Decided on October 24,2007



M.C. Jain, J. (Chairman) - (1.) THE dispute in this Miscellaneous Appeal relates to Shop No. 42, Palika Market, Near Information Centre, Bhilwara (Rajasthan). The necessary background facts are narrated for the sake of clarity.
(2.) THE respondent -bank herein filed O.A. No. 576 of 1998 against five defendants, namely, M/s Rajat Fabrics (Pvt.) Ltd., Mr. Gyanmal Pangaria, Mrs. Shobha Pangaria, Mr. Sohan Lal Pangaria and Rajasthan State Industrial Development and Investment Corporation Ltd., for the recovery of Rs. 67 lakhs and odd. Mr. Gyanmal Pangaria and his mother Mrs. Shobha Pangaria (defendants Nos. 2 and 3 respectively in the O.A.) were the directors of the main borrower - -M/s. Rajat Fabrics (Pvt.) Ltd., which was a company registered under the Indian Companies Act. The defendants Nos. 2 and 3 had given personal guarantee against the loan facilities availed of by the defendant No. 1. Defendant No. 2 Mr. Gyanmal Pangaria had also mortgaged the property in question (belonging to HUF whereof he was the karta) as security for the repayment of the loan. Some property had been mortgaged by the defendant No. 4 Mr. Sohan Lal Pangaria also, but we are not concerned with the same in this appeal, because the appellant Rajat Pangaria, son of the defendant No. 2 Mr. Gyanmal Pangaria is staking his claim to the aforesaid HUF property only. The suit was decreed by the Tribunal below on March 1, 2001, in the following terms: Thus, the plaintiff -bank is entitled to recover the amount of Rs. 67,63,564.74 paise from the defendants with cost. In this matter, defendant Nos. 2 and 4 have kept their personal properties mortgaged and defendant No. l has created second charge on his factory. In these circumstances, since defendant Nos. 2 and 4 have kept their properties situated in Sanganer, mortgaged to the bank and defendant No. l company has also created second charge on his property, I think it justified to allow interest at 6 per cent per annum as per the decision of the hon'ble Supreme Court reported in N. M. Veerappa v. Canara Bank . If defendants Nos. 1, 2 and 4 deposit the above amount within 6 months along with interest at 6 per cent from the date of institution of the suit till the date of recovery with cost, then the defendants will be entitled to their documents, otherwise the plaintiff -bank will be entitled to sell the properties after a period of 6 months and can recover its loan by selling the above properties. The plaintiff -bank will be entitled to recover its whole amount along with interest from the defendants jointly and severally and if this amount is not compensated by the mortgaged properties, then the plaintiff -bank will be entitled to recover the amount by selling the properties of defendants Nos. 2 to 4. The defendant No. 5 is RICCO and after selling the properties of defendant No. 1 whatever surplus amount is being received, RICCO can deposit surplus amount in the account of the plaintiff -bank. As a natural consequence of the above decree, the respondent -bank 3 proceeded to recover the due amount by putting to auction the aforesaid mortgaged property. At this juncture, the appellant came in picture and preferred objections before the recovery officer. The gist was that he was the owner of the undivided portion of the property in question in which his share was one third as co -sharer alongwith the defendant No. 2 Mr. Gyanmal Pangaria and the defendant No. 3 Mrs. Shobha Pangaria (his grand mother). Thus, each of the three had one third share in the said joint Hindu family property. The title deed was also said to be in the name of HUF known as Gyanmal Rajat Kumar. He (Rajat Pangaria) was not defendant or JD. He was in no way liable for payment of any liability related to the OA in question. For all practical purposes, he was a stranger to the proceedings. His objections did not find favour with the recovery officer who rejected the same by order dated 26.2.2002. He preferred Appeal No. 6 of 2002 before the Presiding Officer, but did not meet with better luck there also. The Presiding Officer of the Tribunal below dismissed the appeal on February 13, 2004. Aggrieved, he has preferred this second appeal.
(3.) I have heard Mr. M. Dutta, learned Counsel for the appellant as also Mr. Jai Mohan, learned Counsel for the respondent -bank. Reply has also been filed by the respondent -bank against the appeal.;

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