Savithri Antharjanam v. Indian Overseas Bank & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934** **WP(C).No. 22542 of 2007 (H) ---------------------------** **OA.121/2002 of DEBT RECOVERY TRIBUNAL, ERNAKULAM -----------------** ## **PETITIONER:** ## **----------** **SAVITHRI ANTHARJANAM, AGED 57, W/O.LATE SRI.VASUDEVAN NAMBOODIRI, AIRATTUMANA KUNNAKKAL P.O., MOOVATTUPUZHA.** **BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENTS:** **-----------** **1. INDIAN OVERSEAS BANK, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS CHIEF MANAGER.** **2. THE DEBT RECOVERY TRIBUNAL, ERNAKULAM, REPRESENTED BY ITS REGISTRAR.** **3. THE SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM.** **4. STATE OF KERALA REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.** **ADDL.R5 & R6 IMPLEADED** **----------------------** **ADDL.R5. MR.KOYAKKUTTY P.A., S/O.P.K.ADIMAKKUNJU, PROPRIETOR, BISMI MARINE EXPORTS, PALLURUTHY, COCHIN 6.** **ADDL.R6. P.ANITHA, W/O.P.CHANDRA MOHAN ELAYATH, KAITHAVALAPPIL HOUSE, MAMANGALAM P.O., ERNAKULAM P.O., ERNAKULAM, ARE IMPLEADED AS ADDITIONAL RESPONDENTS AS PER RRDER DATED 26.9.2007 IN WC 22542/2007.** **VK** **WP(C).No. 22542 of 2007 (H)** ## **---------------------------** **ADDL.R7 & 8 IMPLEADED** **---------------------** **ADDL.R7. THE ADDITIONAL DIRECTOR GENERAL OF POLICE (SOUTH ZONE), THIRUVANANTHAPURAM.** **ADDL.R8. THE SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM; ARE IMLEADED AS ADDL.R7 AND R8, AS PER ORDER DATED 7.11.07 IN WPC 22542/07.** **BY ADV. SRI.V.PHILIP MATHEW BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) BY ADV. GOVERNMENT PLEADER BY ADV. SRI.N.K.MOHANLAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 5.6.2012, THE COURT ON 10-08-2012 DELIVERED THE FOLLOWING:** **VK** ## **WP(C).No. 22542 of 2007 (H)** **---------------------------** ## **APPENDIX** **--------** ## **PETITIONER'S EXHIBITS** **---------------------** **EXT.P1 COPY OF THE ADVERTISEMENT PUBLISHED IN MATHRUBHOOMI DAILY DATED 1.4.1998.** **EXT.P2.COPY OF THE NOTICE ISSUED TO THE PETITIONER DATED 10.3.2000** **EXT.P3.COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 2.8.2001.** **EXT.P4. COPY OF THE FIRST INFORMATION REPORT DATED 13.9.2001.** **EXT.P5. COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 6.9.2002.** **EXT.P6. COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN, INDIAN OVERSEAS BANK DATED 26.2.2007.** ## **RESPONDENT'S EXHIBITS** **---------------------** **EXT.R1(A). COPY OF THE O.A. N0.121/2002 FILED BEFORE DEBTS RECOVERY TRIBUNAL, ERNAKULAM.** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. **W.P. © No. 22542 OF 2007** ......................................................................... **Dated this the 10[th] August, 2012** ## **J U D G M E N T** Will a Power of Attorney purportedly executed by the petitioner, as fabricated by the Addl. 6[th] respondent by way of impersonation and other means; and the alleged mortgage created on the strength of such Power of Attorney by depositing the title deeds of the petitioner with the respondent Bank for securing a loan of Rs.38 lakhs availed by the Addl. 5[th] respondent, create any rights or interest over the property in favour of the Bank? Can Ext.P5 ex parte order obtained in the O.A. filed by the Bank before the DRT, Ernakulam make the transaction valid, so as to enable the Bank to realise the amounts due from the borrower by proceeding against such property ? Whether the intervention made by this Court invoking the power under Article 226 of the Constitution of India, passing different interim orders at different points of time, making the investigating authorities to apprehend the accused concerned, **2** ## **W.P. © No. 22542 OF 2007** trace out the records and file the charge sheet should be given a 'go-bye', accepting the contention of the first respondent Bank that the petitioner has not chosen to avail the alternate remedy by approaching the Tribunal? These are the main questions to be considered in this writ petition. 2. The petitioner is a widow, living alone and is the owner of the property having an extent of 1.98 Acres in Valakom Village of Muvattupuzha Taluk in Ernakulam District, having obtained the same by virtue of the Partition Deed No.197 of 23.01.1953 and the Release Deed No.424 of 06.11.1969, both registered in the SRO Muvattupuzha , making out a living on the meagre income derived from the property. It is said that she lost the title deeds/ prior deeds and such other documents, which made her to give a notification in 'Mathrubhumi' daily dated 01.04.1998, as borne by Ext.P1, alerting all concerned in this regard . While so, the petitioner was served with Ext. P2 Lawyer's notice dated 10.03.2000, issued at the instance of the first respondent Bank, stating that the petitioner had stood as a surety for a loan of Rs.38 lakhs availed by the borrower M/s. Bismal Marine **W.P. © No. 22542 OF 2007** **3** Exports, Palluruthy owned by the additional 5[th] respondent and demanded satisfaction of the due amount, lest the collateral security offered by the petitioner should be proceeded against. Immediately, she contacted the Bank pointing out that she had never executed any Power of Attorney, nor had come to the Bank executing any document creating any security interest or mortgage over the property. It is stated that the authorities of the Bank sought for time to verify the position and find out the truth. Later, the Chief Manager of the Bank had visited the petitioner at her home and elicited the details. As suggested, a written complaint was given by the petitioner on 02.08.2001 to the Chief Manager, as borne by Ext.P3. It was accordingly, that the Chief Manager approached the Police by filing a complaint leading to registration of Crime No.695 of 2001 of the Central Police Station, Ernakulam, as borne by Ext.P4 FIR. 3. Meanwhile, the first respondent Bank filed O.A. 121 of 2002 before the second respondent /Tribunal for realisation of the due amount, showing the 5[th] and 6[th] respondents as the first and second defendants and the petitioner as the third defendant . **W.P. © No. 22542 OF 2007** **4** According to the petitioner, she was assured by the Bank authorities that it was only a formal proceeding and that steps were being pursued against the real culprits , i.e., additional 5[th] and 6[th] respondents herein. However, to the shock and surprise of the petitioner, she came to know of Ext.P5 ex parte verdict passed by the second respondent/Tribunal, passing a decree in terms of the O.A., enabling the Bank to proceed against the property of the petitioner. After filing Ext.P6 representation before the Chairman of the Bank on 26.02.2007, the petitioner approached this Court by filing this writ petition, which was admitted, also intercepting the sale scheduled on 24-7-2007. 4. The first respondent Bank has filed a counter affidavit, seeking to sustain Ext. P5 and disputing the averments as to the alleged assurance given from the part of the Bank, simultaneously pointing out that the petitioner is having other alternate remedy, which is stated as not availed of. 5. In the course of the proceedings, taking note of the specific contention raised by the petitioner that, despite lapse of several years, the investigation in the Crime is simply kept in **W.P. © No. 22542 OF 2007** **5** cold storage, making the proceedings a mockery of, this Court intervened and called for a report from different corners. As per the interim order dated 15.10.2007, the final report in Crime No.695 of 2001 of the Central Police Station and accompanying documents were directed to be produced. The learned Government Pleader filed a statement dated 05.11.2007 pointing out that, though the investigation was completed and final report was submitted as early as in October 2003, it could not be traced out till date. Particulars of the officers concerned, who were in charge of investigation, were also given. 6. After considering the various aspects involved, this Court passed a detailed interim order on 06.11.2007, with regard to the missing of the charge sheet, also making it clear that enforcement of the recovery certificate as against the petitioner and her properties shall stand suspended and that the Bank will be at liberty to proceed against the other defendants named in the recovery certificate. The Addl. Director General of Police (impleaded as the additional 7[th] respondent) was directed to look into the matter as to the missing of the charge sheet and file a **6** ## **W.P. © No. 22542 OF 2007** report before this Court, as to the further course of action, containing all the details regarding the arrest, bail etc., of all the accused within three weeks. The next day, i.e. on 07.11.2007, in continuation of the order dated 06.11.2007, this Court deprecated the stand of the second respondent/DRT in having simply concluded the proceedings by passing Ext.P5 ex parte order, despite the pendency of the serious crime mentioned in the O.A. (paragraph 4 of the interim order). Referring to the report of the CJM, that no charge sheet was available on record, the same having been returned on 01.01.2004 to rectify the defects and the alleged missing of the charge sheet thereafter from the records of the Police Station, it was brought to the notice of the Court by the Sub Inspector of Police and the Asst. S.I. of Police who appeared in person, that the charge sheet had been traced out with the entire CD file on the previous evening. The deplorable plight of the state of affairs was described by this Court as contained in paragraph 12 and 13 of the interim order dated 07.11.2007, which are extracted below: **W.P. © No. 22542 OF 2007** **7** _”12. The charge sheet returned by the CJMS'sCourt on 1-1-2004 , remains without re-presentation; without rectification of defects and was apparently lying in the residence of Chandy, a Head Constable now attached to the Muvattupuzha Police Station. The charge sheet is one that was returned by the CJM's Court for rectification and representation. I wonder as to what is the credibility of such police personnel? I still wonder as to what could be the fate of the Indian Criminal Justice System; of the Police; of the Administration; of the Executive and of the other different limbs of governance, if a final report, which is a charge sheet that was returned by the competent criminal court on 1-1-2004, remains to be represented after rectification of defects even in November, 2007. The most callous and indifferent manner in which this case has been dealt with, discloses that this could not be a mere case of inability, inefficiency or incapability . How was a Head Constable, even after being transferred out of a_ **8** ## **W.P. © No. 22542 OF 2007** _police station, able to continue to retain with him, in his personal custody, in his residence, the CD file of a case? What was the importance given to the complaint by a bank regarding manipulation in the matter of availing a loan and which complaint, on investigation, has unearthed the commission of crimes, which are stated to have been enumerated as those punishable under Sections 468, 471 and 420 read with Section 34 IPC? I am not saying anything on the final report as such. I have also not looked into the CD file to notice whether the investigation had gone into all the necessary angles, as may be required while dealing with a bank transaction. But what is more shocking and surprising is the manner in which such a criminal case has been essentially taken away from the realms of prosecutions and the zone of the judicial function of adjudication and imposition of penalty; if the accused persons are found guilty, in accordance with law. Who is master-mind behind the missing of file?_ _Where is Koyakkutty, the most fortunate,_ **9** ## **W.P. © No. 22542 OF 2007** _who had essentially swallowed the funds of the bank, left without repaying and remains untraceable? Was the loan granted to an unidentifiable person? Was there any investigation in that line? Still further, if Koyakkutty is traceable, who managed the keeping away of the files from being placed before the CJM's Court; that too, for such a long spell of time? As minuted by me yesterday, Njanadas, the last among the investigating officers who dealt with the case, was transferred and is now Sub Inspector of Police, Neyyattinkara. But for this writ petition, which alerted this Court and the excellent assistance given by the learned Government Pleader Smt. Smitha Sukumar and the prompt action of SI Francis Shelbi, to shovel up the hidden file, a criminal case with different dimensions would have been kept under cover, may be with an ulterior motive and a hidden agenda._ _13. The case in hand requires an immediate look by the higher up in the police administration, not only in the_ **W.P. © No. 22542 OF 2007** **10** _realm of an investigation but in the realm of discipline, as well as a second look even at the entire investigation file.”_ 7. Pursuant to the proceedings as above, the Addl. 7[th] respondent (Addl. DGP) filed a report dated 28.11.2007 before this Court explaining the effective steps taken to fix the accused, right from the recording of the FI statement on 13.09.2001 leading to registration of Crime No. 695 of 2001 under Section 468,471,420 and 34 of IPC of the Central Police Station, Ernakulam and other relevant aspects. The fact that the Addl. 6[th] respondent ( the first accused by name Anita) had fabricated the Power of Attorney of the petitioner herein, getting it registered at the SRO Maradu on 24.04.1998, the attestation by the Notary, by name Aliyar, at Aluva on 28.04.1998 on falsely putting the signature and thumb impression by Anitha-the I Accused, impersonating Savithri Antharjanam(the petitioner), production of the said Power of Attorney before the 1[st] respondent Bank with the title deeds of the petitioner as collateral security getting disbursement of the loan of Rs.38 lakhs applied for by the Addl. **W.P. © No. 22542 OF 2007** **11** 5[th] respondent (second accused by name Koyakutty) etc. have been specifically referred to in the report. Apart from the details of investigation such as causing the documents to be sent for examination at the Forensic Lab, Thiruvananthapuram, the report also details the irregularities and the omissions noticed in the investigation in paragraph 10. The missing of the charge sheet and the CD, the role played by the Head Constable by name Chandy (HC 6468) and the disciplinary action ordered against the concerned officers of the Police force in respect of the lapses revealed in the enquiry, have also been dealt with in the said report. The Additional 7[th] respondent has stated that the investigation has been completed and further steps are being taken to take the proceedings to a logical conclusion. In order to avoid loss/missing of case diaries at different stages, certain important suggestions were made by the Addl. DGP in paragraph '17' of the said report. Some other suggestions were also made in paragraph '18' to give necessary directions to all the subordinate courts in Kerala, to maintain efficiency and proper follow up, in dealing with acceptance/return of the charge sheet. **W.P. © No. 22542 OF 2007** **12** 8. After considering the said report, this Court passed another interim order on 29.11.2007 with regard to the suggestions made by the Addl. DGP. It has been observed in paragraphs '4' and '5' as follows: ..... _“4. The following are the suggestions made to ensure that the actions of the police officers are appropriately regulated:_ _i) SHOs should be made personally responsible for conducting court comparison of FIR Index Register with court records on a monthly basis and taking strict follow-up action to get the discrepancies sorted out in close liaison with the Court Superintendent._ _ii) Physical verifications of CD files of all cases reported from the year 2001 will be conducted in all the police stations by officers of the rank of CIs/ACs to ensure that all the CD files have actually reached the Courts and have been taken on file._ _Iii) SDPOs will conduct a physical checking of all pending CD files including_ **13** ## **W.P. © No. 22542 OF 2007** _UI cases. PT Cases, LP Cases on a quarterly basis.;_ _iv) The Crime No., CD pages and the date of last CD shall be noted by the Supervisory officers, namely CIS and DYSPs in the crime ledger maintained by them._ _v) A register showing the details of charges/final reports returned from the court should be maintained with data like date of receipt, name and designation of officer responsible for rectifying the defects, date of resubmission etc. and the entry will be rounded off only after the court has assigned the CC/ST number._ _vi) All SDPOs will verify the Crime Ledger maintained in their office with that of the CIs office and the FIR index of the Station to find out whether there is any discrepancy and correct it on a monthly basis._ _Vii) In case of a transfer of an Investigating Officer, proper handing over of CD files should be done and the SHO should personally verify the same and based on this only the NOC will be issued_ **W.P. © No. 22542 OF 2007** **14** _and the officer relieved of his charge. Viii) No officer should be allowed to take the CD File home under any circumstances. It should always be under the safe custody of the SHO/Station Writer._ _ix) Now that a Special drive has been launched as per the directions of the DGP to verify all the UI/Referred Cases/LP cases throughout the State, earnest efforts should be made to get the system right._ _A perusal of the entire report will show that the Additional DGP South Zone has placed the aforesaid recommendations after duly adverting to and considering the entire scenario in relation to the investigation of crimes and also in consultation with the appropriate officials. Hence, it is hereby directed that all police officials in the state shall strictly comply with the aforesaid 9, apart from the other directives that regulate them in the matter of investigation and submission of Case Diaries to the Courts. This order shall be communicated through the_ **W.P. © No. 22542 OF 2007** **15** _Director General of Police to all Police Stations for strict compliance._ _5. In so far as the suggestions made regarding the directions to subordinate courts is concerned, the said suggestions, as stated in the report, are as follows:_ _“i) The officers of the Court will return the defective charge sheets only under intimation to the SHO so that he is aware of it._ _ii) A responsible officer of the Subordinate Court shall invariably furnish a list of all pending cases to the SHO of the Police Station concerned on a monthly basis as it has been noticed that such a list is at times prepared by the SHO of the Police Station and countersigned by the court official._ _iii) The Court where the charge sheet/Final Report has been filed will assign CC/ST number immediately on receipt of the same after verifying that they are in order._ _These suggestions will gain the attention of the Registrar General of this Court and_ **W.P. © No. 22542 OF 2007** **16** _the Registrar (Subordinate Judiciary) for being taken up appropriately on the administrative side, for instructions, if needed.”_ 9. The factum of surrender of the Addl. 5[th] respondent before the Criminal Court and the remand to custody was recorded in paragraph '6', besides noting his presence on being produced before this Court on that day. The factum of constitution of the new team headed by the Asst. Commissioner of Police, Ernakulam for investigation of the crime, as putforth in the report of the Addl. DGP, has also been referred to in the said order. 10. During the course of hearing today, it is reported by the learned Government Pleader that the investigation has been completed and on submitting the final report, the case has been registered as a Calendar Case and that the trial is going on. This being the position, the second prayer in the writ petition, ie. to direct the third respondent to expedite the investigation in Crime No.695 of 2001 of Central Police Station, Ernakulam and to submit the charge sheet stands satisfied and no further orders **W.P. © No. 22542 OF 2007** **17** are warranted on this score. **11.** With regard to the other relief, as to the setting aside of ex parte order (Ext.P5) passed by the Tribunal, the only case projected by the first respondent Bank is that the petitioner cannot be termed as innocent, in so far as she has published/issued Ext.P1 notification in the 'Mathrubhumi' daily as to the missing of the documents, while she has stated in Ext.P3 representation given before the Bank that she was cheated by Anitha/Addl. 6[th] respondent - the first accused in the criminal case by taking away the documents from her. It is also pointed out that the petitioner was aware of this cheating, despite which she has not filed any criminal complaint against the culprit. It is also said that, but for the alleged approach made before the Bank, she did not even turn up before the Tribunal to contest the matter, despite the service of notice in the O.A. 12. Learned Counsel for the Bank asserts that the petitioner has already lost the right, if any, to proceed against the alleged fraud by virtue of the principles of acquiescence and that the Bank is entitled to proceed against the property. It is **18** ## **W.P. © No. 22542 OF 2007** also stated that, by virtue of alternate remedy available , it is not proper for this Court for making interference by invoking the power under Article 226 of the Constitution. The said submissions are sought to be resisted by the learned Counsel for the petitioner, referring to the course and events and the various interim orders passed by this Court, which alone helped to book the real culprits and to file the charge sheet after completing the investigation. 13. It is true that the petitioner did not turn up before the Tribunal, despite the service of notice in O.A. 121 of 2002 preferred by the Bank. But, the fact remains that she had contacted the officers of the Bank, who later went to her residence for making an enquiry as to the actual facts and figures. The contention of the petitioner with regard to the visit made by the Chief Manager of the Bank to the house of the petitioner has been denied by the first respondent in paragraph '6' of the counter affidavit dated 21.08.2007. But such visit stands conceded by the concerned Chief Manager, who gave the F.I. Statement before the Police on 13.09.2001, which led to **19** ## **W.P. © No. 22542 OF 2007** registration of the crime,which forms part of Ext.P4 F.I.R. The factual position in this regard is clearly reported by the addl: 7[th] respondent-Addl. DGP as well, in his report dated 28.11.2007. 14. It is also relevant to note that there is no case for the Bank or its officers before the police while giving the F1 Statement leading to Ext.P4 FIR, that the petitioner had any involvement or lapse, as now alleged, whereas the specific case projected by the Bank was against the Addl. 5[th] and 6[th] repondents who have been arrayed as 'second' and 'first' accused respectively, in the criminal case. Similarly, the first respondent Bank has clearly stated in paragraph 't' of Ext.R1(a) O.A. 121 of 2002 that they have already filed a criminal complaint against the concerned accused in the following terms: “ _When the repayment of the loans became irregular and defendants failed to honour their commitments, the officials of the applicant Bank called on the defendants. At that time the 2[nd] defendant made contradictory statement and untenable contentions which caused suspicious in the_ **W.P. © No. 22542 OF 2007** **20** _minds of officials that the defendants were attempting to cheat the bank. Thereupon the applicant bank filed a criminal complaint at the Central Police Station, Eranakulam and the same is registered as FIR No.695/01.”_ **15.** It has been held by the Apex Court and also by this Court on many an occasion that alternate remedy is not a bar for invoking the jurisdiction of this Court under Article 226 of the Constitution of India. The power vested under Article 226 is very wide and as made clear by the Apex Court it is wider than the power exercisable by the Apex Court, under Article 32. This, ofcourse, is intended to meet the ends of justice as the very Article, indicates and it is exercisable even against a 'private individual', if a public duty is cast upon such person and there is a failure. 16. Coming to the case in hand, it is to be noted that, but for the intervention made by this Court admitting this matter and calling for various reports from the CJM Court , Police and Addl. DGP, a serious crime would have got buried leaving the Addl. 5[th] ## **W.P. © No. 22542 OF 2007** ## **21** and 6[th] respondents go scot-free, enabling them to reap their fortunes, at the cost of the petitioner, who is an aged widow. 17. It also remains a fact that the alleged mortgage executed on the strength of the Power of Attorney purported to be executed by the petitioner, has now turned to be a bogus/fabricated document created by way of impersonation. There is no dispute for the Bank to the contrary, even in any slightest manner. The fabrication and impersonation effected by the Addl. 6[th] respondent and the documents created and produced before the Bank stands rather accepted by the Bank as well. The question is, whether such documents could be placed or relied upon to create any valid mortgage so as to proceed against the petitioner or her assets. 18. It has been held by the Apex Court in _**United India Insurance Co. Ltd vs. Rajendra Singh**_ (2000) 3 SCC 581 that fraud and justice do not co-exist. Even by the farthest stretch of imagination, it cannot be said that the fabricated Power of Attorney created by the Addl. 6[th] respondent and the deposit of the title deeds belonging to the petitioner before the Bank on the **22** ## **W.P. © No. 22542 OF 2007** strength of such power of attorney which has been brought into effect by way of 'impersonation' will confer vested right upon the Bank to proceed against the petitioner or her assets. It also remains a fact that the authorities of the Bank did not think it necessary to have enquired into or to verify the assets by conducting any spot inspection or by causing the genuineness of the Power of Attorney to be enquired into and satisfied, which otherwise would have avoided the unfortunate turn of events. The minor lapses, if at all any on the part of the petitioner, particularly in not turning up before the Tribunal ( presumably for having believed the officers of the Bank as to the steps being taken by them to set things right ) should not deter this Court from rising to the need of the hour/occasion for rendering justice. The interference made by this Court by admitting the matter and passing various interim orders alone have made the truth to come to a reality, by causing necessary steps to be taken and finalised by the police. This being the position, the contention of the first respondent Bank that no interference may be made, because of the availability of alternate remedy and the **23** ## **W.P. © No. 22542 OF 2007** so called lapses on the part of the petitioner, do not hold any water at all. 19. This Court finds that Ext.P5 order passed by the Tribunal is liable to be set aside and the matter is to be reconsidered by the Tribunal, if at all any further liability is to be fixed or to proceed against the petitioner. Since no challenge has been made against Ext.P5 by the Addl. 5[th] and 6[th] respondents (borrower and the first guarantor, who have been arrayed as the defendants 1 and 2 before the Tribunal), the liability already fixed against them will stand as it is and it is open for the Bank to proceed against them, as already made clear by this Court, as per the interim order dated 6-11-2007. 20. In the above facts and circumstances, Ext.P5 order is set aside and the matter is remitted back to the DRT, for reconsidering fixation of the liability, on the basis of the so called forged Power of Attorney and the alleged creation of the mortgage afresh, after giving an effective opportunity to the petitioner to raise sufficient pleadings. It will be open for the respondent Bank to produce necessary materials to show the **24** ## **W.P. © No. 22542 OF 2007** involvement of the petitioner as to the disputed transactions. The writ petition is allowed to the said extent. No cost. **P.R. RAMACHANDRA MENON, JUDGE.** lk