Decided on August 12,2003



Pratibha Upasani, Chairperson - (1.)THIS Misc. Appeal is filed by the appellant original applicant Punjab and Sind Bank, being aggrieved by the order date 19.8.2002 passed by the learned Presiding Office of Debts Recovery Tribunal-II, Mumbai in Appeal No. 8/2002. The said appeal was filed by the appellant/obstructionist Mr. Pankaj Mehta being aggrieved by the order passed by the Recovery Officer of Debts Recovery Tribunal-II, Mumbai on 13.4.2002, whereby application in R.P. No. 77/2001 for lifting the attachment over Plot No. 22-A, Shri Bhakti Nagar Co-operative Housing Society, Mathani Road, Rang Bhavan, Rajkot, Gujarat State, came to be rejected. Those recovery proceedings had arisen from recovery certificate issued by DRT-II in Original Application No. 2405 of 1999 against respondent Nos. 2 to 8. By the impugned order dated 19.8.2002, the learned Presiding Officer allowed the said appeal filed by the obstructionist Mr. Pankaj Mehta and the order passed by Recovery Officer on 13.4.2002 rejecting his claim/objection was set aside and the attachment of the property described above, came to be vacated. Hence appeal by the Bank.
(2.). Few facts, which are required to be stated, are as follows:
In the course of recovery proceedings before the Recovery Officer, the obstructionist Mr. Pankaj Mehta, who was appellant before the learned Presiding Officer contended that he had absolute rights, title and interest in the property described above, which was in his exclusive possession. It was his contention that he had purchased the said premises from one Mr. Madhukar v. Gokam under agreement dated 18.9.1994 and subsequent agreement dated 9.2.1996. It was contended that one Mrs. Mangala Arun Gokam by her power of attorney dated 18.8.1994 had given powers of Mr. Madhukar v. Gokam for the purpose of sale/transfer and executing necessary documents and by virtue of this power of attorney Mr. Madhukar Gokam had executed aforesaid registered deeds in favour of the appellant/obstructionist Mr. Pankaj Mehta.

It appears that there was suit being Suit No. 122/1997 filed by Mrs. Mangala Arun Gokam against Mr. Madhukar Gokam and Ors., which was pending in the Court of Civil Judge, Senior Division, Rajkot. It also appears that in those proceedings, the said Mrs. Mangala Arun Gokam had taken out application for interim relief contendinginter alia, that the power of attorney in favour of Mr. Madhukar Gokam was forged, but the learned Civil Judge refused to grant any interim relief in the said application. The appellant/obstructionist Mr. Pankaj Mehta had contended in the recovery proceedings that he was thus, the owner in possession and; therefore, the property was not liable for attachment. According to him, Recovery Officer committed error in rejecting his application for lifting the stay. It was also contended that Recovery Officer erred in giving undue importance to the fact that the society had not given NOC to him, that one of the joint owners viz. minor Ms. Urvi Arun Gokam's share could not have been sold without permission of the competent Court and that agreement was subject to the conveyance being executed. It was therefore prayed by the obstructionist that the Recovery Officer's order was not in accordance with law and was based on wrong premises and hence be quashed.

In response to the recovery proceedings Mr. Madhukar Gokam opposed the application of the obstructionist contending that alleged power of attorney on the basis of which agreements in question were said to have been executed by Mr. Madhukar Gokam were having forged signatures and, therefore, those documents did not convey any right, title or interest in the appellant/obstructionist. It was also stated that by order dated 2.9.1998 passed by Justice Mr. S.H. Kapadia when the suit was still in the High Court, Mr. Madhukar Gokam had been restrained from alienating the plot.

The Bank also opposed the appeal before the learned Presiding Officer but did not file any formal reply.

The learned Presiding Officer after hearing arguments of the parties concerned came to the conclusion that at that stage, Mr. Madhukar Gokam had executed agreement for sale-in favour of the appellant/obstructionist on 18.8.1994 agreeing to sell property in question for Rs. 11 Lacs and odd. The learned Presiding Officer also observed that supplementary agreement, which was also a registered agreement, was executed by said Mr. Madhukar Gokam in favour of the appellant/obstructionist on 9.7.1996 under which the executor acknowledged to have received entire consideration and parted with possession of the property in favour of the appellant Mr. Pankaj Mehta. Both these documents were executed on the basis of power of attorney in favour of Mr. Madhukar Gokam executed in August, 1994 by Mrs. Mangala Arun Gokam for herself and for her the then minor daughter Ms. Urvi. Mrs. Mangala Gokam, however, subsequently had challenged in the Civil Court the very execution of power of attorney and her case was that the same was having forged signatures. This controversy was the subject matter of Regular Civil Suit No. 122 of 1997 and was pending in the Court of Civil Judge, Senior Division, Rajkot. The learned Presiding Officer therefore took the view that the Tribunal could not look into that question, but the property was indisputably in the possession of the appellant and that this fact was fortified by averments in the application made by Mrs. Mangala Arun Gokam for interim relief in RCS No. 122 of 1997 in the Court of Civil Judge, Senior Division, Rajkot. The learned Presiding Officer took note of the fact that the reliefs sought by the obstructionist in the instant application herein on the premises that the property was in his possession. After hearing both the sides and having considered the scope of Rule 11 of II Schedule of Income Tax Act, which is applicable to the execution proceedings before DRT, came to the conclusion that the Recovery Officer could not decide the question of title and, thus, went beyond the scope of investigation to be made by the Recovery Officer under Rule 11 (supra) while deciding the claim/objection of the appellant.

(3.)I have heard Mr. Balsara for the appellant and Mr. Parihar for the respondent Bank. I have also gone through the proceedings and in my view, the impugned order is correctly passed and interference is called for.

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