Appeal No. 164 of 2015. Case: Union Bank of India Vs Rajan Kumar Jha and Ors.. Delhi DRAT DRAT (Delhi Debt Recovery Appellate Tribunals)

Case NumberAppeal No. 164 of 2015
CounselFor Appellant: U.N. Singh, Advocate
JudgesP.K. Bhasin, J. (Chairperson)
IssueCode of Civil Procedure, 1908 (CPC) - Order XLI Rule 23; Order XVIII Rule 18; Section 195; Indian Penal Code 1860, (IPC) - Sections 193, 196, 228; Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 - Sections 13(2), 13(4), 14, 17, 17(1), 17(6), 22, 8; Transfer Of Property Act, 1882 - Section 48
Judgement DateNovember 21, 2016
CourtDelhi DRAT DRAT (Delhi Debt Recovery Appellate Tribunals)

Order:

P.K. Bhasin, J. (Chairperson)

  1. The appellant Bank is aggrieved by the perfunctory order dated 4th March, 2015 passed by Shri Ashish Kalia, the then Presiding Officer of Debts Recovery Tribunal-III, Delhi ('DRT' in short) while disposing of Securitisation Application No. 445/2008 (SA) filed by the respondent No. 1 herein under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short 'SARFAESI Act') when his residential property in Indirapuram, Ghaziabad was in danger of being auctioned by the appellant Bank to recover its money which it had advanced as loan on different dates in the year 2006 to respondent 3 herein, a proprietorship Firm of respondent No. 2, and to secure which loan respondent No. 2 had mortgaged with the Bank his property in Indirapuram, Ghaziabad and which the respondent No. 1 herein was claiming to have purchased from respondent No. 2 in the year 2008. The impugned order is re-produced below:

    "1. The present securitisation application has been filed by the third party applicant against the action of the respondent Bank initiated under the SARFAESI Act, 2002 qua the property bearing flat No. GK-IV/15, Gyankhand, Indirapuram, Ghaziabad (U.P.) (hereinafter the property in question).

  2. The brief facts of the case are that the applicants are claiming as the bona fide purchaser through registered sale deed dated 17.4.2008 and since that enjoying the possession of the property in question.

  3. The applicant has shown the prior original lease deed dated 18.2.2006, executed by Ghaziabad Development Authority in favour of Shri Sanjeev Singh (who is now respondent No. 2 in this appeal) from whom the present applicant has purchased the property in question for a sale consideration of Rs. 27,21,000/- out of which a sum of Rs. 21,55,000 was paid and balance sum of Rs. 6,66,000/- is to pay to the defendant No. 2 on supplying the original documents of the said flat to the applicant which as per the representations of the defendant No. 2 had been misplaced in his house.

  4. It is further submitted that applicant became suspicious when the original documents were not supplied by the defendant No. 2 as per his assurances and promises to the applicant towards finalisation of the sale transaction. On enquiry it was found that no objection received by the defendant No. 2 from GDA was a forged and fabricated document.

  5. Thereafter, the applicant came across the public notice published by the defendant No. 1 Bank (which is now the appellant herein) wherein it was stated that the defendant No. 2 and his firm (respondent No. 3 in this appeal) are liable to pay the said Bank a sum of Rs. 28,06,238/- and the property in question was mortgaged with the defendant No. 1 Bank.

  6. On perusal of records it is observed that the learned Predecessor of this Tribunal has already passed the order on 7.6.2010 wherein the applicant was directed to deposit another sum of Rs. 15.00 lacs together with simple, reducing balance based interest @ 10% to be imposed upon the NPA amount. The order dated 7.6.2010 is reproduced below:

    "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 at the rate of 10% to be imposed upon the NPA amount as arrived at by the Bank in connection with the cash credit, the term loan sanctioned by the Bank on March 3, 2006, the Bank would not be looser at this juncture because the residential flat No. 15, in Gyan Khand IV (GK-IV/15), Indira Puram, Ghaziabad, U.P. which the Bank has at the paragraph No. 5.d Page 7 accepted and described as the flat to be used by the middle income group..........."

  7. In view of the above, this Tribunal is not convinced to interfere in the order passed by learned Predecessor of this Tribunal and hence nothing survives in the present S.A. and the same is disposed of.

    File be consigned to record.

    Sd/-
    (Ashish Kalia)
    Presiding Officer
    DRT-III, Delhi

    Pronounced in open Court

    Dated 4.3.2015"

    From the said final order of the DRT as well as the record of the DRT in respect of S.A. No. 445/2008 what emerges is that on different dates in the year 2006 the appellant Bank had advanced cash credit and term loan facilities to respondent No. 3 firm of which respondent No. 2 was the sole proprietor, and thereafter these respondents failed to repay the loan money to the Bank and their amount was classified as Non Performing Asset. (NPA) in May, 2008 and then a notice dated 13th June, 2008 was given to the respondent No. 3 under Section 13(2) of SARFAESI 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 borrower. Then came to be filed S.A. No. 445/2008 by respondent No. 1 herein before the DRT-III, Delhi in which he claimed that he had purchased the mortgaged property from respondent No. 2 herein, which was a leasehold property of Ghaziabad Development Authority and leased to respondent No. 2 herein 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. 1). It was also the case of the respondent No. 1 that the sale price of the property in question was fixed in the sale deed at Rs. 27,21,000/- but only a sum of Rs. 21,55,000/- was paid to respondent No. 2 since original lease deed was not available with him at the time and it was agreed that balance amount of Rs. 6,66,000/- was to be paid to vendor at the time handing over of original lease deed to the appellant, but the same was never delivered and not only that, the appellant had come to know that even the NOC purporting to have been issued by Ghaziabad Development Authority given by vendor was found to be forged. However, subsequently the respondent No. 1 came to know that he had been defrauded by respondent No. 2 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.

  8. The appellant Bank had contested the S.A. inter alia on the grounds that the S.A. was a collusive step of the applicant (respondent No. 1 herein) and the borrowers (respondent Nos. 2 and 3 herein) aimed at delaying the recovery of Bank's dues and that the alleged sale of the mortgaged property by the mortgagor Sanjeev Singh (respondent No. 2 herein) in favour of the Security Applicant (respondent No. 1 herein) in any case had no effect on the Bank's right over that property as a prior mortgagee.

  9. During the pendency of the S.A. the DRT had passed the following interim order on 7.6.2010, which is referred to and relied upon by the learned Presiding Officer in the above quoted final order also:

    The petitioner has acquired the Bank's interest in the secured asset; the same 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 cased. 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 sale 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 at the rate of 10% to be imposed upon the NPA amount as arrived at by the Bank in connection with the cash credit, the term loan sanctioned by the Bank on March 3, 2006, the Bank would not be looser at this juncture because the residential flat No. 15, in Gyan Khand IV (GK-IV/15), Indira Puram, Ghaziabad U.P. which the Bank has at the paragraph No. 5,d Page 7 accepted and described as the flat to be used by the middle income group. The property has also been in the outskirt of Delhi, the property has also been acquired by Shri Sanjeev Singh whom this Tribunal has personally met in exercise of the power given under Rule 18 of Order XVIII of the First Schedule to the Code of Civil Procedure, 1908 on Saturday, May 23, 2009 on which day it has been assured by Shri Singh of his appearance before this Tribunal. His proprietorship concern named M/s. A.S. Services and Solutions has been out of existence; Shri Sanjeev Singh has also been found that day working under another person; that day it has also met the close relatives of Shri Singh. The deposit by Shri Rajan Jha the above amount along with the above interest shall certainly ensure the Banks's immediate recovery without any thorough trial, but not to the maximum extent.

    This Tribunal intends to have the Bank's view on the above factors that have emerged before itself for the reason of arriving at the above amount. Shri U.N. Singh's claim that Shri Singh, the learned Advocate appointed by this Tribunal as the special officer of itself, the Bank's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT