Chhaya Gaur vs Diwan Housing Finance Corpn. Ltd. And Ors.

Ranjit Singh, J

Appellant Smt. Chhaya Gaur had filed this SA through her husband being her attorney claiming to have interest over the property in question which was mortgaged by Shri Vikas Sharma (respondent No. 2) with respondent No. 1 Corporation. Appellant, otherwise, is real sister of borrower-mortgager Shri Vikas Sharma respondent No. 2. In the SA, the appellant had alleged that her brother got the sale deed executed in his favour without any sale consideration. The appellant states to have done so in good faith to favour her brother. The appellant had further urged that she executed this sale deed on the asking of her brother who wanted to show his capacity to repay the loan and would allege that her brother along with respondent Financial Corporation connived with each other to grab the property of the appellant, which is valued at Rs. 10 crores or above.

Pleading that her brother (respondent No. 2) fraudulently by concealing the facts mortgaged the property in question on the basis of registered sale deed dated 12th July, 2012 which she had executed without payment of any sale consideration. Respondent No. 2 had obtained a loan of Rs. 1.50 crores from respondent No. 1. As per the appellant, she had not handed over possession of the property to respondent No. 1 and Ms. Kavita Sharma in whose favour the sale deed was executed.

The Tribunal below after receiving response from the respondents has dismissed the SA finding no merit therein. Aggrieved against the same, the appellant has filed this appeal.

The Tribunal below has rightly appreciated and considered the issue where apparently sister is coming forward to the rescue of her brother.

The appellant had claimed interest over the property in question by pleading that she was deceived by her brother who had committed fraud with her by mortgaging the property in question. The appellant had also pleaded that the property in question is HUF property created out of joint family funds. This plea is contrary to the contents of the sale deed which is on record and where it is mentioned that it is the self acquired/self earned property of the appellant.

The fact that the appellant had executed sale in favour of her brother is not in dispute. Plea that this sale deed was executed without any consideration is self-serving plea. Even this is belied by the material on record. Total sale consideration shown to have been exchanged is Rs. 1.30 crores. Out of this, Rs. 26 lacs were paid in cash. Rs. 1.04 crores was paid by cheque dated 31st May, 2012 drawn on Dewan Housing Finance (respondent No. 1). How can this then be taken as sale without consideration? Rs. 7.80 lacs was paid as stamp duty. Still if it is taken that the appellant was so considerate to execute the sale deed in favour of her brother without accepting any sale consideration, then she herself is responsible for the consequences arising therefrom. Subsequent action taken by the brother to mortgage the same cannot be faulted on these assertions made by the appellant. The action of the Bank in accepting this property as security to advance loan is totally legal and valid. The Bank cannot be attributed with any responsibility to go behind the title documents and to see how they have come into existence. It is then urged that the family members of the appellant have filed a suit against respondent No. 2 in which notice has been issued. This appears to be right course of action if the appellant wants to get the sale set aside. The issue whether the sale deed was valid or not ultimately will be considered and decided by the Hon'ble High Court where this suit has been filed. Mere pendency of suit would not in any manner lead to curtail the right of the Bank to recover the loan amount from the security which was offered while taking the loan from respondent No. 1.

Plea that as per the sale deed the appellant had sold 3rd floor of the property which is not in existence is not made out from the record. It was never raised before the Tribunal below. The recital in the sale deed executed by the appellant describes the property in possession as built up third floor portion upto ceiling level, with common entrance, common passage, common car parking, common stairs from the ground floor, etc. Appellant has purchased this property as plot from Shri Ashok Kumar Bajaj. This plea thus again is raised for raising doubt only. It cannot be accepted that the sale deed is void ab initio, as pleaded by the Counsel. Such a declaration has to be passed by the Civil Court where the family members of the appellant have made approach to.

Though it is pleaded in the appeal that the sale deed was without any consideration but the submissions made before the Tribunal below and found recorded would show that the appellant had expressed her readiness to return the balance sale consideration. If no consideration had passed then the question of return of balance sale consideration could not have been made. In the appeal it is pleaded that Rs. 60 lacs have been taken back by respondent No. 2 in the form of cheque drawn on Punjab National Bank dated 19th July, 2012 and the remaining amount of Rs. 44 lacs was given back in cash. Reference is made to some blank cheque filled for a sum of Rs. 2 crores which is termed as wrong for which some proceedings are in progress under Section 138 of the Negotiable Instruments Act. All these pleas are self serving pleas raised by the appellant to make out a case which is apparently to save the borrower mortgagor.

Considering the facts in totality, it can be inferred that this is only an attempt to interfere in the process of recovery which respondent No. 1 has initiated. Possession notice stands issued on 13th January, 2015. I do not find any merit in any of the pleas raised by the appellant and would, therefore, dismiss the appeal in limine. In view of the order passed in the appeal, the pending IAs are rendered infructuous and disposed of as such.