ASHOK JAIN Vs. MAHESH MITTAL
DEBTS RECOVERY APPELLATE TRIBUNAL
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R.S. Tripathi, J. (Chairperson) -
(1.) THIS is an appeal filed under Section 20 of the RDDBFI Act, 1993. The factual matrix of this appeal is that the State Bank of Indore -respondent advanced by way of financial assistance to the respondent Chirag Metal Ltd., of which Bal Krishna Gayke is the Director. The money was not paid. Thereafter respondent -Bank filed a civil suit for recovery of money in the District Court, Indore, from where it was transferred to the D.R.T. after implementation of the Act of 1993 and this case registered as T.A. No. 892/1998.
(2.) THE Recovery Officer on the basis of recovery certificate proceeded for the auction of the mortgaged property, which is the house involved in this appeal. Present appellant -Ashok Jain is the auction purchaser. He deposited the amount of auction money. Recovery Officer by an order dated 10th June, 2005 disposed of the objection filed by Milind @ Raju Chandwaskar and another, who claimed before the Recovery Officer that they had taken on rent western portion of the first floor of the house in question, which included two rooms, one hall and staircase for nonresidential purposes. It was alleged in the objection, that above portion of the house in question was taken in the year 1962 by their father Madhukar Rao Chandwaskar on rent and after death of their father, they were continuing as tenants running their business in the said accommodation. They filed before the Recovery Officer the entries of assessment of Nagar Nigam, Indore, a hand written note purported to be written for giving receipt of rent, electric and phone bills and cutting of the newspapers. They claimed that they were continuing in the possession of the said portion of the disputed house since long, therefore, the auction purchaser should be handed over symbolic possession of the above rented portion. The above objection was replied by auction purchaser i.e. the present appellant praying for handing over the position of the above portion of the disputed house or the basis of auction and issuance of sales certificate in his favour. He challenged the possession of objector and pleaded that the objectors had no possession over any portion of the disputed house. The Recovery Officer after considering the evidence brought before him went through the record in the light of arguments advanced from the side of the parties, directed to hand over the symbolic possession of the aforesaid portion admitting objectors to be tenant and issued a direction to the Advocate Commissioner to comply with the order with the help of police.
3.1 Feeling aggrieved against this order of Recovery Officer, Appeal No. 19/05 was filed under Section 30 of the said Act before the D.R.T., Jabalpur, who passed an order on 12th December, 2005. In the meantime, Writ Petition No. 1629/05 was filed by the respondent No. 1 -Mahesh Mittal against the State Bank of Indore and 4 others in the Hon'ble High Court of Madhya Pradesh Bench at Indore. The Hon'ble High Court disposed of that writ petition by issuing a direction on 13th September, 2005 to decide the appeal within three months in the light of its earlier order dated 19th February, 2003 passed in Writ Petition No. 1562/02 Surendra Singh v. Recovery Officer II (2003) BC 428, directed the parties to comply with the direction contained in para 17 of that order and also directed to decide the appeal within three months in the light of above directions contained in the case of Surendra Singh v. Recovery Officer.
(3.) ON the basis of above direction of the Hon'ble High Court, learned Presiding Officer, D.R.T., Jabalpur decided the above appeal on 12th February, 2005 holding that Rule 40 of the Income -tax Act, Certificate (Procedural) Rules give protection to lawful tenant against physical dispossession but symbolic possession was permissible in favour of auction purchaser. He decided the issue Nos. 1 and 2 remitted by the Hon'ble High Court in negative and thereafter decided the issue Nos. 3 and 4 remitted by the Hon'ble High Court holding that the appellant/objector was a lawful tenant of Chirag Metal Ltd. and was in possession of the shop. Therefore, issue No. 3 was decided in negative and issue No. 4 was decided in affirmative holding that the objector being lawful tenant was entitled to replace the possession of shop restoring status quo ante. Against this judgment of D.R.T., Jabalpur, the present appeal has been filed.;
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