Published on: October 28, 2023 at 11:18 IST
Court: Supreme Court of India
Citation: Janki Vashdeo Bhojwani V. Indusind Bank Ltd. (2004)
Honourable Supreme Court of India has held that if the person who is joint owner of the mortgaged property and has never been a debtors nor guarantors in favour of the financial institution then such property can not attached and sold in Execution of the Decree. It is further held that if such property is a Residential in nature then the provision of Section 44 of the Transfer of Property Act would apply and financial institution has to file for Suit for Partition before taken possession of the property.
24. In our view, it is essential, before any further orders can be passed to first decide whether or not the appellants have a share in this property. We therefore remit the matter back to the Debt Recovery Tribunal to record a finding whether or not on the date the decrees were passed, the appellants were co-owners of the property at 38, Koregaon Park, Pune and if so, to what extent. In so deciding the Debt Recovery Tribunal will undoubtedly ascertain whether the appellants had any independent source of income and whether they had contributed for purchase of this property from their own independent income.
The Debt Recovery Tribunal will also decide whether this property was the residence of the appellants at the time possession was taken. The Debt Recovery Tribunal shall permit the parties to lead evidence, both oral and documentary. It must be clarified that the burden of proving that the appellants have a share in the property will be on the appellants. The Debt Recovery Tribunal shall then forward its decision to this Court within a period of six months from today.
Drafted By Abhijit Mishra