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Judgment
Ranjit Singh, J
Aggrieved against the order passed by DRT-I, Delhi declining the interim relief against the action initiated by the respondent bank under the SARFAESI Act, the appellant has approached this Tribunal. Prayer is that the position as it exists today should be maintained as the S.A. pending before the Tribunal below is ripe for hearing and can be dispose of finally.
The appellant is apparently engulfed in a long drawn battle between the bank and a borrower Mr. Hukam Chand, with whom he has no concern. An agricultural land purchased by the appellant, which ultimately was traced to the ownership of the borrower, has been a cause for trouble for the appellant. The appellant had purchased a piece of land on 26.10.2009 vide sale deed executed in its favour by M/s. SAJ Properties Pvt. Ltd. As per the appellant, he had purchased this property after due diligence and after making appropriate enquiries regarding title of the property. It is averred that no mortgage was registered in the revenue record in respect of the land which the appellant purchased.
The appellant seems to have learnt about the land being under proceedings when he received an order dated 6.12.2012 passed by ACMM, Delhi appointing a' Receiver to take possession of the property in question. He otherwise was never served with any notice ever by the bank or the Receiver. Aggrieved against this order the appellant filed an application under section 17 of the SARFAESI Act before the DRT.
The Tribunal below initially adjourned these proceedings to enable the parties to explore the possibilities of amicable resolution, with the direction that the bank shall not take possession of the property till the next date of hearing fixed. Subsequently, the Presiding Officer appointed a Local Commissioner to inspect the property and to report, which he did. The appellant filed objection to the report submitted by the Local Commissioner. The main grievance of the appellant is that there is no privity of contract between him and the respondent bank He is not even named as respondent.
The counsel for the appellant has also raised some other issues as well. He has disclosed that one Hukam Chand had taken loan of Rs. 3 lacs from the respondent bank sometime in 1998 after mortgaging his 2 bigha and 8 biswas, Mustatil No. 19, Killa No. 4 Min., situated in Village Salahpur, Tehsil Vasant Kunj, Kapashera, New Delhi. Said Hukam Chand defaulted in the repayment of the loan and it was classified as NPA on 31.3.1999. The bank initiated arbitration proceedings under the Delhi Cooperative Societies Act. The Arbitrator gave an award on 22.10.1999 allowing an amount of Rs. 3,53,943/- along with interest @19% + 20% p.a. It is stated that Hukam Chand had sold this property to someone, which was further sold and was finally purchased from M/s. SAJ Properties Pvt. Ltd. along with some other land and so total land measure is 16 bigha and 8 biswas. As per the appellant, this property is being used for agricultural purposes and has referred to some documents and material on record in support of this plea. The appellant would also point out gross negligence on the part of the bank which had initially issued a demand notice on 10.4.2004 for the recovery of the amount awarded by the Arbitrator but chose to file the present proceedings under the SARFAESI Act in the year 2012.
On the other hand, to counter the appellant, the bank has justified this action and has mainly relied upon the report of the Local Commissioner, which has described the property to be a lush green farm house.
Whether the land is being used as agricultural land or not would depend upon the evidence including the Local Commissioner's report and this issue would ultimately has to be adjudicated by the Tribunal below. Even the other submission made by the counsel for the appellant that the respondent could not have changed its course to resort to the provisions of SARFAESI Act after the expiry of nearly 14 years of getting the arbitration 'award will again have to be considered by the Tribunal below. He has also raised an issue whether the claim can be enhanced from the amount as awarded by the Arbitrator etc. The Tribunal, however, declined to grant interim relief primarily on the basis of the report given by the Local Commissioner.
The counsel for the appellant has raised arguable points which require consideration. These issues have to be first decided by the Tribunal below. The question is whether the bank should be permitted to take possession of the property during the pendency of the S.A. or not. The Tribunal below had initially granted an interim order in favour of the appellant, but has not continued the same primarily on the basis of the report filed by the Local Commissioner. If the bank is allowed to take possession, obviously the property is likely to be put to sale. If tomorrow the Tribunal takes a view that the property is either agricultural land or that the' appellant is not liable being bona fide purchaser, then it may not be possible to compensate the appellant and he accordingly would suffer irreparable loss. Incidentally, the property in issue is a part of the bigger chunk of land owned by the appellant. It may lead to some other' complication as well. Balance of convenience appears to be in favour of the appellant. Since the Tribunal is dealing with the S.A. and the same is ripe for hearing, no party is likely to suffer any major consequence if status quo as it exists today is maintained during the pendency of the S.A. before the Tribunal below. The counsel for the respondent has pointed out that the pleadings are complete and the DRT can very well decide the main S.A. as well. The appellant has already deposited a sum of Rs. 10 lacs, which is a good amount to secure the loan and this is enough to balance the equities.
Accordingly, the present appeal is disposed of with the direction that the parties shall maintain status quo as it exists today in regard to the possession of the property till the S.A. pending before the Tribunal below is finally disposed of. Needless to mention that the Tribunal below would decide the respective claims of the parties on, the basis of evidence led and would not be influenced in any manner by any observation made in the impugned order, which are prima fade in nature. Parties shall bear their own costs.
Copy of this order be furnished to the parties as per law.