Allowed

Kanwal Kapoor v. the Punjab & Sind Bank & Ors.

Delhi HC19 Feb 2016W.P.(C)/1362/2016

Case brief

AI extract

What is this about?

A writ petition challenging an order of the DRTA allowing execution against properties where the petitioner claims possessory rights under an agreement to sell and Section 53A of the Transfer of Property Act. The High Court allowed the petition, set aside the DRTA order, and remanded the matter for fresh adjudication applying correct principles including Explanation II to Section 3 of the TP Act.

What did the court decide?

The impugned order dated December 14, 2015 passed by the DRTA was set aside. The matter was remanded to the DRTA for fresh adjudication guided by this order to decide on the applicability of Explanati

Kanwal Kapoor Vs the Punjab & Sind Bank & Ors. — Banking and Recovery | Delhi HC (2016)

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$~17

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 1362/2016

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KANWAL KAPOOR ..... Petitioner Represented by: Mr.Rajeeve Mehra, Sr.Advocate instructed by Ms.Sangeeta Sondhi, Mr.Jai Prakash and Ms.Shruti Aggarwal, Advocates

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versus

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THE PUNJAB & SIND BANK & ORS ..... Respondents Represented by: Mr.Khalid Abdullah, Advocate for R-1

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CORAM:

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HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA

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O R D E R % 19.02.2016

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CM No.5961/2016

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Allowed subject to just exceptions.

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W.P.(C) No.1362/2016

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Having heard learned counsel for the parties we set aside the impugned order dated December 14, 2015 passed by the Debts Recovery Appellate Tribunal because learned counsel for the respondent does not dispute that the Code of Civil Procedure does not apply to proceedings before the Debts Recovery Tribunal concerning execution of decrees passed by DRT, and further, amendment introduced in the Code of Civil Procedure on July 01, 2002 is wholly irrelevant.

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We have to remand the matter to the Debts Recovery Appellate

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Page 1 of 3

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W.P.(C) No.1362/2016

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Tribunal because the real issue has not even been captured, much less decided by the Debts Recovery Appellate Tribunal.

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As per the petitioner, Sh.Ram Narayan Gogia, holder of perpetual lease-hold rights in land bearing Municipal No.D-137, Anand Niketan entered into an agreement to sell the same to the petitioner on December 10, 1976 and received entire sale consideration for the land and put the petitioner in possession thereof. Under a conversion policy the lessor directly executed a conveyance deed in favour of the petitioner on October 25, 1994. As per PNB, Sh.Ram Narayan Gogia had stood as a guarantor and had created an equitable mortgage of the property in its favour in 1978 i.e. two years after the agreement to sell.

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Whether the property could be attached and sold in execution of a decree against the borrower and the guarantor required a consideration, with reference to the interest of the petitioner, which he claims and for which Explanation II to Section 3 of the Transfer of Property Act, 1882 would have to be considered by the Debts Recovery Appellate Tribunal for the argument of the petitioner that when the mortgage was created the bank would be deemed to have notice of petitioner’s possessory right in the property under an agreement to sell and possession protected under Section 53A of the Transfer of Property Act, 1882. Petitioner’s contention that notwithstanding an agreement to sell not being treated as an interest in a property as conventionally understood, would be sufficient interest for being protected, as the word interest is unconventionally understood and for which there are decisions, albeit dealing with objections under Order 21 Rule 64 of the Code of Civil Procedure, principle laid down wherein would apply to attachments by the Debts Recovery Tribunal.

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Page 2 of 3

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W.P.(C) No.1362/2016

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Setting aside the impugned order dated December 14, 2015, Appeal No.377/2015 filed by PNB is restored for fresh adjudication with a direction to the Debts Recovery Appellate Tribunal to be guided by the present order and re-decide the appeal keeping in view the correct principles of law applicable.

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No costs.

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CM No.5960/2016

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Dismissed as infructuous.

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PRADEEP NANDRAJOG, J.

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MUKTA GUPTA, J.

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FEBRUARY 19, 2016 mamta

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Page 3 of 3

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W.P.(C) No.1362/2016

Kanwal Kapoor v. the Punjab & Sind Bank & Ors.

Case brief

What is this about?

What did the court decide?

Kanwal Kapoor v. the Punjab & Sind Bank & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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