V.K.SHUKLA, J. - (1.) PRESENT writ petition has been filed by the petitioners, questioning the validity of decision dated 27.07.2009 taken by the Chairperson of Debt Recovery Appellate Tribunal, Allahabad in Appeal No.770 of 2007 (Vipin Kumar Kansal and another vs. Bank of India and others) arising out of order dated 04.10.2006 passed by the Presiding Officer, Debt Recovery Tribunal, Lucknow.
(2.) BRIEF background of the case, as disclosed in the writ petition, is that Ghaziabad Improvement Trust granted lease in favour of Jamuna Das Gupta father of Santosh Kumar Jindal grandfather of Rajeev Kumar Jindal in respect of plot No. K.C. 68 measuring 246.66 square meter situated in Kavi Nagar, District Ghaziabad, on 31.12.1966. Civil Suit No.1323 of 1996 was filed by Santosh Kumar Jindal before Civil Judge (Senior Division), Ghaziabad, and therein Jamuna Das Gupta (father), Dinesh Kumar Jindal, Ashok Kumar Jindal, Anil Kumar Jindal, Sanjay Kumar Jindal, all sons and the daughter Smt. Sushila Devi were impleaded as parties. Said suit was decided on the basis of compromise, wherein each and every family member of Jamuna Das Gupta was signatory, and as per the aforesaid compromise, decree was passed on 05.08.1997 and the property in question, viz. K.C. 68, measuring 246.66 square meter, Kavi Nagar, District Ghaziabad was transferred to Santosh Kumar Jindal through family compromise. Based on the said decree, Santosh Kumar approached the Bank of India and created a mortgage of the said property and took loan. Before the Bank a consent letter dated 21.08.1997 written by Ghaziabad Development Authority Officer was also produced, wherein permission was accorded to create mortgage of the mortgaged property in favour of the Bank. It appears that after the said property had been mortgaged with the Bank, Jamuna Das Gupta got converted the property in question into free hold property in his name on 22.12.1999. Jamuna Das Gupta executed power of Attorney in favour of Santosh Kumar Jindal. Said Santosh Kumar being holder of power of attorney of Jamuna Das Gupta on 13.09.2002 entered into an agreement to sell with the petitioners, and subsequently, sale deed was executed on 29.03.2003. As M/S Ganga Tea Products failed to pay off the loan, proceedings were initiated and orders were passed in favour of the Bank for recovery of the amount in question, thereafter, for selling the property in question proceedings were undertaken, then objections were filed by the petitioners contending therein that they were bona fide purchasers for value without notice, as such property in question cannot be auctioned. Objections preferred on behalf of the petitioners were accepted by the Recovery Officer of Debt Recovery Tribunal on 24.11.2003. Thereafter, Debt Recovery Tribunal on 04.10.2006 proceeded to pass order in appeal preferred under Section 30 of the aid Act, by for reversing the earlier order, and holding that the mortgage executed in favour of the bank was valid and buyers were not baonfide purchasers. Against the said order, appeal had been preferred before the Debt Recovery Appellate Tribunal, Allahabad and the same has been dismissed. At this juncture, present writ petition has been filed. Counter affidavit has been filed by the bank to which rejoinder affidavit has been filed. Service on respondent Nos 4 to 7 has already been accepted to be sufficient, and thereafter with the consent of the parties, who are before the Court present writ petition has been taken up for final hearing and dispoosal.
(3.) SRI Abhitab Kumar Tiwari, learned counsel for the petitioner, contended with vehemence that in the present case mortgage was not at all valid and the same was executed by totally incompetent person and the circumstances clearly reflected that the petitioners were bona fide purchasers for value without notice, as such the impugned orders are liable to be quashed and the writ petition deserves to be allowed.;