.
(18) Being aggrieved by the action of dispossession, the Appellant preferred Appeal No.12/2018 on 21st September 2018. The appeal stood dismissed
as ""not maintainable"". However, liberty was granted to the Appellant to approach the Learned Recovery Officer to redress her grievance. The order
further indicates that the Learned Recovery Officer after hearing the parties shall pass appropriate order by following due procedure of law.
(19) The Appellant filed Interlocutory Application (Exhibit 41) according to the liberty granted to her vide order dated 21st September 2018. On 5th
December 2018, the Learned Recovery Officer passed an order in Interlocutory Application (Exhibit 41) which is under challenge.
(20) The appeal is opposed by Respondent No.1 who has filed Affidavit (Exhibit 11, 18 & 22). It is the case of Respondent No.1 that the Appellant
has no locus-standi to challenge the impugned order. The Appellant is not the borrower, guarantor or the mortgagor. The Appellant is allegedly
claiming right in the said flat. Respondent Nos.3 & 4 are joint owners of the said flat. Respondent No.1 filed Original Application No.104/2014
claiming the amount in the sum of Rs.28,24,171/-. The prayer in the Original Application in the sum of Rs.21,21,103/- was allowed.
(21) The Appellant has challenged the impugned order under Section 30(1) of the 1993 Act. The challenge to the order dated 23rd February 2018 is
beyond a period of 30 days. The Respondent No.1 is not aware of the marriage between the Appellant and Respondent No.3. The Respondent No.1
denies that the said flat is matrimonial home of the Appellant. Respondent No.1 is denying that the Appellant is the 2nd wife of the Respondent No.3
and the Respondent No.4 is the step daughter.
(22) The Respondent No.1 is not aware of the criminal complaint filed by the Appellant against the Respondent No.3. The Appellant has admitted
credit facility availed by Respondent Nos.2 to 4 so also the creation of the mortgage to secure the credit facility. In the Recovery Proceeding, the
Respondent No.1 has served demand notice upon Respondent Nos.2 to 4 as per rules.
(23) The Appellant is not entitled to claim any right, title and interest in the said flat on the ground of marital home. The Court Receiver took physical
possession of the said flat as per the order passed by the Learned Recovery Officer. The Appellant made false allegations against Officer of
Respondent No.1 as well as the advocate.
(24) The Learned Recovery Officer passed an order on 5th December 2018 after hearing the advocate for the Appellant and Respondent No.1 as per
Rule 11 to 2nd Schedule of the Income Tax Act. By the said order, Interlocutory Application (Exhibit 41) got rejected. The Appellant is not entitled to
any reliefs in terms of prayer clause 6 & 7.
(25) The Respondent No.1 filed Affidavit (Exhibit 18) placing the facts about Flat No.601, Doctor House, Peddar Road, Mumbai 400 026 and Flat
No.1, Mann Niketan Building, Malad West, Mumbai-400 064. Respondent No.1 placed on record that it has no documentary evidence. Since
Respondent No.1 did not have any proof of ownership of the properties described in para nos.1 to 3, the Respondent No.1 did not apply for
attachment.
(26) The Respondent No.2 has filed Affidavit (Exhibit 22) stating that the presentation of the interlocutory application was after 730 days from the
date of taking possession. On 23rd April 2018 DRT Receiver did not take forceful and illegal control of the mortgaged property. The Appellant also
filed an application challenging order dated 16th March 2018 in Appeal No.12/2018. The appeal stood dismissed on 21st September 2018. There was
no violation of any Rules when the Registrar took physical possession on 19th January 2013 according to the order passed of the Learned CMM
Court. The Appellant broke open the lock illegally and occupied the said flat. On 17th January 2020, Respondent No.1 has put up the said flat on
auction which failed. After that, due to COVID-19 pandemic, Respondent No.1 has not put up the said flat for sale.
(27) The Appellant has filed written submissions (Exhibit 13). Mr. Pandit submitted that the Appellant was thrown out from the said flat
on 23rd April 2018 by the DRT Receiver by order dated 23rd February 2018. Neither the Appellant received the application, nor she got the audience
of hearing. The order dated 23rd February 2018 is ex-parte to dispossess the Appellant by taking the assistance of police physically. It is a blatant
violation of the Principle of Natural Justice. The Appellant, therefore, was compelled to file an interlocutory application to reconsider the passing of the
ex-parte order. The Appellant is the legally wedded wife of the Respondent No.3. Section 12 to 19 of the 2005 Act, grants protection. The Appellant
is the aggrieved person and has the locus-standi to file the appeal under Section 30, which provides as under :
1. Notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made under this Act may,
within thirty days from the date on which a copy of the order is issued to him, prefer an Appeal to the Tribunal.
Section 30 provides that any person aggrieved by order of the Learned Recovery Officer under this Act may prefer an appeal. Once the Learned
Recovery Officer entertained the application under Rule 11 of the 2nd Schedule to the I.T Act, the impugned orders are appealable under Section 30.
(28) The Learned Recovery Officer passed the impugned orders in Interlocutory Application (Exhibit 41). The Appellant is an aggrieved person.
Therefore, this Tribunal has exclusive jurisdiction under Section 30 to entertain and try the present appeal.
(29) On 5th December 2018, the Learned Recovery Officer rejected Interlocutory Application (Exhibit 41). By Interlocutory Application (Exhibit 41),
the Appellant challenged the act of forcible dispossession by DRT Receiver. The Appellant applied for a certified copy of the order on 14th
December 2018, which the Appellant received on the same day. The Appellant presented the appeal on 24th December 2018. Therefore, the
challenge to the impugned orders under Section 30 is well within 30 days. The Appellant preferred Appeal No.12/2018 immediately upon her
dispossession. The Tribunal by order dated 21st September 2018 passed order that the Appellant ought to have challenged the order dated 23rd
February 2018 instead of approaching the Tribunal in Appeal. Upon advice, the Appellant preferred Interlocutory Application (Exhibit 41) to set aside
the order dated 23rd February 2018 and restore the possession of the said flat. The Appellant filed Interlocutory Application (Exhibit 41) in October
2018. Respondent No.1 filed a reply to the Interlocutory Application Respondent Nos.2 to 4 neither filed response nor made any representation.
(30) On the merits of the case, Mr.Pandit submitted that the Appellant married Respondent No.3 on 17th December 2011. Since then, the Appellant
resided in the said flat until the DRT Receiver dispossessed her. After the marriage, Respondent No.3 did not treat the Appellant properly.
(31) The Appellant is not required to be the owner on her own to use, occupy and possess the said flat. The Learned Recovery Officer completely
ignored these rights of the Appellants. The harassed Appellant, therefore, made a complaint to the Dindoshi Police Station vide N.C.No.563/2012
dated 17th February 2012 and N.C. No.1131/2012 dated 7th March 2012. Respondent No.3 also stopped to maintain the Appellant. The Appellant had
even left her job as per the understanding arrived between her & Respondent No.3. The Appellant has also filed a complaint as C.R.No.198/2012
dated 31st May 2012. The Appellant also filed applications under Section 12, 17 to 20 & 22 of ""the 2005 Act"". The Criminal Proceeding is pending
before Learned Addl. CMM Court at Borivali. Respondent Nos.3 & 4 appeared in Proceedings before Learned Addl. CMM Court at Borivali.
(32) Respondent Nos.3 & 4 being father and daughter acted in consult against the Appellant. The modus operandi of Respondent Nos.3 & 4 to evict
the Appellant worked by obtaining and defaulting the loan. Since Respondent Nos.3 & 4 could not expel the Appellant under the 2005 Act, they
resorted back door method. Respondent No.1 filed Appeal under Section 14 of the 2002 Act, which was allowed on 4th September 2012. Respondent
No.1 filed Original Application which was allowed, and Recovery Certificate issued for Rs.21,21,103/- with interest. Respondent Nos.3 & 4 purposely
did not appear in Original Application proceeding, which resulted in an ex-parte decree.
(33) On 13th April 2016, the Respondent No.1 tendered affidavit proving service of demand notice. On 16th March 2018, the Learned Recovery
Officer ordered to take physical possession of the said flat by breaking open the locks. On 23rd April 2018, the event of dispossession of the Appellant
happened without any notice/summons.
(34) Respondent No.1 filed a false criminal complaint against the Appellant at Dindoshi Police Station being CC No.178 of 2012 under Section
341,452,457 of IPC.
(35) Respondent No.3 is absconding and not appearing in any Court.
(36) Mr.Pandit further submitted that no service was affected by the DRT Receiver. However, the Bank Officer of Respondent No.1 visited the said
flat on 23rd April 2018 with the Court Receiver and Police Officers. They did not listen to any valid and legal contention of the Appellant. Despite
pointing out the protection granted under the 2005 Act, she was dispossessed. The Officer of Respondent No.1 refused to allow the Appellant to take
her essentials for the day-to-day use which are lying in the said flat. The event of dispossession occurred without following due process of law.
(37) Mr.Pandit further submitted that the Learned Recovery Officer failed to appreciate that the application filed by Respondent No.1 was for
valuation and not for possession. The Learned Recovery Officer was unable to take verify the fact that the Appellant was in actual physical control.
The Learned Recovery Officer, therefore, erred in not hearing the Appellant before taking the harsh step of passing the order of dispossession from
her matrimonial home. Respondent No.1 did not make the Appellant a party to the application for valuation and dispossession. Respondent No.1 failed
to serve the application upon the Appellant. The Ld. Recovery Officer erred in not investigating the claim or objection to attachment and sale of the
said flat as per provision of Rules laid down in the 2nd Schedule of the I.T.Act
(38) In support of the Appellant case, Mr.Pandit relied upon the following judgment in the case of Mrs.Sarika W/o Hemendra Sureka Vs Mr.Hemndra
S/o Raj Kumar Sureka reported in AIR BOM R 2016 (6) 161. The reliance upon paragraph nos.25,43, 48,49,55,63 is extracted below:
25. Here in the case, admittedly Appellant is continuously in possession of the suit premises since the time of her marriage in the year 1991,
which possession is protected by the order of Family Court also. The impugned order of interim mandatory injunction is disturbing the said
possession, as it has effect of ousting her from the suit premises and therefore, impugned order is not in the nature of preserving or
restoring status quo ante or to compel undoing of any act, done illegally, but it has the opposite effect of disturbing the settled possession of
Appellant in her matrimonial home, which possession was protected by the judicial order of the Family Court. Therefore, the impugned
order, as passed by the trial Court is not satisfying the first condition laid down in the above said decision of Dorab Cawasji Warden
(supra). Conversely it is against the express terms of legal position laid down therein.
43. In order to achieve these objects and the reasons, the Act provides for the comprehensive definitions of the ""Domestic Violence"",
shared household"", ""Respondent"" and ""the aggrieved person"" etc. in Section 2 of the Act. The definitions, which are relevant for the
purpose of deciding this appeal can be reproduced as under:
2(a) ""aggrieved person"" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have
been subjected to any act of domestic violence by the respondent; ""2(f) ""domestic relationship"" means a relationship between two persons
who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are family members living together as a joint family"".
2(q) ""respondent"" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against
whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of
the husband or the male partner"".
2(s) ""shared household"" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either
singly or alongwith the respondent and includes such a household, whether owned or tenanted, either jointly by the aggrieved person and
the respondent, or owned or tenanted by either of them in respect of of which either the aggrieved person or the respondent or both jointly
or singly have any right, title, interest, or equity and includes such a household which may belong to the joint family of which the
respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared
household"".
48 Thus the perusal of the Objects and Reasons of the Act and its various provisions makes it clear that the Legislature has taken the
cognizance of the fact that women suffer immense hardship when they are driven out of their marital home. In most cases they suffer pain
and humiliation mutely for the fear of being rendered homeless. Thus, her crucial entitlement to remain in the house and not to be
dispossessed from her marital home was sought to be recognized and given legal statutory right by making definitions of ""shared
household"" and ""domestic relationship"" quite comprehensive. The Act has, thus, given statutory recognition to the salutary protection
granted to aggrieved woman by the Judge made laws, like decision of the Apex Court, in case of B.P. Achala Anand - vs- S. Appi Reddy and
anr wherein Supreme Court recognized the right of wife to reside in her matrimonial home and laid a principle hitherto unknown in law that
deserted wife would be entitled to remain in possession of the matrimonial home and to contest suit for eviction against her husband.
In the said decision, cognizance was taken of the Matrimonial Homes Act, 1967 enacted in England to secure the rights of married woman.
Even the deserted wife's equity to reside in the matrimonial home and not to be dispossessed automatically from the same which was laid
down by Lord Denning was also recognized. Thus, D.V. Act is enacted with a very laudable object of providing full protection to a deserted
married woman in respect of her residence in the matrimonial home and not to be dispossessed or driven out therefrom.
49 It also need not be stated that Domestic Violence Act is Secular Legislation, akin to Section 125 of the Code of Criminal Procedure. It
was enacted to provide more effective protection to the rights of women, irrespective of their religion, caste or creed which rights are
guaranteed under the Constitution and to those women who are victims of violence of any kind occurring within the family. The introduction
of remedy of right to residence in matrimonial home, protection against eviction therefrom, granted by this Act, is to say the least,
revolutionary and path breaking step taken to further Objects of the Act. Hence as observed by Delhi High Court, in case of Preeti Satija
(supra), ""Any attempt at restricting of the scope of remedy would reduce the effectiveness of the Act itself. Therefore, it would be contrary to
the scheme and objects of the Act to restrict its application to only such cases, where the husband owns some property or has a share in it"".
55 In this authority, Delhi High Court also distinguished not only it's own decision in case of Shumita Didi Sandhu (supra), but also
decision of the Supreme Court in case of Vimlaben Ajitbhai Patel (supra) and having regard to the intention of the Legislature, observed as
follows :
20. Crucially, Parliament's intention by the 2005 Act was to secure the rights of aggrieved persons in the shared household, which could
be tenanted by the Respondent (including relative of the husband) or in respect of which the Respondent had jointly or singly any right,
title, interest, or ""equity"". For instance, a widow (or as in this case, a daughter in law, estranged from her husband) living with a mother-in-
law, in premises owned by the latter, falls within a ""domestic relationship"". The obligation not to disturb the right to residence in the shared
household would continue even if the mother-in-law does not have any right, title or interest, but is a tenant, or entitled to ""equity"" (such as
an equitable right to possession) in those premises. This is because the premises would be a ""shared household"". The daughter-in-law, in
these circumstances is entitled to protection from dispossession, though her husband never had any ownership rights in the premises. The
right is not dependent on title, but the mere factum of residence. Thus, even if the mother-in-law is a tenant, then, on that ground, or
someone having equity, she can be injuncted from dispossessing the daughter in law. In case the mother in law is the owner, the obligation
to allow the daughter in law to live in the shared household, as long as the matrimonial relationship between her and the husband subsists,
continues. The only exception is the proviso to 19(1)(b), which exempts women from being directed to remove themselves from the shared
household. No such exception has been carved out for the other reliefs under Section 19, especially in respect of protection orders. Had the
Parliament intended to create another exception in favor of women, it would have done so. This omission was deliberate and in consonance
with the rest of the scheme of the Act. There can be other cases of domestic relationships such as an orphaned sister, or widowed mother,
living in her brother's or son's house. Both are covered by the definition of domestic relationship, as the brother is clearly a Respondent. In
such a case too, if the widowed mother or sister is threatened with dispossession, they can secure reliefs under the Act, notwithstanding
exclusive ownership of the property by the son or brother. Thus, excluding the right of residence against properties where the husband has
no right, share, interest or title, would severely curtail the extent of the usefulness of the right to residence.
21. The other aspect, which this Court wishes to highlight, is that the 2005 Act applies to all communities, and was enacted ""to provide more
effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the
family"". The right to residence and creation of mechanism to enforce is a ground breaking measure, which Courts should be alive to.
Restricting the scope of the remedies, including in respect of the right to reside in shared household, would undermine the purpose of this
enactment. It is, therefore, contrary to the scheme and the objects of the Act, as also the unambiguous text of Section 2(s), to restrict the
application of the 2005 Act to only such cases where the husband alone owns some property or has a share in it. Crucially, the mother-in-
law (or a father-in-law, or for that matter, ""a relative of the husband"") can also be a Respondent in the proceedings under the 2005 Act and
remedies available under the same Act would necessarily need to be enforced against them (emphasis supplied)
63 As against it, in the present case, it is undisputed position that since the date of her marriage in the year 1991, Appellant has resided
jointly with respondents in the shared household for this continuous period of more than 25 years. It is also not the case that in the said
house, she was residing separately, as in the case of S.R.Batra (supra), where Taruna was residing with her husband on second floor of the
house; whereas in-laws were residing on the ground floor.
In the present case as the Appellant, as on today also, is residing jointly alongwith respondent No.1 in the said house, using common
kitchen and enjoying common facilities. Hence unlike in the case of S.R.Batra (supra) the suit flat is ""shared household"" of Appellant within
the definition of Section 2(s) of the Act. Therefore, she becomes entitled for protection of her residence in the shared household. To
dispossess her therefrom would be against the very scheme, object and purport of the D. V. Act. It would be as good as playing in the hands
of her husband, who has put forth his mother to evict Appellant when his own efforts to do so failed.
Mr.Pandit also relied upon the judgment in the case of Ispalsingh Kahai Vs Ramanjeet Kahai reported in AIR BOM R 2011 (3) 156. The reliance
upon paragraph nos.9,24,25,29,30,35 are extracted below:
9. It is in this situation that the statutory rights of protection of a wife in her matrimonial home under the DV Act are required to be
considered.
24. Under Section 2(s) of the DV Act, shared household is a household where the person aggrieved lives or at any stage has lived in a
domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by
the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the
respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint
family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in
the shared household.
25. Her right to reside in the shared household is under Section 17(1) of the DV Act which runs thus:
17. Right to reside in a shared household.(1) Notwithstanding anything contained in any other law for the time being in force, every woman
in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest
in the same.
The statute therefore, expressly excludes the consideration of ownership rights as a condition for determining whether or not a particular
property is a shared household.
29. It can, therefore, be seen that there is no place for proprietary rights under the DV Act. The Act is an extension of the deeper and
profounder principle of Women s Rights as a part of Human Rights. The matrimonial home or the shared household of a person does not
require it to be owned or co-owned by the person who has been violated. It could be any household 18 WP-576 whether owned or tenanted,
either jointly or by either of them as specifically set out in Section 2(s) above. It is the household in which the victim and the violator may be
having rights, singly or jointly. Consequently, they may or may not have title to the property and hence the victim can apply for a residence
order to the Court in respect of a shared household, which includes their matrimonial home, whether or not she has any right, title or
beneficial interest therein. The very consideration of ownership rights would put materialism before matrimony.
30. In fact, the lesser the entitlement to property rights, the more is the entitlement to protection of human rights against violence. It may not
be out of place to rethink the depth of the words of none other than Mahatma Gandhi reaching out to the most vulnerable of humankind in
generic terms:
I hold that the more helpless a creature, the more entitled it is to protection by men, from the cruelty of men.
35 Hence notwithstanding the law relating to ownership of immovable property any victim of domestic violence in a domestic relationship
would require to be granted the protective right of residence in the shared household, including the protection against dispossession there
from whether or not she has any legal or equitable interest therein. This right to reside contains within itself not only an injunction for
protection against her dispossession, but statutorily follows as a matter of corollary, the order of injunction of the Court for removal of the
violator from such household and thereafter restraining him from entering thereupon. The order of removal of the violator and an order of
injunction restraining him from entering upon the shared household is, therefore, conditioned upon his abusive behavior violating the
person of his wife or any other woman in domestic relationship and not upon his proprietary rights therein. Consequently, the right to
reside without having any title to the property contains within itself the right to reside peaceably and to the exclusion of the violator.
Further since the Act puts the woman s personal rights above proprietary interest, even if the Respondent who is the violator has title to the
property, he would be restrained by a Court from exercising unrestrained domain over his ownership property by an order of injunction
restraining him from alienating or disposing of or encumbering the shared household or the matrimonial home in which the victim has been
granted the right of peaceful residence for her protection. This further brings within its sway, the servants, agents, assigns, who may be the
relatives of the violator since what cannot be done directly also cannot be allowed to be done indirectly. This, of course, would be until and
subject to the violator securing the same level of alternate accommodation for the victim as was enjoyed by her in the shared household and
upon he paying for the same. Consequently, reading sub-sections (a), (b), (c), (d) and (f) of Section 19(1) together, a holistic view of the
protection of the victim is granted under the beneficial social legislation which seeks to remedy the malaise of domestic violence in a
domestic relationship.
Mr.Pandit also relied upon the judgment in the case of Bhoruka Steel Ltd Vs Fairgrowth Financial Services Ltd reported in BC 1997 (2) 636. The
reliance upon paragraph no.12 is extracted below:
12 In support of his submission, Mr. Hegde relies upon the judgment in the case of Sarwan Singh v. Kasturi Lal, wherein the Supreme Court
has held as follows (page 274) :
Speaking generally, the object and purpose of a legislation assume greater relevance if the language of the law is obscure and
ambiguous. But, it must be stated that we have referred to the object of the provisions newly introduced into the Delhi Rent Act in 1975 not
for seeking light from it for resolving an ambiguity, for there is none, but for a different purpose altogether. When two or more laws operate
in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and
incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be
decided in reference to the object and purpose of the laws under consideration. A piquant situation, like the one before us, arose in Shri
Ram Narain v. Simpla Banking and Industrial Co. Ltd [1956] 26 Comp Cas 280; the competing statutes being the Banking Companies Act,
1949, as amended by Act 52 of 1953, and the Displaced Persons (Debts Adjustment) Act, 1951. Section 45-A of the Banking Companies Act,
which was introduced by the Amending Act of 1953, and section 3 of the Displaced Persons Act, 1951, contained such a non-obstante
clause, providing that certain provisions would have effect 'notwithstanding anything inconsistent therewith contained in any other law for
the time being in force...' This Court resolved the conflict by considering the object and purpose of the two laws and giving precedence to
the Banking Companies Act by observing : 'It is, therefore, desirable to determine the overriding effect of one or the other of the relevant
provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the
clear intendment conveyed by the language of the relevant provisions therein' (page 615). As indicated by us, the special and specific
purpose which motivated the enactment of section 14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the provisions of
the Slum Clearance Act requiring permission of the competent authority were to prevail over them. Therefore, the newly introduced
provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance
Act. For resolving such inter se conflict, one other test may also be applied though the persuasive force of such a test is but one of the
factors which combine to give a fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier
one. Section 14-A and Chapter III-A having been enacted with effect from 1st December, 1975, are later enactments in reference to section
19 of the Slum Clearance Act which, in its present form, was placed on the statute book with effect from 28th February, 1965, and in
reference to section 39 of the same Act, which came into force in 1956, when the Act itself was passed. The Legislature gave overriding
effect to section 14-A and Chapter III-A with the knowledge that sections 19 and 39 of the Slum Clearance Act contained non- obstante
clauses of equal efficacy. Therefore, the later enactment must prevail over the former. The same test was mentioned with approval by this
Court in Shri Ram Narain's case, [1956] 26 Comp Cas 280; AIR 1956 SC 614, 615].
Mr.Pandit then relied upon the judgment in the case of IMP Powers Ltd V/s State reported in BC 2008 (4) 183. The reliance upon paragraph no.7 is
extracted below:
7. The Supreme Court upheld the view taken by the several High Courts that the Companies Act, 1956, must be treated as a general statute
and the RDB Act as a special statute has overriding effect over the general statute. The Supreme Court held that alternatively even if both
the statutes were regarded as special enactments the later enactment will prevail over the earlier.
Mr.Pandit then relied upon the judgment in the case of B.P.Achala Anand Vs S. Appi Reddy and Anr. reported in 2005 (2) GLH 456. The reliance
upon paragraph nos.12,13,25,30,31 are extracted below.
12. Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws. In the factual
context of the present case, we are confining ourselves to dealing with the personal law as applicable to Hindus as the parties are so. A
Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to
separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just
cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to
maintenance cannot be defeated by the husband executing a will to defeat such a right. (See: MULLA, Principles of Hindu Law, Vol. I, 18th
Ed. 2001, paras 554 and 555). The right has come to be statutorily recognized with the enactment of the Hindu Adoption and Maintenance
Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in clause (b) of Section 3 of the Hindu
Adoption and Maintenance Act, 1956 as to include therein provision for residence amongst other things. For the purpose of maintenance
the term 'wife' includes a divorced wife.
13. The position of law which emerges on a conjoint reading of the Rent Control Legislation and Personal Laws providing for right to
maintenance - which will include the right to residence of a wife, including a deserted or divorced wife, may be examined. The Rent Control
Law makes provision for protection of the tenant not only for his own benefit but also for the benefit of all those residing or entitled to
reside with him or for whose residence he must provide for. A decree or order for eviction would deprive not only the tenant of such
protection but members of his family (including the spouse) will also suffer eviction. So long as the tenant defends himself, the interest of his
family members merges with that of the tenant and they too are protected. The tenant cannot, by collusion or by deliberate prejudicial act,
give up the protection of law to the detriment of his family members. So long as a decree for eviction has not been passed the members of the
family are entitled to come to the Court and seek leave to defend and thereby contest the proceedings and such leave may be granted by the
Court if the Court is satisfied that the tenant was not defending by collusion, connivance or neglect or was acting to the detriment of such
persons. Such a situation would be rare and the Court shall always be on its guard in entertaining any such prayer. But the existence of
such a right flows from what has been stated hereinabove and must be recognized. Persons residing with the tenant as members of his family
would obviously be aware of the litigation and, therefore, it will be for them to act diligently and approach the Court promptly and in any
case before the decree of eviction is passed as delay defeats equity. Such a prayer or any dispute sought to be raised post- decree by a
member of family of the tenant may not be entertained by the Court.
25 A Single Bench decision of the Andhra Pradesh High Court in M/s. Bharat Heavy Plates and Vessles Ltd., AIR 1985 Andhra Pradesh
207, is more near to the facts of the case at hand. The husband was an employee in a company. He was allotted a company quarter in which
he lived with his wife. The quarter was the matrimonial home. However, differences developed between the husband and wife, leading to
their estrangement and finally the wife went to the Court, charging her husband with neglect to maintain her and her three minor children.
The husband left the company quarter and it was occupied only by his wife and minor children. The husband also wrote to the company,
terminating the lease which was in his favour. The hovering prospects of eviction led the wife to the Court for protection, seeking an
injunction restraining the company from evicting the wife and her three minor children. The High Court upheld the order impugned before
it, whereby the company was restrained from evicting the wife and her minor children. For forming this opinion, the Court took into
consideration the facts that the quarter was meant to be used by the employee and the husband was under an obligation to provide shelter
to the wife and children. The husband and the company had both recognized the quarter to be the matrimonial home wherein the wife too
was residing. The amount of rent was directed to be deducted from the salary of the husband.
30 Incidentally, we may refer to Karam Singh Sobti & Anr. v. Sri Pratap Chand & Anr., though not directly in point. Proceedings for
eviction were initiated by the landlord against the tenant and sub-tenant unlawfully inducted by the tenant in the premises. The tenant
suffered a decree for eviction and decided not to file an appeal. This Court upheld the right of sub-tenant to file an appeal in his own right
against the decree so as to protect himself even though thereby the tenant would also be freed from the decree.
31. In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for
eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the
contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing
in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than
that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been
available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent
Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her
right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which
the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to
occupy the house as part of right to maintenance coming to an end.
Mr.Pandit then relied upon the judgment in the case of Standard Chartered Bank Vs Dharmindher Bhohi reported in B.C. (SC) 2013 (4) 407. The
reliance upon paragraph nos. 22,25,28 are extracted below:
22. The grievance of the bank does not end here. On the contrary this is the beginning of the end. Accentuating the grievance, it is
submitted by Mr. Jain, learned senior counsel for the Appellant, that the DRAT travelled beyond the prayer made by the borrower inasmuch
as the borrower in essentiality had prayed for grant of compensation and alternatively extension of time for sixty days. Due to the pendency
of the appeal before the Tribunal, submits Mr. Jain, the extension of time melted into total insignificance. Despite that, as the order would
indicate, a consensus was arrived at between the auction purchaser and the borrower and the same is clear from the order, as the DRAT
had directed that the auction purchaser and the borrower would sign the order. The bank was not a party to the said adjustment or
consensus. The bank was only directed to refund the amount along with 9% interest and that has been done without recording a finding
whether the bank was really at fault or not and, more so, when the borrower had exhibited a non-challant attitude not to pay back the
money or to deposit the amount as directed by the High Court. Learned senior counsel is also critical of the order passed by the High Court
which has declined to address the core issue by stating that there was no need to exercise the extraordinary writ jurisdiction under Article
226 of the Constitution. Learned senior counsel would submit that the High Court has failed in its constitutional duty to scrutinize whether a
liberty of the present nature could have been granted by the Tribunal, clothed with such special and restricted jurisdiction.
25. At this juncture, we may clarify that we do not intend to dwell upon the subtle distinction between the compensation and damages as
canvassed at the Bar as that is not needed in this case. The thrust of the matter is whether DRAT has the jurisdiction to grant any liberty
and, more so, in a case when the borrower and the auction purchaser have entered into a compromise. As has been stated earlier, the bank
was not a party to the compromise.
28. In Union of India v. R. Gandhi, President, Madras Bar Association, 2010 (11) SCC 67 the Constitution Bench, after referring to the
opinion of Hidayatullah, J. in Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, 1961 AIR (SC) 1669 the pronouncements in
Jaswant Sugar Mills Ltd. v. Lakshmi Chand, 1963 AIR (SC) 677, Associated Cement Companies Ltd. v. P.N. Sharma, 1965 AIR (SC) 1595
and Kihoto Hollohan v. Zachillhu, 1992 Supp2 SCC 651 ruled thus: -
45. Though both courts and tribunals exercise judicial power and discharge similar functions, there are certain well-recognized
differences between courts and tribunals. They are:
(i) Courts are established by the State and are entrusted with the State's inherent judicial power for administration of justice in general.
Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature.
Therefore, all courts are tribunals. But all tribunals are not courts.
(ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a judicial
member and a technical member who is an ""expert"" in the field to which the Tribunal relates. Some highly specialized fact-finding tribunals
may have only technical members, but they are rare and are exceptions.
(iii) While courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and the Evidence Act,
requiring an elaborate procedure in decision making, tribunals generally regulate their own procedure applying the provisions of the Code
of Civil Procedure only where it is required, and without being restricted by the strict rules of the Evidence Act.
Mr.Pandit has relied on pursis filed on behalf of the Appellant stating that sub-section (1) of Section 22 of the 1993 Act envisage that CPS is strictly
not applicable. Still, the principle of natural justice guides the Tribunal. Form No.35 speaks about the break of duty by the DRT Receiver/Recovery
Officer by not ensuring the issuance and service of the notice to show cause as to why the occupant should not be dispossessed.   Â
Rule 70 & 71 provides that DRT Receiver is bound to follow the procedure by giving notice before taking the possession.
(39) Mr.Anant Shinde tendered the written submissions (Exh 14) in addition to the oral arguments.
(40) The Appellant has no locus standi to challenge the impugned orders. The Appellant is neither borrower, guarantor, nor mortgagor. The Appellant
cannot claim the right in the mortgaged flat, and she is not the owner. Respondent Nos. 3 & 4 are the joint owners. The Appellants challenging the
order dated 23rd February 2018 is time-barred. Respondent No.3 did not obtain the loan with the intention not to pay and allow Respondent No.1 to
take possession of the said flat in the Recovery Proceeding. Respondent Nos.3 & 4 mortgaged the said flat on 7th January 2011. The Appellant
married Respondent No.3 on 17th December 2011. Absurd allegations made by the Appellant that the borrower obtained the loan to evict cannot be
accepted.
(41) Mr.Anant Shinde further submitted that Respondent Nos 2 & 3 did not appear personally or through an advocate. Respondent No.1 took the
physical possession of the said flat without any notice/summons served upon the Appellant is false. The Appellant was informed about the pendency
of the Recovery Proceeding. At the time of carrying out the valuation, the Appellant prohibited the valuer and the Bank Officer from completing their
assignment. The Learned Recovery Officer, therefore, directed the Appellant to co-operate with the Valuer and Bank Officer in carrying out the
valuation. Respondent No.1 obtained an order under Section 14 of the 2002 Act and took physical possession of the said flat on 19th January 2013.
The Appellant committed an act of trespass by breaking open the said flat. Mr.Anant Shinde submits that the Appellant is not legally wedded, wife.
Before the alleged 2nd marriage, the borrowers created mortgage. The Appellant is not entitled to claim protection under the 2005 Act. The Court
Commissioner took the physical possession by following relevant rules and according to the order passed by the Learned Recovery Officer.
(42) Mr.Anant Shinde supports order dated 5th December 2018 passed by the Learned Recovery Officer. Mr.Shinde has relied upon the following
judgment in support of the case of Respondent No.1 in the case of Tax Recovery Officer II, Sadar, Nagpur V/s Gangadhar Vishwanath Ranade
reported in (1998) 6 Supreme Court Cases 658. The reliance upon paragraph nos.10,12,13 are extracted below:
10. The provisions, therefore, of Rule 11 are analogous to those of Order XXI Rules 58 to 61 and 63 of the CPC as they stood prior to the
amendment of the Civil Procedure Code in 1976. In fact, the language of Order XXI Rules 60 and 61 is similar to the language of Rule
11(4) and Rule 11(5) of the Second Schedule to the Income-tax Act. Similarly, the language of Order XXI Rule 63 is similar to the language
of Rule 11(6). Rules 59 to 62 of Order XXI, prior to the amendment of 1976, provide for a summary investigation into possession as distinct
from a thorough trial of ultimate right. No doubt, it is impossible to separate altogether the question of possession and of title. Thus, if the
judgment debtor was in possession, he may have been in possession as agent or trustee for another; and this has to be enquired into. To
that extent title may be a part of the inquiry. Similarly, if the property attached is claimed by a third party who adduces evidence to show
that he was possessed of the property under some kind of a title, the property will have to be released from attachment. The procedure is not
meant to decide intricate questions of law as to title to the property. Therefore, where a claim is made to the property attached, by someone
claiming to be a transferee from the judgment debtor and the claim is disallowed, the claimant can institute a suit under Order XXI Rule 63
to establish his title to the property. In such a suit it would be open to the attaching creditor to plead in defence that the transfer was in
fraud of the general body of creditors and was void under Section 53 of the Transfer of Property Act. Similarily, if. The claim of the
transferee is allowed, the attaching creditor may sue on behalf of himself and all other creditors under Section 53 of the Transfer Property
Act for a declaration that the transfer was void as it was in fraud of the creditors.
12. In the light of this discussion about the provisions of Order XXI Rules 58 to 63, if we examine Rule 11(4) of the Second Schedule to the
Income-tax Act, it is clear that the Tax Recovery Officer is required to examine whether the possession of the third party is of a claimant in
his own right or in trust for the assessee or on account of the assessee. If he comes to a conclusion that the transferee is in possession in his
or her own right, he will have to raise the attachment. If the Department desires to have the transaction of transfer declared void under
Section 281, the Department being in the position of a creditor, will have to file a suit for a declaration that the transaction of transfer is
void under Section 281 of the Income-tax Act.
13. In the present case the Tax Recovery Officer could not have examined whether the transfer was void under Section 281 of the Income-
tax Act. His adjudication of the transfer as void under Section 281 is without jurisdiction. The Tax Recovery Officer has relied upon the
earlier order of the Income Tax Officer dated 9.5.1974 declaring that the transaction is void under Section 281 of the Income-tax Act. In the
earlier proceedings, however, although the High Court has not set aside this order of the Income Tax Officer, the High Court has expressly
held that the order amounted only to an intention of declaration on the part of the Department to treat the transaction as void under Section
281. Such a declaration cannot affect the legal rights of the parties affected under Rule 11. The High Court expressly held that the rights of
the parties under Rule 11 were not affected in any way by this declaration. The Department, therefore, cannot proceed on the assumption
that the transaction is void under Section 281, not can the Tax Recovery Officer, while proceeding under Rule 11, declare a transaction of
transfer as void under Section 281 by relying on the order of 9.5.1974 or otherwise. His jurisdiction relates to examining possession, and
only incidentally, any question of right to possession as claimed by the Objector. The High Court has, therefore, rightly set aside the order
of the Tax Recovery Officer.
Mr.Shinde has also relied upon the judgment in support of the case of Respondent No.1.
1. International Asset Reconstruction Company of India Limited Vs Official Liquidator of Aldrich Pharmaceuticals Limited & Ors â€" (2017)
16 Supreme Court Cases 137.
2. Order below Interim Application under D.V.Act dated 29th January 2020 in Complaint No.2529/SS/2014 before 67th MM Court at
Borivali, Mumbai filed by Mrs Salvia S Mehra against Satinder Mehra.
(43) The Appellant and Respondent No.1 advanced their arguments based on the following issues that require consideration in this appeal:
(44) (1) Whether the Learned Recovery Officer erred in not following the principles of natural justice?
(2) Whether the Learned Recovery Officer erred in directing M/s. Thakkar Auctioneer to execute order dated 23rd February 2018?
(3) Whether the forcible dispossession of the occupant from the mortgaged property is by following due process of law?
(45) Mr. Pandit commenced his arguments by referring to (i) the order sheet and (ii) the affidavit filed by the Respondent no.1 It reveals that the
service of demand notice and attachment warrant is incomplete. Mr. Pandit's argument that the Learned Recovery Officer passed cryptic order finds
force. The Learned Recovery Officer has to be cautious while pronouncing the order. It has to be supported by reasons. This objection is neither
relevant nor will come to the aid of the Appellant in deciding this appeal.
(46) Issue Nos.1 and 3: According to Mr. Pandit the evidence on record demonstrates that the Respondent No.1 erred in not joining the Appellant to
the interlocutory applicationâ€"it than erred in pressing for dispossessing the Appellant without hearing her. The Respondent No.1 failed to issue the
notice, which resulted in the violation of the principles of natural justice. True. As a part of the rule of natural justice, the right of audi alteram partem
is a valuable right which mandates that no one should be condemned unheard. However, Mr. Pandit did not argue on the ""real prejudice"" caused to the
Appellant. Mr. Pandit advanced no argument as to why the Appellant took the law into her own hands to break open the lock when the validly taken
physical possession was disturbed. In my view, the act of the Appellant is contemptuous. One who seeks equity must come to the Court with clean
hands. The application of principles of natural justice is flexible and not rigid. There is no straight-jacket formula to apply the principles of natural
justice. Its implementation would depend upon the facts and circumstances of the case, and therefore, Section 22(1) of the 1993 Act will not apply.
(47) I cannot ignore the facts that under the 2002 Act the Registrar took control of the mortgaged property and handed it to the Respondent No.1. The
Appellant in defiance of the legal act broke open the lock and regained possession. No party can be allowed to take advantage of its wrong for an
ulterior purpose or as a substitute to the civil remedy. The Hon'ble Bombay High Court noted the illegal action of the Appellant. The reliance placed
on the non-compliance of the procedure is redundant. The objection raised by the Appellant is hyper-technical. It is undisputed that the right of the
Appellant to occupy the said flat is minimal. Admittedly, the Appellant is not the owner of the said flat. The highest privilege of the Appellant, if any, is
shared household"" as defined under the 2005 Act and nothing more. Once the Registrar took physical possession of the said flat under the 2002 Act,
the Appellant had the remedy to approach DRT under sub-section (1) of Section 17 of the 2002 Act. I agree with the submission of Mr.Shinde in this
regard. Upon issuance of statutory demand notice under sub-section (2) of Section 13 and measures under sub-section (4) the said flat stood attached
under sub-section (13). Consequent upon attachment under sub-section (13) of Section 13 of the 2002 Act, the Appellant cannot seek relief for the
restoration of possession by application of principles of natural justice. Under the 2002 Act, the control of the said flat validly taken is deemed to be
custodia legis. The learned counsels confirmed the fact that the Appellant used to call them during odd hours. The Appellant uses abusive language
when the officers visit the said flat to discharge their official duty.
(48) The Appellant's obstruction to the execution of the Recovery Certificate is motivated. The Appellant succeeded in obstructing the valuation and
disturbed the possession. The Respondent No.1 has the right to recover its legitimate dues from Respondent Nos.2 to 4. The Appellant's illegal act
concerning the possession of the authorized officer demonstrates disregard to law and order.
(49) Issue No.2: In the application, the Respondent No.1 prayed for appointment of its officials as the Receiver. The Learned Recovery Officer
allowed the prayer of appointing officer of Respondent No.1 as Receiver. The objection would have best suited the mortgagor. The Learned
Recovery Officer acted upon the Regulation to take forcible possession by M/s. Thakkar Auctioneer. The Appellant has neither pleaded nor argued
any malafide of the Ld. Recovery Officer. In my view, there is no malafide intention of the Learned Recovery Officer in doing so. The Learned
Recovery Officer passed the order in good faith.
(50) The Respondent No.1 challenged the locus-standi of the Appellant in filing this appeal. The Respondent No.1 has approbated and reprobated at
the same time. Though the Appellant has produced the marriage certificate, the Respondent no.1 has ignored the same. The Appellant is the legally
wedded wife (2nd) and lastly, resided in the said flat preceding the dispossession by the Registrar under the 2002 Act. The Respondent No.1 is
incorrect in saying that the Appellant has no right in the said flat. The shared household, as defined under the 2005 Act, is the basis of the Appellant's
case. This minimal right gives the appellate, the right to knock the door of this Tribunal having jurisdiction. The expression ""any person aggrieved
under section 30 would provide the appellant right to approach this Tribunal.
(51) Mr. Pandit could not persuade me, that Respondent Nos.3 and 4 adopted tactics to evict the Appellant by not contesting Original Application
No.14 of 2014. The basis of allegation is ill-founded and is irrelevant in deciding the appeal. The Appellant claims protection under sections 12 to 19 of
the 2005 Act against the Respondent No.1 is illogical. This protection is available to the Appellant against Respondent Nos.3 and 4 under the 2005
Act. The Appellant cannot claim this protection either under the 1993 Act or 2002 Act against the Respondent No.1. The Appellant and Respondent
No.4 has made complaint and counter-complaint against each other. The pendency of the complaint under the 2005 Act has no relevance in deciding
the present appeal.
(52) As far as the issue of limitation is concerned, my predecessor granted liberty to the Appellant to challenge the impugned orders. I'm afraid I have
to disagree with Mr.Shinde that the challenge to order dated 23rd February 2020 is time-barred.
(53) The Appellant and the Respondent No.1 placed reliance upon various judgments referred to hereinabove has no applicability to the facts and
circumstances of the present case. Hence, not discussed.
(54) Based on the above discussion, I pass the following order:
ORDER
The appeal stands dismissed. Costs made easy.
