Ajay Goyal And Ors. vs Bank Of India And Ors.

S.N.H. Zaidi, J

Since Mr. Singh has appeared on behalf of the respondent No. 2. caveat is discharged. Heard parties' Counsel on admission. The appellants are aggrieved with the order dated 19.4.2012 of the learned Presiding Officer of DRT-II, Delhi, whereby the application (I.A. 522/2011) filed by the respondent No. 2 for the return of original title deeds deposited in O.A. No. 85/99 before the Tribunal below was allowed.

Mr. Kashyap points out that the assignment of debt and liabilities by respondent No. 1 qua the secured assets to respondent No. 2 was challenged when the application for substitution of respondent No. 2 was considered by the Tribunal below and by order dated 4.9.2008, it was ordered that the question of the legality of assignment would be considered when the O.A. would be finally heard. Mr. Kashyap further points out that though the property of the appellant was mortgaged as security with respondent No. 1, but it was not transferred to the assignee company as it was not mentioned in Schedule 'D' of the deed of assignment dated 26.6.2008. He further points out that subsequently another deed of assignment was executed, which had the mention of appellant's property. According to Mr. Kashyap since the legality of the assignment and the mortgage is to be decided by the Tribunal below, therefore, the title deeds, more specifically the title deed of the appellants, should not have been ordered to be returned to the assignee company.

Mr. Singh, on the other hand, submits that though the assignment deed dated 26.6.2008 was executed in respect of the properties of District Gautam Budh Nagar and District Ghaziabad, but inadvertently the property of the appellant, which is situated at Hapur of District Ghaziabad, had been omitted to be mentioned in Schedule 'D' of the assignment deed. He also points out that in S.A. No. 43/2008 filed by the appellant the learned DRT in its order dated 8.10.2010 had observed that the registration of the deed of assignment at Gautam Budh Nagar in respect of a property of Hapur is an irregularity, which can be rectified by the assignee by getting it registered in the District having jurisdiction. Mr. Singh points out that, accordingly, the assignee company got another assignment deed registered at Hapur, in respect of the property of the appellant. He further points out that the said assignment deed was challenged by the appellant in a writ petition before the Hon'ble Allahabad High Court, which dismissed that petition on 23.11.2010. It is also pointed out by him that the said order dated 8.10.2010 of the DRT passed was also challenged in appeal before this Tribunal, vide Inward No. 533/2010, and this Tribunal vide order dated 3.12.2010 directed the appellant to deposit 25% of the due amount in compliance of the requirement of the second proviso to Section 18(1) of the SARFAESI Act. The said order was challenged before the Hon'ble Delhi High Court in Writ Petition No. 231/2011, but the said petition was also dismissed by the Hon'ble Court with costs. As the appellant did not make any deposit in compliance of the order of this Tribunal, therefore, the appeal was not entertained and was dismissed by this Tribunal on 21.1.2011. Mr. Singh, on Tribunal's query, submits that action qua the appellants' property was taken under the SARFAESI Act and the property was sold in public auction and the sale certificate was also issued to the auction purchaser on 25.7.2011 and the possession has also handed over to him. He points out that since the title deed was to be given to the auction purchaser, therefore, an application for return of the original title deed was made to the Tribunal.

According to Mr. Singh, the appellants want to raise the issue relating to the deeds of assignment again by way of this Appeal, which is barred by the principle of res judicata.

In rejoinder to this contention, Mr. Kashyap submits that the appellants have filed the S.A. challenging the auction sale and the same is pending adjudication before the DRT below. He also points out that the appellant has also filed a complaint case before the ACJM, Gautam Budh Nagar in respect of the assignment deed and the Magistrate has taken cognizance of the same and has summoned the executors of the assignment deed dated 26.6.2008 for trial. Considering the contentions of the parties' Counsel. I am of the considered view that there appears to be no illegality or infirmity in the impugned order warranting any interference of this Tribunal. The appeal has no merit and accordingly dismissed in limine at this stage.

Copy of this order be furnished to the parties as per law and one copy be also sent to the DRT concerned.