Hon'ble Judges/Coram:
D.M. Dharmadhikari and H.K. Sema JUDGMENT
H.K. Sema, J.
1. This appeal is directed against the judgment of the Bombay High Court dated 23-4-2003. The appeal has been heard at length by a Bench in which one of us was a Member, Sema, J and by an order dated 10-2-2004 reported as Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors., MANU/SC/0127/2004 : (2004)3SCC584 it was remitted to the Tribunal with the following directions in paragraphs 24 at Page SCC 587:
"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."
(Emphasis supplied)
2. Avoiding prolixity, but at the risk of repetition the directions were founded on the following facts:
The 1st appellant is the wife of the 5th respondent and the 2nd appellant is the wife of the 2nd respondent.
3. The respondent-bank extended loan facilities to the 6th and 7th respondents, M/s Bhojwani Hotels Pvt. Ltd. and Hotel Amir Pvt. Ltd., which are run by respondent Nos. 2 to 5 namely Dr. Laxmikant Rewachand Bhojwani, Mr. Sanjay Laxmikant Bhojwani, Mr. Romy Laxmikant Bhojwani and Mr. Vashdeo Rewachand Bhojwani. The loan facilities were to the extent of Rs. 22 crores in one case and Rs.3.75 crores in the other. Respondents 2 to 5 were also guarantors and some of the properties belonging to the parties have been mortgaged to the bank. Initially, Plot No. 38, Koregaon Park, Pune was also stated to have been mortgaged to the bank. It is now admitted by the respondent-bank that the said plot was not mortgaged to the bank.
4. As the loan had not been repaid, the respondent-bank filed a suit against 2nd and 7th respondents on 3.10.2000, OA No. 159-P of 2001 before the Debt Recovery Tribunal (hereinafter referred to as the DRT) for recovery of a sum of Rs.3.86 crores. The first respondent-bank also filed another suit against respondent nos. 2 to 6 and one M/s Progressive Land Development Corporation, OA No. 160-P of 2001 for recovery of a sum of Rs.27.5 crores. M/s Progressive Land Development Corporation is a partnership firm of which the appellants are partners, along with others. The DRT by an order dated 11-12-2000 ........