Decided on September 03,2004



S.K.Mohapatra, - (1.) THIS pertains to the Miscellaneous Application filed Under section 26(2) of the Recovery of Debts Due to the Banks and Financial Institution Act, 1993 (hereinafter referred as the 'Act') by one Sri Prahlad Rai Munka for withdrawal of recovery certificate issued in O.A. No. 41/2001.
(2.) I have heard the arguments of parties. I have also perused the rejoinder of Bank, written submission of petitioner and other relevant case papers. The precise facts of the case is that respondent Decree Holder Allahabad Bank had filed an application Under section . 19 of the Act against M/s. R.K. Motors and Investments Co. and Others before DRT, Patna which was registered as O.A. No. 41/2001. In the said original application an exparte judgment was passed against all the judgment debtors on 10.12.2001 followed by Recovery Certificate dated 18.12.2001. Pursuant to aforesaid Recovery Certificate an order of attachment was passed in the recovery proceeding on 8.2.2002. The applicant moved the Hon'ble Jharkhand High Court against the said order of attachment dated 8.2.2002 in W.P.C. No. 1335/2002. Hon'ble High Court disposed of the said writ with a direction to the petitioner to approach Recovery Officer for redressal of his grievances. Consequently, the petitioner approached the Recovery Officer and his objection inter alia was rejected by the learned Recovery Officer on 25.2.2004.
(3.) IN the present Miscellaneous Application the petitioner has taken the following grounds : (a) that the learned Recovery Officer has not applied his judicial mind and has failed to consider the materials available on records; (b) that the impugned order is vitiated due to non consideration of documents of titles by the learned Recovery Officer in its proper perspective; (c) that the learned Recovery Officer has not at all considered the effect of mortgage by a mortgagee who has already transferred his/her title by executing a gift deed prior to such mortgage; (d) that the learned Recovery Officer has also failed to consider the importance of non encumbrance certificate dated 24.5.1996 before execution of the sale deed dated 5.6.1996; (c) that the learned Recovery Officer has not applied his judicial mind and has not appreciated the factum of title before passing the impugned order; (f) that the order passed by the learned Recovery Officer is otherwise illegal, perverse and liable to be set aside; (g) that the Bank got the certificate issued by misleading the Hon'ble Tribunal because the Bank has granted loan to the defendants without ascertaining the fact that the mortgagee have already gifted the said property before mortgage; (h) that an unregistered document shall not prevail over the registered documents.;

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