Rameshwari v. Punjab and Sind Bank

1. Exemption allowed subject to all just exception..

2. Application st^ds disposed of.

3. According to the petitioner, aggrieved by the order dated 07.10.2011 passed by Additional Chief Metropolitan jVIagistrate in case No. 1925/2/2011, whereby a Receiver was appointed to take possession of the mortgage property i.e. entire second floor with roof rights of property bearing No. 33, Block-E, Pocket-18, Sector-3, measuring 31.69 Sq. Meter, Rohini, Delhi, the petitioner filed SA which was disposed of on 19.05.2011 by the Debt Recovery Tribunal and following order was passed: W.P.(C) 10376/2015 Page 1 of[4] 2015:DHC:11501-DB K "This SA has become infructuous as the second floor ofthe property in question is not claimed by the applicant herein. In view of the above, this SA is dismissed as infructuous. File be consigned to record. "

4. An appeal against the aforesaid order was filed and Debt Recovery Appellate Tribunal on 03.08.2015 passed the following order: "The appellant had filed SA to challenge the orders dated 07'^ October, 2011 and 24"^ December, 2011 passed by the ACMM. The counselfor the appellant has invited my attention to the prayer made in the SA to say that he had challenged the order dated 07'^ October, 2011 passed by the ACCM appointing Receiver to take possession ofthe secondfloor ofthe property. There would be a serious issue in regard to the jurisdiction ofthe Tribunal to interfere in the order passed by the ACMM. Otherwise also, the SA has been dismissed as infructuous on the ground that the appellant is not claiming the second floor of the property. The counselfor the appellant could not satisfactory show that the appellant has claim over the second floor of the property. Even possession of the second floor has also not been taken by the Receiver. If still the appellant has any grievance, she may have her remedy in accordance with law. No case for any interference in the present appeal is made out. The appeal is accordingly dismissed in limine. In view of the disposal of the appeal, all pending applications are also disposed of. " W.P.(C) 10376/2015 Page 2 of[4]

5. Mr. Sharma, learned counsel for the petitioner submits that neither the Debt Recovery Tribunal (DRT) nor the Debt Recovery Appellate Tribunal (DRAT) have considered the matter on merits. He further submits that the petitioner did not make any statement thatthepetitioner isnotclaiming herrights over thesecond floor.

6. Mr. Pratap Singh, Mr. Suresh Arora and Mr. Gaurav, Advocate enter appearance on an advance copy on behalf of the contesting respondent Nos. 1 to 3 and submit that thepresent writ petition is misconceived as the subject property already stands sold under SARFAESI Act and a certificate has already stands issued.

7. Learned counsel for the respondents also opposed this petition on the merits and submits that intentionally the property was sold by the petitioner herein by means of Sale Deed and reliance has been placed on closure report of the police which was based on the investigation carried out pursuant to the FIR registered on the complaint filed by the petitioner.

8. Heard. Since, there is no clarity in the order dated 19.05.2015 and also order dated 03.08.2015, as to how, the SA filed by the applicant/petitioner herein has become infiructuous as in case such a statement was made before the Presiding Officer, the applicant would have not filed an appeal.

9. We accordingly direct the Presiding Officer to hear the SA 214/2012 filed by the petitioner on merits and render a decision.

10. Parties to appear before the concerned Presiding Officer on 23.11.2015. W.P. (C) 10376/2015 Page 3 of[4]

11. Present writ petition is disposed of in above terms.

12. Copy of the order be given dasti under the signatures of Court Master. CM APPL. No. 25971/2015 (Stay)

12. In view of the orderpassedin the writ petition, presentapplication is rendered infructuous.

NOVEMBER 04, 2015 gr W.P.(C) 10376/2015 SANGITA G.S.SISTANI, J GRAS^GAL, J Page 4 of[4]