Appeal No. 165 of 2015. Case: Union Bank of India Vs A.S. Services and Solutions and Ors.. Delhi DRAT DRAT (Delhi Debt Recovery Appellate Tribunals)
| Case Number | Appeal No. 165 of 2015 |
| Counsel | For Appellant: U.N. Singh, Advocate |
| Judges | P.K. Bhasin, J. (Chairperson) |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XVIII Rule 18; Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 - Section 19; Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 - Sections 13(2), 13(4), 14, 17(1); Transfer Of Property Act, 1882 - Section 48 |
| Judgement Date | November 23, 2016 |
| Court | Delhi DRAT DRAT (Delhi Debt Recovery Appellate Tribunals) |
Judgment:
P.K. Bhasin, J. (Chairperson)
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The appellant Bank is aggrieved by the final dated 4th March, 2015 passed by Mr. Ashish Kalia, the then Presiding Officer of Debts Recovery Tribunal-III, Delhi ('DRT' in short) while disposing of Original Application No. 86/2009 (O.A.) filed by appellant herein under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short 'RDDBFI Act') against the respondents herein to recover its money which it had advanced as loan during the year 2006 to respondent 1, a proprietorship Firm of respondent No. 2, and to secure which loan respondent No. 2 had mortgaged with the Bank his property in Indira Puram, Ghaziabad and his wife, respondent No. 3 herein, had also given her personal guarantee. From the impugned judgment as well as the record of the DRT in respect of O.A. No. 86/2009 what emerges is that on different dates in the year 2006 the appellant Bank had advanced some financial facilities to respondent No. 1 Firm and thereafter this respondent failed to re-pay the loan money to the Bank and its account was classified as Non-Performing. Asset. (NPA) in May, 2008 and then a notice dated 13th June, 2008 was given to it under Section 13(2) of SARFAESI Act demanding Rs. 28,06,238/- plus interest and upon its failure to clear the dues the Bank took recourse to its remedies under Sections 13(4) and 14 of the SARFAESI Act to recover its money by putting to sale the mortgaged property of the proprietor of this borrower Firm Sanjeev Singh. Then came to be filed S.A. No. 445/2008 under Section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) by respondent No. 4 before the DRT-III, Delhi in which he claimed that he had purchased the mortgaged property from respondent No. 2 herein in the year 2008 but at the time of selling the property to him the respondent No. 2 had not disclosed that it was mortgaged with the appellant Bank and regarding the original title deed/lease deed in his favour he had represented that it had been misplaced and will be given to him (respondent No. 4). However, subsequently the respondent No. 4 came to know that he had been defrauded by Sanjeev Singh and the Bank was threatening to sell the property which Sanjeev Singh had sold to him without disclosing that the same was already mortgaged with the appellant Bank.
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During the pendency the S.A. of respondent No. 4 (being S.A. No. 445/2008) the appellant Bank filed O.A. No. 86/2009 impleading the borrower Firm, its proprietor Sanjeev Singh as the mortgagor and his wife Archana Singh (respondent No. 3 herein, as a guarantor. Respondent No. 4 was impleaded since he was claiming to have purchased the mortgaged property from respondent No. 2 herein and the Bank also impleaded his brother, respondent No. 5 herein, also but it is not clear from the O.A. as well as the impugned judgment as to why he was impleaded as a defendant in the O.A.
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Respondents 1, 2 and 3 did not enter appearance in the O.A. despite service of notices on them. Respondents 4 and 5 filed a joint written statement claiming that Sanjeev Singh had sold the mortgaged property to respondent No. 4 in 2008 without disclosing to him that he had already mortgaged the same in favour of the appellant Bank herein.
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At one stage the O.A. of the Bank and the S.A. of respondent No. 4 came to be listed together before the DRT on every date of hearing and finally the S.A. as well as the O.A. were decided also on the same date i.e. 4.3.2015 though by separate judgments.
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During the pendency of the S.A. and the O.A. the DRT passed the following order on 7.6.2010 in both the cases which is referred to and relied upon by the learned Presiding Officer in his impugned judgment also and that order is reproduced below:
The petitioner has acquired the Bank's interest in the secured asset; the some petitioner has deposited with the Bank a sum of rupees five lacs not as the borrower; but as the third party. The Bank's real borrowers have not made their appearance and have not disclosed anything reliable to the Bank so that its recovery can be eased. The facts and materials collected directly by this Tribunal sufficiently indicate the interplay between the allegation and the counter allegation to be raised by the Bank and the petitioner. The property which has been acquired by the petitioner has been the sole source of the recovery of the Bank. The present market value of the property is not so much attractive to the Bank if the property is approached from the prudent man's angle.
If Shri Rajan Jha, the petitioner is directed to deposit with the Bank another sum of rupees fifteen lacs together with the simple, reducing balance based interest...
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