Review Application No. 5 of 2005. Case: Pandurang Vs State Bank of Hyderabad and Anr.. Nagpur Debt Recovery Tribunals

Case NumberReview Application No. 5 of 2005
Party NamePandurang Vs State Bank of Hyderabad and Anr.
CounselFor Appellant: A.N. Dharkar, Adv. and For Respondents: M.R. Joharapurkar, Adv. for Respondent No. 1
JudgesK.J. Paratwar, Presiding Officer
IssueSecuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 13(2) and 13(4)
CitationI (2006) BC 59
Judgement DateSeptember 02, 2005
CourtNagpur Debt Recovery Tribunals

Judgment:

K.J. Paratwar, Presiding Officer

  1. Being aggrieved by the dismissal of S. A. No. 1/2005, the applicant has filed this application for review of the judgment passed by this Tribunal on 6th May, 2005.

  2. The Securitisation application (Appeal) was directed against respondent Nos. 1/2's taking symbolic possession under Section 13(4) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, (SRFAESI Act) of Plot No. 9 M.H. 3388 Mouza Khamla, Nagpur. In the S.A., the applicant had challenged creation of equitable mortgage by contending that he had not given power of attorney in favour of his son who had allegedly deposited title deeds on the strength of purported power of attorney, and thus created equitable mortgage. The power of attorney was by way of caution revoked by letter dated 27.3.2002. The receipt of notice under Section 13(2) of SRFAESI Act was also denied. The power, in any case, at best empowered the applicant's son to stand as guarantor but did not cover the power to create mortgage. The other ground in the S.A. was that the memorandum of equitable mortgage required registration. The document required registration since on the same date (21.5.2002) the mortgagor had given a letter to the Bank confirming creation of mortgage.

  3. This Tribunal, by the impugned judgment, while disallowing the S.A. held that the appellant was having knowledge of notice under Section 13(2) of SRFAESI Act; that he had given power of attorney in favour of his son pursuant to which guarantee was executed and mortgage was created. The Tribunal also held that the document was merely memorandum and required no registration.

  4. The ground of review application is that this Tribunal had failed to appreciate power of attorney and that, at best the applicant had only empowered the attorney to stand as guarantor and there was no power to create mortgage. Further ground is that this Tribunal did not properly consider judgment in the matter between United Bank of India v. Lekharam Sonaram AIR 1965 SC 1591, in which has inter alia held that if the memorandum and other correspondence such as the letter in this question are of the same date and form integral part of the transaction, registration is required. The judgment is sought to be reviewed on said grounds.

  5. Vide reply at Ex. 8, the respondent has at the outset contended that there is no error apparent on the face of the record. Therefore, the review petition is...

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