Aman Khetrapal & Ors vs Union Bank of India & Ors

R. D. Khare, Chairperson

Heard the learned counsels for the parties.

The present appeal has been filed under section 18 of the SARFAESI Act against an interim order dated 03.12.2022 passed by the DRT, Allahabad in S.A. No. 600/2021, whereby the interim application filed by the appellants was disposed off.

Learned counsel for the appellant submitted that the appellants are neither borrowers nor guarantors or mortgagors, but they are tenants in the property in question. It is further submitted that the property in question having 2590.08 sq. yards including residential accommodation in question covering the area of 400.19 sq. yards was brought under tenancy of late R.N. Khetrapal in the year 1955, who had bequeathed his tenancy right in favour of their grandsons, daughter in law i.e. Smt. Renu Khetrapal, wife Smt. Raj Khetrapal as well as younger son Shri Sunil Khetrapal in the year 1996. As such they became absolute/statutory tenants in the property in question.

Learned counsel for the appellants also submitted that during the period of tenancy, the Greenland (A & M) Corporation, which is a partnership firm, has purchased the property in question vide registered sale deed dated 12.09.2002, which became freehold vide registered Freehold Deed dated 23.03.2017 subject to tenancy rights of the appellants. The said firm was granted some financial assistance by the respondent-Bank and in order to secure the same, the property in question was mortgaged by the borrower-firm through its directors including Suil Khetrapal, who is father of the appellants no. 1 & 3 and husband of appellant no. 2. The borrowers did not maintain the financial discipline, therefore, the account was declared as NPA. Thereafter, the respondent-Bank initiated the recovery proceedings by taking recourse to section 13(2), 13(4) of the SARFAESI Act and lastly issued sale notice for auctioning the property in question.

Learned counsel for the appellant has canvassed that the entire proceedings have been challenged by the appellants by way of the present S.A. No. 600/2021 before the Tribunal below and the another S.A. has been filed by the borrowers and both the SAs are still pending consideration. Thereafter, the respondent-Bank obtained an order dated 15.09.2022, which was subsequently corrected on 20.09.2022, from the District Magistrate concerned under section 14 of the SARFAESI Act and the same was challenged by the appellants before the Tribunal below by means of amendment application, which was allowed. Pursuant to the said order, ACM (II) Prayagraj has issued a notice for taking physical possession of the property in question on 07.12.2022 therefore, the appellants moved an interim application in pending S.A. before the Tribunal below for restraining the Bank from taking physical possession on 07.12.2022, which was rejected vide order impugned. It is therefore, prayed that the order impugned be set-aside and as well as entire process of respondent-Bank causing dispossession from the tenanted residential accommodation in question.

Learned counsel for the respondent-Bank submitted that the appellant does not have any legal right to retain the possession of the property in question. The appellant No. 2 is the wife, the appellants no. 1 and 3 are the son of Shri Sunil Khetrapal, who is one of the partners of the borrower firm-respondent No. 3. The appellants, who are the family members of Shri Sunil Khetrapal, have not impleaded all the members as party to the proceedings with malafide intentions and are trying to build up a case of alleged tenancy by filing the present S.A.. It is further stated that the appellants as well as the borrowers are residing with each other in the capacity of landlord and tenant.

Learned counsel for the respondent-bank further submitted that the borrowers while creating the equitable mortgage over the property in question had declared that the said property is in their possession. In this regard, the learned counsel has referred to a declaration given by the mortgagor together with free hold deed, which is as annexure 7 to the reply filed by the Bank. The said document shows that the property in question had also remained in possession of mortgagor namely Sunil Khetrapal, who is husband of appellant No. 2. As such the entire idea of tenancy of the appellants is utterly false, mischievous and deceptive in nature, hence the appeal filed by the appellants may be dismissed with heavy cost.

It has been stated that the appellants are neither borrowers nor guarantors or mortgagors, but they are tenants in the property mortgaged with the Bank, therefore, the condition of pre-deposit is not applicable upon them.

Perusal of the impugned order dated 03.12.2022 shows that the Tribunal below has observed that since one S.A. No. 303/2021 is already pending, in which the same mortgage property is involved and same notice of the ACM has been challenged and in the said S.A., the Tribunal below vide order dated 01.12.2022 has already restrained the respondent-Bank with certain conditions and further, the Tribunal below was of the view that since the prayer made in the present S.A. relates to the same mortgage property and the same notice of the ACM, therefore, the interim protection as prayed for by the appellants has been disposed off in terms of the order dated 01.12.2022 passed in S.A. No. 303/2021 filed by the borrowers.

The securitization applications filed by the appellants as well as the borrowers are still pending and all the contentions and issues raised by the appellants of said SAs. are yet to be adjudicated by the Tribunal below, therefore, it would not be appropriate to touch the merits of the case at this stage. Since the Tribunal below has already granted the interim relief against the same cause of action, which is under challenge in the present S.A., therefore, the Tribunal has rightly disposed off the interim application of the appellants vide order impugned in terms of the interim relief granted earlier in another S.A. As such no interference is called for in the impugned order dated 03.12.2022 passed by the Tribunal below. Accordingly, the appeal is liable to be dismissed, hence the same is dismissed with no order as to costs.