Securitisation Application No. 5 of 2004. Case: Kushal N. Aggarwal Vs Saraswat Co-operative Bank Ltd.. Mumbai Debt Recovery Tribunals

Case NumberSecuritisation Application No. 5 of 2004
Party NameKushal N. Aggarwal Vs Saraswat Co-operative Bank Ltd.
CounselFor Appellant: M.V. Thakkar, Adv. i/b., Dave and Co. and For Respondents: Vilas Naik, Adv.
JudgesK.J. Paratwar, Presiding Officer
IssueSecuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 17(1)
Citation(2005) II BC 7
Judgement DateJanuary 03, 2005
CourtMumbai Debt Recovery Tribunals

Judgment:

K.J. Paratwar, Presiding Officer

  1. This Application under Section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Securitisation Act') pertains to Bungalow No. 4A, Gulab View Bungalow, Ground Floor, Near Basant Cinema, Mihishad Co-operative Housing Society Ltd., Dr. C.P.G. Road, Chembur, Mumbai-400074.

  2. The applicant claims to be owner of the property having got it by registered Gift Deed dated 26.12.2002 from his father Mr. Narinder Pal Aggarwal, borrower of the respondent. The Share Certificate No. 36 bearing distinctive Nos. 176 to 180 pertaining to the said property (which is the ground floor) stands in the name of the applicant. Mr. N.P. Aggarwal had purchased it from his brother Mr. Bipin Chandra Aggarwal on 7.5.1994 under an agreement of even date. The applicant has neither borrowed any money from the respondent nor stood as mortgagor let alone in respect of the property in question. Yet, on 23.11.2004 the respondent pasted notice outside the property addressed to M/s. Narendrajay Metal Converters Ltd. and Narinder Pal Aggarwal threatening to take the possession on 30.11.2004 claiming that on the ground that the entire Bungalow was mortgaged.

  3. The applicant has then set out in para No. 5.2(g) several facts about the litigation between the Bank and Narinder Pal Aggarwal in an attempt to show that the mortgage allegedly created by Narinder Pal Aggarwal could not have been created. But, it is unnecessary to state those facts since they are not germane to the controversy in the matter. Suffice it to say that in the grounds of application, the contention is that the impugned action is bad in law because the property in question belonging to the applicant is not the secured asset of the Bank and that it does not belong to the Borrower.

  4. By reply in the nature of affidavit of Mr. A.K. Aggarwal (Exh. 28) it is inter alia contended that this application is abuse of process. Earlier, the applicant's father had filed appeal No. 71 of 2004 which came to be rejected by this Tribunal by judgment dated 9.11.2004 on the ground that it was premature and misconceived. It is stated that entire Bungalow No. 4 having been mortgaged by the applicant's father Narinder Pal Aggarwal is the respondent's security. The application is said to be untenable since on the applicant's own contention is that the possession is yet not taken by the respondent. The...

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