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Judgment
Anil Kumar Srivastava, Chairperson
THE APPELLATE TRIBUNAL :
Instant Appeal has arisen against judgment and order dated 26th March, 2015 passed by Learned Debts Recovery Tribunal-III, Kolkata (hereinafter referred to as ‘Tribunal’) in S.A. 89 of 2013 whereby Learned Tribunal dismissed the SARFAESI Application filed by the Appellant, Shankar Sharma. Feeling aggrieved, Appellant preferred the present appeal.
As per the pleadings of the parties, Appellant alleges himself to be the lawful owner of the property situated at Premises No. 10/1A, Bedia Danga 1st Lane, P.S. Kasba, Kolkata – 700 039 under J.L. No. 16, CS Dag No. 257, P.S. Kasba, Ward No. 67, more fully described in the deed of indenture dated 23rd July, 1996 duly registered in Book No. I, Volume No. 35, Page Nos. 37 to 46, being No. 1666 of 1996, registered in the office of ADSR Alipore, along with Respondents No. 6, 7, 8 and 9 (who are Proforma Respondents). Appellant, along with the co-owners, entered into a Development Agreement dated 5th February, 2007 for development of the said premises with Respondent No. 3, namely, Md. Shakil Ahmed, proprietor of M/s. Mohsin Construction, who is a Developer. The premises was developed by Respondent No.3 and the property in question, i.e. the Flat, was handed over to the Appellant on 2nd January, 2011, as per the Development Agreement. Applicant is residing in the said property since then.
Appellant, along with the co-owners, while executing the Development Agreement, also executed General Power of Attorney in favour of Respondent No. 3 (Developer) whereby the Developer was authorized to sell his share of premises/flats.
Appellant received a notice under Section 13 (4) of the SARFAESI Act (hereinafter referred to as “Act”). He sent reply to the Bank on 16th July, 2013 and also lodged a complaint with the local Police Station. From the notice, under Section 13 (4) of the Act, it appears that Respondents No. 4 and 5, Sri Debabrata Nag and Smt. Keya Nag, are borrowers of the Respondents No. 1 and 2/Bank and have created some charge upon the flat in question while Respondents No. 4 and 5, i.e. Sri Debabrata Nag and Smt. Keya Nag, have not acquired any right, title or interest in the property in question. It is further submitted that the Appellant has also filed a SARFAESI Application, being S.A. 753 of 2013, against the State Bank of India wherein loan was granted against the same property to one Sanjoy Das. All actions of the Bank in fact are illegal.
As per the assertion of Respondents No. 1 and 2 Bank, a Home Loan of Rs.8.00 lac was granted to the Respondents No. 4 and 5 on 18 th April, 2011. As security for loan, Respondents No. 4 and 5 executed various loan documents and also created mortgage of the said flat (being self contained flat) measuring 630 sq. feet more or less mosaic super built up area on the second floor in south east side of a G+3 storied building alongwith undivided proportionate share of land at and being premises No. 10/1A, Bediadanga, 1st Lane, P.S.- Kasba, Kolkata – 700 039. A letter dated 20th April, 2011, confirming deposit of the title deed with the Respondents No. 1 and 2 Bank, and an affidavit dated 13th April, 2011 declaring creation of mortgage was also executed by the borrowers, Respondents No. 4 and 5. Statement of Home Loan Account in the name of Respondents No. 4 and 5 reveals that an amount of Rs.9.90 lac was due and payable to the Bank by the Respondents No. 4 and 5. A valid sale deed, being Deed No. 03327 of 2011, registered in the office of ADSR-1, Kolkata in favour of Respondents No. 4 and 5, was deposited with the Bank, creating security. All the actions of the Bank were taken in accordance with law.
It is also borne out from the record that Respondents No. 4 and 5, i.e. Sri Debabrata Nag and Smt. Keya Nag, and Respondent No. 3, Md. Shakil Ahmed, proprietor of M/s. Mohsin Construction, were duly served by the Learned Tribunal but they did not file any objection.
As per the pleadings, it is further stated by the Appellant that Respondents No. 4 and 5 were never in possession of the property in question. It is admitted that the sale deed might have been executed by the Developer, but the same was not confirmed by the owner of the property.
After hearing the Learned Counsel for the parties, Learned Tribunal arrived at the finding that a valid sale deed was executed in favour of the Respondents No. 4 and 5 who had taken loan from the Bank and a co-lateral security was created in favour of the Bank. After going through all the bank accounts which were placed before the Tribunal, the SARFAESI Application was dismissed.
I have heard the Learned Counsel for Appellant as well as the Learned Counsel for the Respondents No. 1 and 2. Respondents No. 3 to 9 were duly served but they neither appeared in the appeal nor any submission was made on their behalf.
It is a matter of fact between the parties that a Development Agreement was executed between Dhurup Chowbey, Shankar Sharma (Appellant), Sanjay Sharma, Jogindar Chowbey, Tarakeshwar Chowbey and Ajoy Sharma and Md. Shakil Ahmed, Proprietor of M/s. Mohsin Construction, on 5th February, 2007 wherein the owner’s share was 38% while the Developer’s share was 62%. It is noteworthy that no numbers or details of flats are mentioned in the Development Agreement regarding allocation of the flats. It is also not in dispute that a registered sale deed was executed by the Developer in favour of Respondents No. 4 and 5, i.e. Sri Debabrata Nag and Smt. Keya Nag, who mortgaged the same in favour of Respondents No. 1 and 2; details of which are mentioned in the Memorandum of Agreement dated 18th April, 2011 between the Bank as well as Respondents No. 4 and 5 as under :
“All that flat on the 2nd floor South East side, measuring about 630 sq.ft. super built up area land measuring about 3 Cottahs, more or less comprised in C.S. Dag No. 257, under Mouza-Bondel, J.L. No. 16 lying and situated at municipal premises No. 10/1A, Bedia Danga First Lane, Police Station-Kasba, Ward No. 67, Kolkata – 700 039.”
Power of Attorney, by Dhurup Chowbey, Shankar Sharma (Appellant), Sanjay Sharma, Joginder Chowbey, Tarakeshwar Chowbey and Ajoy Sharma was executed in favour of Md. Shakil Ahmed, Proprietor of M/s. Mohsin Construction, on 21st August, 2008 wherein it was mentioned in paragraphs 8 and 9 that :
“8. To receive advance or advances and balance consideration money from the intending purchasers in respect of the said property and to deposit the same in our account.
To sign, execute, admit and present any conveyance or conveyances for registration in respect of the said property or any portion of it before the Registrar or Sub-Registrar having authority for the same and to have the said conveyances registered as fully and effectually as we could do ourselves, if personally present.”
On the basis of Power of Attorney, duly executed by the Appellant along with Proforma Respondents No. 6 to 9, in favour of Respondent No. 3, Respondent No. 3 executed the sale deed in favour of Respondents No. 4 and 5, i.e. Sri Debabrata Nag and Smt. Keya Nag.
Deed of Convenience dated 20th April, 2011 executed by Dhurup Chowbey, Shankar Sharma (Appellant), Sanjay Sharma, Joginder Chowbey, Tarakeshwar Chowbey and Ajoy Sharma represented by its constituted Attorney, Shakil Ahmed, in favour of Debabrata Nag, was executed wherein at page 13 Schedule B the details of property sold are mentioned which reads as under:
“Schedule “B”/Or Second Schedule above referred to -
ALL THAT piece and parcel of a self contained flat measuring 630 sq. ft. more or less (mosaic) super built up area on the Second floor in the South- East side of a G+3 storied building containing of 2(two) bed rooms, 1(one) dining, 1(one) kitchen, 1(one) toilet and a balcony along with undivided proportionate share of land at and being premises no. 10/1A, Bediadanga 1" Lane, P.S. Kasba, Kolkata - 700 039, Kolkata Municipal Corporation Asseessee No. 21-067-04-0096-7 in the District of 24 Parganas (S), more fully delineated with RED border in the plan attached herewith under 'A' Schedule property.”
Now it is to be seen as to whether the property in dispute was sold to Respondents No. 4 and 5?
As far as rights of Respondent No. 3 are concerned, they were assigned to him by the Appellant along with Respondents No. 6 to 9 through General Power of Attorney. It is also not in dispute that Respondent No. 3, Md. Shakil Ahmed, is the proprietor of M/s. Mohsin Construction, who is the Developer. As has been quoted earlier, right to sign, execute, admit and present any conveyance or conveyances for registration in respect of the said property or any portion of it was assigned to him by the owners. As far as property is concerned, it is described in the schedule of the property as :
“All that piece and parcel of landed properties situated at 10/1A, Bedia Danga 1st Lane, P.S. Tiljala, Ward No. 67 within th limits of the Kolkata Municipal Corporation, Ward No. 67, Kolkata – 700 029.”
It is also not in dispute that the property in dispute, i.e. the flat, is constructed over this property. As far as sale deed, in favour of Respondents No. 4 and 5, is concerned, it was executed by Md. Shakil Ahmed, registered General Power of Attorney Holder, on 28th April, 2011 by a registered deed in favour of Sri Debabrata Nag in respect of Flat measuring 630 sq. ft. more or less (mosaic) super built up area on the Second floor in the South- East side of a G+ 3 storied building, details are already mentioned hereinbefore. The sale deed was executed by the General Power of Attorney Holder which is neither disputed nor can be disputed by the owners. No proceedings for cancellation of Power of Attorney in favour of Developer or the sale deed in favour of Respondents No. 4 and 5 are pending.
Respondents No. 4 and 5 took Home Loan from Respondents No.1 and 2 and equitable mortgage in favour of Respondents No. 1 and 2 was created by Respondents No.4 and 5. Details of the secured assets are described as Flat on 2nd Floor South East side, measuring about 630 sq.ft. on the property of the Municipal Premises at 10/1A, Bedia Danga 1st Lane, P.S. Tiljala, Ward No. 67, Kolkata. Hence, it is absolutely proved that this property was mortgaged by Respondents No. 4 and 5 with the Respondents No. 1 and 2. When the loan became irregular, it was classified as N.P.A. SARFAESI action was initiated by the Bank against Respondents No. 4 and 5 which was assailed by the Appellant before the Learned Tribunal on the ground that the flat in question was developed by Respondent No. 3 and handed over to the Appellant who is residing in the said flat. Learned Counsel for Appellant has placed reliance upon the supplementary agreement allegedly executed between the Appellant and the Respondents. This document is an unregistered document. Further it was written after about more than a year on 20th July, 2008. There is no mention of the earlier agreement in this supplementary agreement. Further, in the owner’s allocation, it is mentioned that one north east side flat on 2nd floor would be in the owner’s allocation which is for Shankar Sharma and brothers. This document is also a suspicious document and there are certain hand written items which do not bear the signatures of the parties to the agreement. Further in the sale deed executed by Respondents No. 3 in favour of Respondents No. 4 and 5 it was a flat on the second floor on the south east side of the building while in the supplementary agreement, it is mentioned that one north east side flat of second floor is in the owner’s allocation for Shankar Sharma and brothers. No boundaries are given in the supplementary agreement. Further details of the flat as to what is constructed in which portion is also not mentioned. Even if it is accepted for the sake of argument that one north east side flat on the second floor was allocated to Shankar Sharma, then when this flat was handed over to Shankar Sharma, the Appellant? Whether any possession note was executed? Whether Appellant is residing in that flat? Appellant failed to produce any document before the Tribunal. Appellant even failed to prove that this flat is the same flat which was sold to the Respondents No. 4 and 5. When Power of Attorney was executed in favour of the Developer, i.e. Respondent No.3, and that was not revoked by the owners then an act done by the General Power of Attorney Holder binds the executants. In such circumstances, it could not be accepted that the flat in question is within the ownership of the Appellant or he is residing in it rather it is proved that the flat in question was sold to Respondents No. 4 and 5 by Respondent No. 3. SARFAESI action initiated by the Bank against Respondents No. 4 and 5, i.e. owners in question, is legally maintainable.
A plea is raised that on the same flat State Bank of India has disbursed some loan to one Sanjay Das. One SARFAESI Application 753 of 2013 is pending. That was entirely a different SARFAESI Application which has to be decided on the basis of its own facts.
On the basis of the discussion made hereinabove, I am of the view that the Learned Tribunal has arrived at a correct finding and no interference is called for. The appeal lacks merit and is liable to be dismissed.
ORDER
The appeal is dismissed. The judgment and order dated 26th March, 2015, passed by Learned Debts Recovery Tribunal-III, Kolkata in S.A. 89 of 2013, is hereby affirmed.
Copy of the order be supplied to Appellants 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.
File be consigned to Record room.