Manju Devi And Ors vs Rbl Bank Ltd. And Ors

P.K. Bhasin, J

The learned Presiding Officer of DRT-II, Delhi passed the following order on 10.11.2016 in the Securitisation Application (S.A.) No. 205/2016 filed by the appellants under Section 17(1) of SARFAESI Act:

"The learned Counsel for respondent Bank submits that they are not going to take possession of the property in question. In this circumstances, the matter is adjourned.

Till the next date i.e. 16.11.2016 status quo be maintained in respect of the property in question.

The matter be listed on 16.11.2016 for hearing on the issue of interim relief."

Then on 16.11.2016 the learned Presiding Officer withdrew the interim protection against dispossession of the appellants herein by passing the following order:

"Heard both sides, the learned Counsel for securitization applicant relied upon the registered GPA, receipts and possession letter which does not create any right in the property in question and in my considered view that prima facie no case is made out for interim relief in favour of the applicant.

In view of the above facts and circumstances, the status quo order passed by this Tribunal on 10.11.2016 is hereby with drawn. The respondent Bank shall be at liberty to proceed further in accordance with law.

Meanwhile, parties are directed to file their respective rejoinder and evidence before the next date of hearing.

The matter be listed before Registrar on 4.1.2017 for completion of pleadings."

Thereafter the appellants herein moved a fresh application for interim relief and on 22.11.2016 the learned Presiding Officer of DRT passed the following order:

"Heard Counsel for the parties in IA. The Counsel for the security applicant submitted that they are registered owners of eight shops built on ground floor and their area comes to approximately 80 sq.yds. built up in property No. D-534, out of Khasra No. 929/537, situated at Village Saboli, in the abadi of D-Block, Gali No. 7, Ashok Nagar, Illaqa Shahdara, Delhi-110093. The Counsel for the security applicant further submitted that in order to show their bona fide they are willing to deposit 20% of the outstanding amount with the respondent No. 1 Bank within 10 days and in default they came forward to handover the physical possession of the shops to the respondent No. 1 Bank before the Tribunal. In the facts and circumstances of the case, I am of the considered opinion that it is a fit case to direct the security applicants to deposit 20% of the total outstanding amount within 10 days with the respondent No. 1 Bank, in default the security applicant shall hand over peaceful physical possession of the property i.e. 08 shops (area measuring approximately 80 sq.yds.) to the respondent No. 1 Bank. In case the applicants default handing over peaceful physical possession, the respondent No. 1 Bank will be at liberty to take physical possession of the property in question through the same Receiver. Till then the Receiver is restrained to take possession of 08 shops (area measuring approximately 80 sq. yds.) built up in property No. D-534, out of Khasra No. 929/537, situated at Village Saboli, in the abadi of D-Block, Gali No. 7, Ashok Nagar, Illaqa Shahdara, Delhi-110093 and it is made clear that the respondent No. 1 Bank is free to take possession of the rest of the property.

For reply and hearing posted to 14.12.2016.

DASTI"

Despite the fact that the learned Presiding Officer of DRT had again passed a fresh order restraining the respondent No. 1 herein (secured creditor) from dispossessing the appellants herein from the shops in dispute, which the respondent No. 1 herein is claiming to have been mortgaged in its favour by respondent Nos. 3 and 4 herein to secure the repayment of loan facility of crores of rupees which it had granted to respondent Nos. 3 and 4, the appellants herein filed the present appeal challenging the above noted order dated 16.11.2016.

The learned Counsel for the appellants had submitted that the title documents in respect of the shops in question were executed in their favour before the alleged creation of mortgage in favour of the respondent Bank and, consequently, the Bank cannot claim itself to be a secured creditor in respect of the shops in question. Since, admittedly, no sale deeds are there in favour of the appellants, the learned Counsel also submitted that since they are in possession on the basis of Agreements to Sell, Wills, General Power of Attorneys etc., they get a right in the shops in question and they are entitled to protect that right.

The learned Counsel for the Bank, on the other hand, submitted that on the basis of Agreements to Sell etc. the appellants did not get my right or interest in the shops in question and, consequently, they cannot invoke Section 17(1) of the SARFAFSI Act. It was also submitted that huge amount of public money is involved in this case and these appellants had been brought into the scene by the Bank's defaulting borrower.

In my view, I need not go into the aforesaid submissions made from both sides regarding right and interest of the appellants in the shops in question and this appeal can be rejected only on the ground that undisputedly after the learned DRT had vacated the interim order passed in favour of the appellants on 10.11.2016 vide order dated 16.11.2016, a fresh order of interim relief came to be passed in favour of the appellants on 22.11.2016, which has already been re-produced. With the passing of the fresh interim injunction order restraining the Bank from taking possession of the shops in question from the appellants, the earlier order dated 16.11.2016 ceased to exist and of no effect. The appellants have not disclosed the fate of their application which they had moved subsequent to the passing of the order dated 16.11.2016. In my opinion, the appellants are concealing from this Tribunal material facts and that disentitles them from getting any interim relief from this Tribunal. This appeal is accordingly dismissed. The appellants have undertaken to surrender the possession of the shops in question in case interim relief was declined to them by this Tribunal and now that their appeal has been dismissed, they are granted one week's time to honour their undertakings by surrendering physical possession of the shops in question to the respondent Bank and in case that is not done, the respondent Bank will be at liberty to itself take physical possession from the appellants and if for that purpose any direction is required to be passed by this Tribunal, it will be at liberty to move an appropriate application in that regard before this Tribunal.