AI Structured Summary
Not yet generated for this judgment
Judgment
Brijesh Sethi, Chairperson
Misc. Appeal No. 76/2022
Vide this order I shall dispose of the present appeal filed against the order of Ld. DRT dated 17.05.2022, vide which Ld. DRT has declined to grant any interim relief and refused to stay the order dated 20.04.2022 passed by the Ld. CMM, South East, Saket Courts, Delhi and from restraining the bank from taking physical possession of premises i.e. Flat no. 58, first Floor, Kailash Hills, East of Kailash, New Delhi-110065 (hereinafter referred to as “property in question”). For ready reference, the impugned order dated 17.05.2022 is quoted below:-
“This matter is taken up by this Tribunal through video conferencing.
This matter has been taken up in view of the Order of the Hon'ble High Court of Delhi passed W.P. (C) 3668/2021) vide which the direction was given that, in case appointment of the Presiding Officer of three DRTs in Delhi do not materialize by 31.12.2021, the arrangement envisaged for the notification dated 13.12.2021 shall continue to operate till such appointment are being made.
I.A. no.907/2022.
It is submitted by the Ld. counsel for the respondent bank that no bid has been received by the respondent bank in the auction, which is scheduled for tomorrow i.e. 18.05.2022.
In the light of above submission, the present application becomes infractuous and accordingly, the same is hereby dismissed having becomes infractuous.
I.A. no.1036/2022.
The present application has been filed by the applicant praying therein to restrain the respondent bank / court receiver from taking physical possession of the property being flat No. 58, First Floor, Kailash Hills, East of Kailash, New Delhi-110065 (hereinafter referred as the property in question) on 17.05.2022.
It has been submitted on behalf of the applicants that the applicants are bona fide purchasers of a Flat whose symbolic possession has been taken by the Respondent No.1 Bank on 11.11.2021 u/s 13(4) of the SARFAESI Act and it is the Applicant's case that this notice has been issued in an arbitrary and illegal manner and deserves to be set aside for being illegal, invalid and void ab initio, however, the Applicant family is currently in possession of the Flat, their sole property, impugned action of SBI u/s 13(4) of SARFAESI Act has put them at the risk of being thrown on the streets and if dispossessed, a family of a widower senior citizen, an unmarried young woman and a young couple with a 1-1/2 years old daughter will have nowhere else to go. It has further been submitted that Applicant Amit Sharma and his late mother Mrs. Rita Sharma entered into an Agreement to Sell dated 29.07.2015 with Respondent No.2 to buy a flat No. 58, First Floor, Kailash Hills, East of Kailash, New Delhi for Rs.1,32,50,000/- and admittedly, prior to execution of Agreement to Sell, Applicants had availed home loan of Rs.64 lacs and paid the earnest money of Rs.65,01,000/ through cheques and cash. It has further been submitted that the respondent no.2 kept delaying execution of registered Sale Deed but successfully misled the Applicants to not doubt her by putting them in possession of the said property in question and the respondent no.2 extended the date of execution of Sale Deed vide Affidavit of 03.08.2017 and Agreement to Sell dated 29.03.2019 but never executed the Sale Deed and flat No. 58, First Floor, Kailash Hills, East of Kailash, New Delhi that in the meantime, without disclosing to the Applicants, the respondent no.2 mortgaged the said Flat with Respondent No.1 Bank and when the delay became inordinate, Applicants lodged FIR No.44 of 2021 and when respondent no.2 sought anticipatory bail in this FIR, the Delhi Police filed its reply opposing the bail from which, the Applicants learnt for the first time that in the year 2016, respondent no.2 had mortgaged the said Flat with SBI and the SBI has taken symbolic possession of the Flat and pasted notice dated 11.11.2021 u/s 13(4) of the SARFAESI Act. It has further been submitted that as per the reply of Delhi Police, the purported mortgage was created long ago but neither SBI nor respondent no.2 ever brought the fact of this mortgage to the notice of the Central Registry and as such, there is blatant violation of Section 23 of the SARFAESI Act and Rule 4 and 5 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Rules, 2011 and even no prior notice of any kind was ever given to the Applicants and Applicants are essentially victims of the mala fide and dishonest acts of respondent no.2 who always suppressed the factum of mortgage and exposed the Applicants and their family to be thrown on the streets for no fault of theirs and on reading Delhi Police's reply and the impugned notice together, it becomes clear that not only did respondent no.2 mortgage the Flat with SBI without informing the Applicants, but respondent no.2 had mortgaged several assets in addition to the Flat with SBI and as such, when other properties are still mortgaged with SBI and the Flat is not the primary secured asset, SBI can also proceed first against other properties and or for that matter, proceed against the guarantors u/s 13(11) of the SARFAESI Act. It has further been submitted that whether SBI conducted proper verification of the Flat before creating mortgage on it is doubtful and if it did get verification done, then it must have known that Applicants were in possession of the property and viewed thus, not serving the Applicants with copy of notice u/s 13(2) of SARFAESI Act resulted in robbing them of a fair chance to make a representation u/s 13(3-A) of the SARFAESI Act and assuming such verification was not done, that renders the mortgage of the Flat itself doubtful and in any event, SBI being a public sector bank has acted negligently and jeopardized public money. Accordingly, it has been prayed for restraining the respondent bank / court receiver from taking physical possession of the property in question on 17.05.2022.
On the other hand, Ld. counsel for the respondent bank has vehemently opposed the submission of the Ld. counsel for the applicant. He further submitted that the loan was facility was granted to the borrower and on 22.05.2013 the property in question was mortgaged with the respondent bank by way of deposit of title documents, which was also registered in CERSAI on 22.05.2013. He further submitted that the symbolic possession notice was published in two newspapers on 15.11.2021 and the demand notice was issued on 03.09.2021 thereby demanding the amount of Rs.2,93,05,577.57. He further submitted that after declaring the account as NPA on 29.05.2021, the borrower / mortgagor / guarantor has not cleared the dues of the respondent bank. Accordingly, it has been prayed for rejection of the interim prayer of the applicant.
Heard the rival contentions of both the parties and perused the records.
In the present matter, both the applicant as well as respondent bank are claiming their respective charge over the property in question and the applicant is claiming as the owner of the property in question on the basis of unregistered agreement to sell dated 29.07.2015, whereas the respondent bank is claiming that the property in question was mortgaged with them on 21.05.2013 by their borrowers/mortgagors against the sanction of the loan facility of Rs.275.00 lakhs and even the property in question is also registered with CERSAI on 21.05.2013.Apparently, there is default on the part of the borrower in paying the dues of the respondent bank and as per the respondent bank, notices under Section 13 (2) and 13(4) of the SARFAESI Act have been duly served upon the borrower/mortgagor/guarantor through all modes and after declaration of the account as NPA, the borrower / guarantor has not cleared the dues of the respondent FI till date.
In the above facts and circumstances of the case, this Tribunal is of the view that the respondent bank is having prior charge over the property in question and the applicant has failed to point out any illegality or irregularity in the measures taken by the respondent FI under the SARFAESI Act. Apart that, there is inter-se dispute between the applicant and the respondent no.2 and the respondent bank has nothing to do with their dispute. Thus, prima facie no case is exists in favour of the S. applicant for granting interim relief, accordingly, the prayer of the S. applicant for restraining the respondent bank from taking physical possession of the property in question, which is scheduled for tomorrow i.e. 18.05.2022, stands rejected.
List this case on 21.06.2022 before the Ld.
Registrar for completion of pleadings.”
Ld. counsel for the appellants has filed the present appeal on the ground that appellant no.1 is the bonafide purchaser of the property in question vide Agreement to Sell dated 29.07.2015 for a sum of Rs. 1,32,50,000/-. It is submitted that appellant no.1 has already paid a sum of Rs. 65,01,000/- to borrower i.e. respondent no.2 as earnest money and thereby created a charge under Section 55 (6)(b) of the Transfer of Property Act in his favour.
It is next submitted by Ld. Counsel for appellants that borrower/ respondent no.2 did not execute the registered sale Deed in respect of property in question in spite of repeated reminders. Therefore, an FIR no. 44/2021 was got registered against her i.e. borrower/ respondent no.2 under Section 420, 120-B of IPC. However, respondent no.2 obtained anticipatory bail from the Court of Ld. ASJ-03, Saket Courts, Delhi. Thereafter, appellant no.1 has filed an application for cancellation of anticipatory bail and has also filed a suit for specific performance and mandatory injunction under Section 56 of the transfer of Property Act, 1882 impleading respondent no.1 / Bank also.
It is further submitted that on 11.11.2021, SBI/ respondent no.1 pasted a notice under Section 13 (4) of SARFAESI Act outside the property in question for taking its physical possession. It is submitted that at that time appellants came to know that the property in question was mortgaged with the Bank. This fact was never disclosed by the respondent no.2 to the appellant no.1.
It is further submitted that on 26.11.2021, appellants assailed the notice dated 11.11.2021 issued under Section 13 (4) of SARFAESI Act, however, no interim relief was granted to them.
It is further submitted by Ld. counsel for the appellants that while passing the impugned order, Ld. DRT has not considered the fact that respondent no.1 Bank was well aware that the possession of the property in question was with the appellants since 2015. It is further submitted that Status Report filed by Delhi Police before the Ld. ASJ shows that the property in question was mortgaged on 12.07.2016 i.e. after the agreement to Sell dated 29.07.2015.
It is next submitted that the Ld. CMM has passed the order on the application under Section 14 (1) SARFAESI on 20.04.2022, whreas the application was filed on 04.12.2021. Since as per Section 14 of SARFAESI Act, the Ld. CMM was duty bound to pass the order within 60 days, the order is bad in the eyes of law.
It is, thus, prayed that the impugned order passed by the Ld. DRT in IA no. 1026/2022 be set aside, in the interest of justice.
The Ld. Counsel for the appellants has also relied upon the following judgments in support of his contentions:
State of Punjab & Ors. vs. Shreyans Industries Limited & Ors., (2016) Supreme Court Cases 769.
Videocon Properties Ltd. Vs. Dr. Bhalchandra Laboratories & Ors., (2004) 3 Supreme Court Cases 711.
S.P. Chengalvaraya Naidu (Dead) by LRs vs. Jagannath (Dead) by LRs & Ors., (1994) 1 Supreme Court Cases 1
Vipen Kumar Parwanda vs. State, 2010 SCC OnLIne Del 2638
C. Bright vs. District Collector & Ors., (2021) 2 Supreme Court Cases 392
Asgar S. Patel & Ors. vs. Union of India & Ors., (2000) 5 Supreme Court Cases 311
Ld. counsel for the respondent no.1/ Bank, on the other hand has vehemently opposed the present appeal and submitted that there is no illegality in the order passed by the Ld. DRT. There is inter se dispute between the appellants and respondent no.2 and respondent no.1 Bank has nothing to do with the same.
It is submitted that the property in question was duly mortgaged in favour of the Bank on 21.05.2013. The said mortgage was duly registered with the Bank as security with CERSAI on 18.06.2014.
It is further submitted that it is clear from the Order of Ld. ASJ-03, Saket Courts, dated 09.09.2021 that the complainants were aware of the fact that property in question was mortgaged. In the CRL. M.C. 2531/2021 before the Hon’ble High Court, the appellants have themselves submitted that they came to knowlater on that the property in question was already mortgaged with the respondent no.1 Bank.
It is further submitted that the appellants are claiming their right on the property in question on the basis of unregistered Agreement to Sale which is against the Judgment of Hon’ble Supreme Court in SLP © 13917 of 2009 Suraj Lamp & Industries (P) Ltd. Vs. State of Haryana & others, 11th October, 2011.
It is submitted that Borrowers were called upon on 31.08.2021 to repay the outstanding amount of Rs. 2,93,05,577.57/- within 60 days from the date of receipt of notice and since no payment was made by the Borrowers, the respondent no.1 Bank has taken the possession of the property in question u/s. 13 (4) of the SARFAESI Act on 11.11.2021.
Ld. Counsel for the respondent no.1 further submitted that if the Ld. CMM has not passed the order within 60 days of the receipt of the application under Section 14 of the SARFAESI Act, it becomes functus Officio as per the judgment of Hon’ble Supreme Court in the matter titled C. Bright Vs. The District Collector & Ors. in Civil Appeal no. 3441 of 2020, dated 5th November, 2020.
I have considered the rival submissions and gone through the record carefully.
Perusal of the record clearly reveals that the property was mortgaged with the bank on 21.05.2013 and was registered with the CERSAI on 18. 06.2014. The learned counsel for the appellants has relied upon the status report filed before the learned ASJ and before the Hon’ble High Court by the police officials. In the opinion of this Tribunal, police reports are not conclusive proof of the fact as to when the property was mortgaged with the bank. More so when there is a document from CERSAI which categorically reveals that the property was mortgaged on 21.05.2013 and was registered with the CERSAI on 18.06.2014. It is also not in dispute that the appellants have also filed a suit for specific performance and mandatory injunction against the respondent no.2. However, lis between the parties does not affect the rights of the Bank as it has nothing to do with the dues to be paid to the bank.
I have also gone through the authorities cited by the Ld. counsel for the appellants. There is no quarrel with the propositions laid down in those judgments. However, these judgments do not come to the rescue of the appellants. So far as judgment of C. Bright vs. District Collector & Ors.(supra) is concerned, it clearly contemplates that the District Magistrate does not become functus officio after 60 days of receipt of the application moved under the said section 14 of the SARFESI Act and the Hon’ble Court has thus clarified the fact that inability to take possession within time limit does not render the District Magistrate functus officio and, therefore, the contention of the learned counsel for the appellants that the order passed by the District Magistrate after 60 days is bad in the eyes of the law and cannot be accepted.
Thus, since the agreement to sell which the appellants have entered into with respondent no.2 is dated 29.07.2015 and is an unregistered document and is also subsequent to the creation of mortgage on 21.05.2013, the respondent bank clearly has a prior charge over the property in question.
In view of the above discussions, this Tribunal is of the opinion that there is no illegality or irregularity in the order dated 17.05.2022 passed by the learned DRT. The present appeal is, therefore, dismissed.