S.A. No. 11 of 2005. Case: Indian Oil Corporation Limited Vs Shikshak Sahakari Bank Limited and Ors.. Ranchi Debt Recovery Tribunals

Case Number:S.A. No. 11 of 2005
Party Name:Indian Oil Corporation Limited Vs Shikshak Sahakari Bank Limited and Ors.
Counsel:For Appellant: S.R. Deshpande, Adv. and For Respondents: Gharpure, Adv.
Judges:K.J. Paratwar, Presiding Officer
Issue:Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 13(2), 13(4), 17 and 17(1); Transfer of Property Act, 1882 - Section 65A
Citation:IV (2005) BC 50
Judgement Date:August 05, 2005
Court:Ranchi Debt Recovery Tribunals
 
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Judgment:

K.J. Paratwar, Presiding Officer

  1. This appeal under Section 17 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SRFAESI Act) relates to Field Survey Nos. 212 and 221 to the extent of 22500 sq. ft. situated at Mouza Khursapar, Tal. Katol, Distt. Nagpur.

  2. The respondent Bank gave notice under Section 13(2), SRFAESI Act to the borrower (respondent No. 3) calling upon it to pay amount in excess of Rs. 1 crore, copy of was given to the appellant herein. Since the notice was not complied, the respondent Bank took symbolic possession of the property on 5.11.2004 and actual possession in February, 2005.

  3. The appellant's contention is that it was in possession of the property as lessee on the basis of registered lease deed dated 20th June, 2003 at monthly lease of Rs. 5,000/-. It has, in fact, paid advance lease rentals to the Lessor-Respondent No. 3. The contention is that appellant's possession as lessee has to be protected. Therefore, taking possession by the respondent No. 1 Bank was illegal. Consequently, the possession needs to be restored. The other prayer is that the respondent No. 1 Bank cannot sell the property.

  4. Respondent Nos. 1/2 vide their reply has at the outset taken up plea of limitation. The facts about respondent No. 3's taking loan from the respondent No. 1 are set out which are unnecessary for the purpose of this application. The respondent No. 1 has contended that the property in question is its security, respondent No. 3 having created equitable mortgage by deposit of title deeds. It is contended that the respondent No. 3 had, in the term loan agreement, undertaken not to create any charge or transfer, etc. without the Bank's permission. The lease in favour of the appellant being in contravention of the clause, is said to be illegal. The application is sought to be disallowed on aforesaid grounds.

  5. The parties have filed on record xerox copies of lease deed, memorandum of mortgage and agreement of term loan.

  6. I have heard arguments of learned Counsel representing the rival parties.

  7. At the outset issue of limitation is taken up. Admittedly, the Bank (respondent No. 1) took symbolic possession of the property on 5.11.2004. Mr. Ghare, learned Counsel for respondent No. 1 has submitted that the application should have been filed within 45 days therefrom. In reply Mr. Deshpande, learned Counsel for the appellant has urged that his clients were...

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