Securitisation Application No. 12 of 2006. Case: Sau Kondabai Kashinath Rokde Vs Mahanagar Co-operative Bank Ltd.. Mumbai Debt Recovery Tribunals

Case NumberSecuritisation Application No. 12 of 2006
CounselFor Appellant: Kishore Tembe, Adv. and For Respondents: B.G. Vaidya, Adv.
JudgesK.J. Paratwar, Presiding Officer
IssueSecuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 13(2), 13(4) and 17
CitationIV (2006) BC 38
Judgement DateApril 10, 2006
CourtMumbai Debt Recovery Tribunals


K.J. Paratwar, Presiding Officer

  1. This application under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SRFAESI Act) relates to Flat No. G-A/12, admeasuring 815 sq. ft. Second Floor, Gunsagar Nagar, Kalwa, Thane of which the respondent Bank took possession on 12.2.2006 under Section 13(4) of said Act.

  2. The applicant's short case is that she had never created mortgage of flat with the respondent. She claims to be in possession of the title deeds namely xerox copy of agreement of sale dated 3.6.1998 (original still pending registration), share certificate and allied documents. Yet, the respondent had in dispute No. CC-III/670 of 1992 against her and her husband (admittedly the Bank's Borrower) falsely claimed that the flat was its mortgaged security. The alleged memorandum of mortgage relied upon by the respondent Bank in said proceedings does not give description of the property or the title deeds allegedly deposited for creating the mortgage. Thus, the flat is not the respondent's secured assets. That apart, the respondent did not issue notice under Section 13(2) of SARFAESI Act before taking forcible possession. The impugned action therefore is said to be bad in law and is sought to be struck down with further direction to return the possession. The applicant in fact has also sought compensation to the tune of Rs. 10 lakh.

  3. The respondent by reply (Exh. 10) in the letter of affidavit of Mr. B.G. Thube has stated that in 1998, it had sanctioned to the applicant's husband loan of Rs. 4.50 lakh inter alia against mortgaged flat. It is stated that the property was got valued, permission to create mortgage was obtained from the builder Chhadva Construction Company. In fact, memorandum about deposit of title deeds was also created. Notice under Section 13(2) is said to have been issued on 16.6.2003. The applicant however did not respond to the notice and did not make payment as demanded therein. The respondent therefore was justified in taking possession.

  4. I have heard arguments of learned Counsel representing the rival parties. I have gone through the copies of the documents to which my attention was invited by the learned Counsel.

  5. One of the grounds of the application of non-issuance of notice under Section 13(2) of SRFAESI Act is devoid of merit. The respondent Bank has produced a copy of notice dated 16.6.2003 under Section 13(2) (Exh. 12), original...

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