32 % 23.03.2011 Present: Mr. Deepak Dhingra, Advocate for the Petitioner. Mr. Hashmat Nabi & Mr Pramod, Advocates for the Respondent No. 1/Bank. Mr Ravi Data & Mr Rajesh Sharma, Advocates for Respondent Nos. 2 to 6. + CM No. 4167/2011 (Exemption) in WP(C) 1969/2011 * Allowed subject to just exceptions. Application stands disposed of. WP(C) 1969/2011 & CM No. 4166/2011 (Stay) The respondent no. 1/bank gave credit facilities to respondent no. 2. The respondent nos. 3 to 6 and the petitioner are alleged to have mortgaged property bearing No. C-134 D, Surya Nagar, Ghaziabad, U.P. (in short the 'property'), to secure the loan. The loan account became irregular resulting in proceedings both for recovery of the debt by filing an OA before the Debt Recovery Tribunal (in short 'DRT') coupled with issuance of demand notice under Section 13(2) and action under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short 'SARFAESI Act') qua the property. The petitioner filed an SA before the DRT raising the plea that he had not signed the sale deed and that his signatures were forged. The DRT came to the conclusion that it had not been proved that WP(C) 1969/2011 Page 1 of 5 Digitally Signed By:AMULYA Signature Not Verified notice was served on the petitioner as a co-owner and mortgager of th property and thus granted liberty to the bank to serve the notice on the petitioner under Section 13(2) of the SARFAESI Act whereafter only it could proceed further. The said notice was served. On 15.10.2010 in the proceeding before the DRT the common counsel representing all the parties submitted that the possession of the mortgaged property could be handed over to the receiver to be appointed by the Tribunal. Though, further time was sought to seek fixation of reserve price and to get a better price, if required. The receiver was thus appointed to visit the premises on 23.10.2010. The receiver visited the premises and took over possession in the presence of the counsel and one of the other parties. However, on 23.11.2010 a new set of counsels put an appearance separately for respondent nos. 2 to 6 and for the petitioner. Both the counsels sought to plead that they had never authorized the counsel, who was earlier appearing in the matter, to make a statement, as recorded on 15.10.2010. This plea was not upheld. Respondent nos. 2 to 6 assailed the order dated 23.11.2010 before the Debt Recovery Appellate Tribunal (in short 'DRAT'), which dismissed the appeal on 02.02.2011. Subsequently, the present petitioner filed a separate appeal, which has been dismissed by the impugned order dated 08.03.2011. There are two aspects of the matter which emerge from the WP(C) 1969/2011 Page 2 of 5 impugned order. The first is arising from the concession made by the common counsel appearing for respondent nos. 2 to 6 and the petitioner and the property to be handed over to the receiver, and the second relates to the action taken under the SARFAESI Act. It is not in dispute that the counsel was duly authorized through a POA. Not only that, the counsel appeared even at the site (albeit not the petitioner) to hand over possession. It is thereafter that the petitioner and respondent nos. 2 to 6 devised the methodology of engaging a new counsel to back out of the earlier statement and thus two sets of counsels put an appearance. It is not as if the petitioner has made any complaint against the counsel for acting beyond his brief. The blame is now sought to be put on the counsel to wriggle out of the sale of the property. We may also note that the counsel for the petitioner before the DRAT vehemently contended that the DRAT itself should not compare the signatures in the documents and the only remedy available was to refer it to a hand writing expert in view of an application filed by the petitioner before the DRT. The report of the hand writing expert, in our opinion, is only a piece of evidence during trial and there cannot be any compulsion on the judicial forum to necessarily refer the matter to a hand writing expert. The report, if obtained, would have to be dealt with as an expert opinion. WP(C) 1969/2011 Page 3 of 5 M We are unable to accept the plea of the learned counsel for the petitioner that the interest of the petitioner and the respondent nos. 2 to 6 was not common. If it was to be believed that the petitioner was not in the know of things despite alleged to be a co-mortgagee and residing in the same premises of respondent nos. 5 & 6, there would naturally be conflict of interest between respondent nos. 2 to 6 and the petitioner. The petitioner chose to engage the same counsel who represented the common interest of both the petitioner on one hand and respondent nos. 2 to 6 on the other hand. The concession was made by duly authorized counsel. The parties chose to file the appeals after lapse of time. Both taking their own chances. We inquired from learned counsel for respondent nos. 2 to 6 as to whether they had assailed the order passed by the DRAT on 02.02.2011 adverting the same order of the DRT dated 23.11.2010, as in the present case. The answer is that they are in the process of filing the writ petition. Obviously the parties are moving parallely to somehow evade the natural consequences of sale of the property for realization of the dues. Learned counsel for the respondent no. 1/bank states that the mortgaged property has already been put to auction. The tenders were opened on 09.03.2011. The highest bid of ? 2.45 crores is over the reserve price and 15 days time has been granted as per the direction of the DRT for the party to make the deposit, if so chooses. WP(C) 1969/2011 Page 4 of 5 We find no illegality or perversity in the impugned order of the DRAT so as to exercise jurisdiction under Article 226 of the Constitution of India. The writ petition and the application stand dismissed with cost quantified at ? 10,000/- against the petitioner in favour of respondent no. 1. SANJAY KISHAN KAUL, J. MARCH 23, 2011 RAJIV SHAKDHER, J. kk WP(C) 1969/2011 Page 5 of 5