Balwantrai Jaygopal Agarwal vs Capri Global Capital Ltd. & Ors

Ashok Menon, Chairperson

The matter is taken up for hearing by way of praecipe filed by the Appellant seeking urgent relief.

The Appellant is in appeal challenging the order dated 18. 01.2023 of the Debts Recovery Tribunal, Pune (D.R.T.) in I.A. No. 11/2023 in S.A. No. 33/2023 seeking interlocutory reliefs against the Sarfaesi measures initiated by the first Respondent against the borrowers. The Appellant is neither a borrower nor a guarantor or a mortgagor. He claims to be a person who is having a right title and interest over the secured assets and admits that he has executed a sale deed with regard to the subject property in favour of the borrowers who are Respondents Nos. 3 to 8 as early as 29.01.2016. The Appellant would contend that it is a conditional sale wherein on condition of the sale consideration being refunded to the vendee, the property has to be re-conveyed to the vendor. The Appellant, therefore, sought relief to stall the Sarfaesi measures initiated against the subject property. The Ld. Presiding Officer vide the impugned order refused to grant any interim orders and dismissed the application. Aggrieved by that dismissal of the I.A., the Appellant is an appeal.

It is pertinent to note that the Appellant had as early as 2016 executed a sale deed in favour of his nephew for having taken a loan from him and executed a sale deed with a condition to re-convey the property. Thereafter, the Defendants Nos. 3 & 4 mortgaged the property by deposit of title deed and obtained the loan from the first Respondent herein. The repayment of the loan was defaulted and Sarfaesi measures were initiated. Notice under Sec. 13(2) of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002(‘SARFAESI Act’, for short) was issued as early as 27.01.2020 and the outstanding dues are around ₹2.05 crores. The borrowers do not have any objection to handing over the property but the Appellant filed a Securitisation Application seeking relief under Sec. 17 of the SARFAESI Act claiming to be a party who is affected by the Sarfaesi measures. The Ld. Presiding Officer found that the Appellant has no existing right over the property in view of the execution of the sale deed in favour of his nephew and therefore, he cannot claim any existing right unless the property is got re-conveyed. The Appellant has, in fact, filed a Civil Suit before the Civil Judge, Senior Division, Pune as Special Civil Suit No. 896 of 2021 for seeking a prayer for re-conveyance of the property. No orders have been passed in that Suit. The Suit was filed in the year 2021 and in that plaint, it is very categorically stated that the property has been handed over to the vendee. In the sale deed which has been produced by the Appellant, it is categorically clear that the vendor has conveyed all the rights, title and interest without reserving any right on the said property with him.

The Ld. Counsel appearing for the Appellant also states that the Appellant has been cheated and defrauded by his brother and his family and therefore, his possession over the property to be protected. It is also pertinent to note that the Appellant has admittedly handed over possession of the property to a third party under a leave and license agreement and therefore, he is not in actual possession of the property.

The Ld. Presiding Officer was justified in not granting any interlocutory reliefs to the Appellant for want of prima facie case in favour of the Appellant. I also do not find any reason to interfere in that and therefore, the application for a stay is rejected. In view of the fact that no interlocutory orders are granted in the stay application filed as I.A. No. 129 of 2023, the Misc. Appeal also would not lie and consequently, the Misc. Appeal No. 36 of 2023 also stands dismissed.