S.A. No. 16 of 2005. Case: Ashok Wamanrao Babhulkar (Patil) Vs Akola Janata Commercial Co-operative Bank Ltd. and Anr.. Nagpur Debt Recovery Tribunals
| Case Number | S.A. No. 16 of 2005 |
| Counsel | For Appellant: A.V. Bhide, Adv. and For Respondents: R.V. Shah, Adv. for Respondent No. 1 |
| Judges | K.J. Paratwar, Presiding Officer |
| Issue | Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 2, 13(2), 13(4), 17, 17(1), 17(2) to 17(4) and 34; Recovery of Debts Due to Banks and Financial Institutions Act, 1993 |
| Citation | I (2006) BC 34 |
| Judgement Date | October 06, 2005 |
| Court | Nagpur Debt Recovery Tribunals |
Judgment:
K.J. Paratwar, Presiding Officer
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This appeal (application) under Section 17 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SRFAESI Act) challenges the respondent No. 1 Bank's taking possession under Section 13(4) of SRFAESI Act of house premises being Plot No. 6, Nazul Sheet No. 39 D Situated at Yavatmal, Tal and Dist. Yavatmal admeasuring 11,550 sq. ft.
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The case of the applicant is that the notice of taking possession was affixed on the door of the house standing on the said plot stating that the Bank had taken possession of the plot but not mentioning anything about superstructure standing thereupon. There are, in fact, 6 rooms in possession of the applicant on the plot, remaining portion and superstructure being in possession of respondent No. 2 (the applicant's brother and tenants). The applicant contends that prior to the impugned notice he had served notice dated 30.3.2005 upon the respondent No. 1 Bank informing that the property in question was jointly owned by the applicant, respondent No. 2 and other LRs of their deceased father Mr. Wamanrao. As such, deceased Mr. Wamanrao could not have bequeathed the property to respondent No. 2. It was also pointed out that the respondent No. 2 did not have exclusive power and authority to mortgage the property. It had been brought to the notice of the Bank that the applicant had filed spl. civil suit for partition of the joint family property bearing No. 3/2005 in the Court of Civil Judge, Sr. Dn., Yavatmal.
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The Bank by reply (Ex. 8) refuted that the property was the property of late Mr. Wamanrao. It has contended that deceased Mr. Wamanrao being the sole owner had left behind a registered Will deed whereunder the respondent No. 2 became the owner thereof after death of Mr. Wamanrao. He had deposited title deeds of the property and thus created equitable mortgage for securing the loan of Rs. 7 lakh. Since amount was not paid despite demands and notice under Section 13(2) of SRFAESI Act was given demanding then dues of Rs. 5,48,854/-. As the payment was not made, possession of the property was taken. The civil suit is said to have been filed at the respondent No.2's instance. The application is sought to be dismissed on said grounds.
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I have heard arguments of learned Counsel representing the rival parties. I have gone through the relevant records.
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The applicant (appellant) herein is admittedly not the borrower which...
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