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Debt Recovery Appellate Tribunal - Delhi

Kanta Devi Jain vs Central Bank Of India on 17 December, 2002

Equivalent citations: II(2003)BC104

ORDER

K.S. Kumaran, J. (Chairman) Miscellaneous Application 590/2002

1. Heard Counsel for the appellant. This is only an application for amendment of the relief column in the appeal, which is incomplete. The amendment proposed is only formal, and, therefore, this application is allowed. Let the amendment as proposed be carried out in the Memorandum of Appeal by the learned Counsel for the appellant today itself. This application is disposed of accordingly.

2. The appellant raised an objection before the Recovery Officer (DRT-II, Delhi) that the property in question should not be attached and sold in execution of the Recovery Certificate inasmuch as it was only residential property and, therefore, exempt under Section 60 of the C.P.C. This objection was rejected by the Recovery Officer on the ground that the property is a mortgaged property. Therefore, the question of its being exempted from attachment and sale by virtue of Section 60 did not arise. Therefore, he rejected the objection. The appellant went on appeal to the DRT-II, Delhi wherein the appellant raised completely different objections. According to the appellant, the liability of the principal debtor as on 19.12.1987 was Rs. 11,648.45 only, and this had been paid and, therefore, there was no further liability which the appellant herein was bound to pay by virtue of her personal guarantee. The appellant also raised the plea that the mortgage was only in respect of the term loan facility granted to the 1st defendant, and not in respect of the working loan credit facility availed of by the 1st defendant. This contention raised for the first time in appeal was rejected by the learned Presiding Officer, DRT-II, Delhi on the ground that it will not be open for the said Tribunal sitting on appeal against an order passed in execution proceedings, to reopen and go into the merits of the case once again. In my view, the learned Presiding Officer has rightly held so inasmuch as the Executing Court will not be entitled to go behind the decree. If the contention of the appellant was that the mortgage created by her did not cover the working loan credit facility, this plea could have been put forward in opposing the O. A. Concededly, the appellant had not done so. She had remained ex parte, and a final order had been passed on the basis of which, a Recovery Certificate had also been issued. It is also concerned that an application to set aside the said final order was also dismissed. In these circumstances, it is not open to the appellant now to argue before the Recovery Officer or before the DRT that the Executing Court should reopen the matters, and hold that the mortgage did not cover the working loan credit facility. Therefore, finding no merit in the appeal, the same is dismissed in limine.

3. Miscellaneous Application No. 475/2002 seeking stay is also dismissed.

4. Copy of this order be furnished to the Counsel for the appellant.