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Judgment
Sh. Hem C. Vashisht, Advocate for the appellant stated that the appellants are neither the borrowers nor the mortgagors nor the guarantors and as such the appellants are not required to make pre-deposit and, in these circumstances, the condition of pre-deposit be waived in favour of the appellant.
After brief arguments, Sh. Hem C. Vashisht, Advocate on instruction seeks permission to withdraw the present appeal on behalf of the appellant no.1 Manoj Kumar Agarwal. Accordingly, the counsel for the appellant is allowed to withdraw the present appeal on behalf of the appellant no.1 Manoj Kumar Agarwal.
The present appeal is filed to impugn the order dated 23.06.2026 passed by DRT-II, Delhi in S.A. bearing No. 214/2026 titled as Manoj Kumar Agarwal & another V. Anand Rathi Global Finance Limited. The main contention for the appellant is that the appellant no.1 had purchased the subject property from respondent no.2 for consideration of Rs.15 lakhs and the possession of the subject property was handed over to the appellant no.1 on 05.03.2022. The appellant no.1 was was in actual physical and continuous possession of the subject property from 05.03.2022. The respondent no.2 who was the actual owner of the subject property also executed sale deed in favour of the appellant no.1 on 16.05.2025. The appellant no.1 has sold the subject property to appellant no.2 by executing registered sale deed dated 14.10.2025. It is also appearing from the record that the respondent no.2 obtained the loan from the respondent no.1 in the month of October 2023 and the subject property was also mortgaged by the respondent no.2 with respondent no.1. Sh. Hem C. Vashisht, Advocate for the appellant stated that the appellant no.1 was in continuous possession of the subject property on 05.03.2022 and thereafter the appellant no.2 came into possession of the subject property with effect from 14.10.2025. The appellant has never mortgaged the subject property with the respondent no.1.
The DRT-II, Delhi after hearing the whole contention of the parties has declined the interim prayer of the appellants for restraining the respondent no.1 from taking over the possession of the subject property. The relevant portion of the impugned order dated 23.06.2026 is reproduced as under:
6.The next contention of the Ld. Counsel of the applicant is that the mortgage executed in favour of the respondent FI is forged document and the Ld. Counsel has brought the attention of this Tribunal towards various doubtful dates in the mortgage deed. It is further submitted that the first mortgage for security of the loan of Rs.50 lacs in unregistered whereas the subsequent mortgage for Rs.2 Lacs is registered and therefore, as per Section 62 of the Indian Contract Act the mortgage for Rs.50 Lacs will be deemed to be substituted by the new agreement and even if the mortgage is deemed to be valid, the respondent FI can claim only Rs.2 Lacs. In this regard I have perused the record. From perusal of the record it is clear that the first mortgage is unregistered mortgage but the mortgage by deposit of title deed is not required to be registered in Delhi. Therefore, the unregistered mortgage by deposit of title deed is valid. The subsequent mortgage has been registered but it does not mean that the first mortgage has been released. In the present case the provisions of Section 62 of Indian Contract Act cannot apply. More over the applicant is that third person and has nothing to do with the mortgage. Only the mortgagee can challenge the mortgage on the ground of the fraud. A third person who has nothing to do with the mortgage cannot claim the mortgage as voidable. Therefore, the applicant has no authority to challenge the mortgage.
On the basis of above discussion, the interim prayer of the applicant is liable to be dismissed.
It is reflecting from the record that the respondent no.2 has taken loan in the month of October 2023 and the subject property was mortgaged with respondent no.1 in October 2023. The respondent no.2 stated to have sold the subject property on 05.03.2022 and also handed over the possession of the subject property to the appellant no.1 and thereafter the sale deed was executed on 16.05.2025. The appellant no.1 has sold the subject property to the appellant no.2 on 14.10.2025 on execution of sale deed. It is not understandable when the respondent no.2 has availed the loan facility in the month of October 2023 and which was much earlier to the execution of sale deed on 16.05.2025 in favour of appellant no.1 then under what circumstances the respondent no.2 has executed sale deed in favour of appellant no.1. The respondent no.1 being the Financial Institution has already acquired right in respect of the subject property and subsequent sale of the subject property cannot affect the said right of the respondent no.1. There is no illegality or infirmity in the impugned order which warrants any interference by this Tribunal. There is no merit in the appeal and it is accordingly dismissed.