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Judgment
Anil Kumar Srivastava, Chairperson
THE APPELLATE TRIBUNAL :
Instant Appeal arises out of an order dated 11th March, 2019 passed by Learned Debts Recovery Tribunal, Siliguri in S.A. 21 of 2019 whereby the SARFAESI Application, filed by Appellant, was dismissed.
It appears that the Appellant filed a SARFAESI Application before the Learned DRT challenging the SARFAESI action initiated by the Respondent Bank against Appellant’s property allegedly purchased by the her on 30th March, 2017, being L.R. Plots No. 558, 559, 770 and 773 on the ground that plots were agricultural land which could not be sold under the SARFAESI proceedings and is barred under Section 31 (i) of the Act. Some other grounds were also taken in the SARFAESI Application challenging the SARFAESI action by the Respondent.
Objections were filed by the Respondents.
After hearing the Learned Counsel for the parties and perusing the record, Learned DRT delivered the following order :
S.A. 21 of 19 has been filed by the Appellant against the defendant No.1 bark and Defendant No 2 Smt. Savita Srivastava from whom he has purchased the secured property. The applicant has challenged the sale notice dated 8/2/19 where by the sale of the secured asset is fixed on 12/3/19.
Learned Counsel for the applicant submits that the mortgage property was purchased by the applicant 30/3/17 from Defendant No.2 Smt. Savita Srivastava as an agricultural land He is in possession of the said property. He further submits that applicant is a bonafide purchaser and in the revenue record, it is an agricultural land which cannot be sold under SARFAESI proceeding as there is a bar u/s 31(1) of the said Act. He submits that he is a bonafide purchaser.
On the other hand the Learned Counsel for the defendant bank submits that the applicant is neither a borrower nor the guarantor. He has purchased the said mortgage property by virtue of Title Deed No:040301682 for the year 2017 registered in the office of the ADSR Bagdogra in Book No. 1.volume No. at pages from 34023 to 34062, from defendant No.2. Learned Counsel for the defendant bank submits that security interest was created in the mortgage property way back on 20/11/2010 in favour of the bank and the applicant has purchased this property on 30/3/2017 knowingly that property is mortgaged with the Defendant Bank. As such the Appellant is not entitled to any relief.
Learned Counsel for the Defendant (2) submits that the mortgage property is not an agricultural land but it is a commercial property. The defendant (2) has filed an I.A. 93 of 2018 in S.A. 94 of 2018 connected S.A. and described the property has a commercial property in the schedule as ‘B’ as follows:
(B) The properties of the applicant no. 2 Rakesh Srivastava (Guarantor):
i) The Deed No. 1-4425 dated 28.05 2004 nature of property residential, Area of land 0.149 Acres plot No. 458, 530, 537 (LR) Khatian No.61/3.61/4 Mouza Mendalguri, J.L. No. 107 (85) PS Matigarah, District
ii) Title Deed No. 1-7562 dated 30.12.2009, Nature of property Residential Area of land .084 Acre Plot Nos. 458, 530, 537 (LR) Khatian No. 61/3.61/4 Mouza Mandalguri, P.S Matigarah. District- Darjeeling.
I have heard the Learned Counsel for the parties and gone through the pleadings filed by parties and perused the record Defendant no. 2 is the borrower and the defendant No. I has extended loan facility to the defendant No. 2 against mortgage property which was created on 20/11/10, with regard to three properties including the present one which is the subject matter of this SA. The Applicant has purchased the said property from Defendant No. 2 for consideration of Rs.78lakhs on 30/3/17.The applicant did not try to find out whether the said property was free from all encumbrances or not. The applicant cannot take benefit of his own wrong Purchaser must be aware of the property which he is going to purchase. It is clear from the record that mortgage was created on 20/11/10 in favour of Bank defendant No. I who has first charge over the property and applicant has purchased the said property on 30/3/17.
Under the circumstances the applicant is not entitled to any relief from this Tribunal. As such the SA filed by the applicant is dismissed without any order as to cost.”
Learned Counsel for Appellant submits that the impugned order did not contain any averment regarding the issues raised by the Appellant in the pleadings and in the SARFAESI Application. Properties which are mentioned in the order are allegedly the properties of Respondent No. 2, Rakesh Srivastava, in S.A. 94 of 2018 whereas the property mentioned in the SARFAESI Application is different. It is further submitted that those properties mentioned are agricultural land but no finding is recorded by the DRT; rather a finding recorded that as per Agreement dated 20th November, 2010 in favour of the Appellant who has a first charge over the property while Appellant has purchased the property on 30th March, 2017.
Learned Counsel for Respondent Bank submits that the properties in question are not agricultural land as is apparent from the Revenue Records. It is further submitted that the secured assets, as mentioned in the notice under Section 13 (2) of the SARFAESI Act, 2002 were mortgaged with the Bank in the year 2010 which were subsequently allegedly purchased by the Appellant, hence she has no right over the properties and the SARFAESI action, taken by the Bank, is in accordance with law.
As far as the impugned order is concerned, which is passed on a single finding that the mortgage was created on 20th November, 2010 in favour of the Bank while the Appellant has purchased the property on 30th March, 2017. Defendant No. 2, Rakesh Srivastava, described the property by filing an I.A. in S.A. 94 of 2018, where the Applicant is not a party, which has been recorded in the impugned order by the Learned DRT but the same has not been considered by the Learned DRT.
Learned DRT has dismissed the SARFAESI Application. It is settled legal proposition that the plea raised by the Appellant in the SARFAESI Application, should have been duly considered by the Learned DRT and the finding arrived at should have been recorded. There are no preliminary issues in the SARFAESI Application as in regular suits. All the pleas raised in the SARFAESI Application should have been duly considered and finding should have been recorded by the Learned DRT. There is no finding on the point as to whether the alleged plots No. 558, 559, 770 and 773 are agricultural land or not. Learned DRT was expected to consider all those aspects in accordance with law, which was not done.
In view of the discussions made above, I am of the view that the matter should be remitted to Learned DRT, Siliguri to decide the matter afresh after affording opportunity of hearing to the parties. Accordingly, the appeal is liable to be allowed.
ORDER
The appeal is allowed. The matter is remanded to DRT, Siliguri for deciding the SARFAESI Application afresh, in accordance with law, after affording opportunity of hearing to the parties. Learned DRT is expected to pass a reasoned speaking order.
No order as to costs.
File be consigned to Record room.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
Copy of the Judgment/Final Order be uploaded in the Tribunal’s Website.
Order dictated, signed and pronounced by me in the open Court on this the 31st day of August, 2022.