Ms Raksha Sehgal vs Axis Bank

Brijesh Sethi, Chairperson

This is an appeal against the order dated 26.02.2024 passed by the Ld. DRT-11, Delhi, which runs as under:-

"26.02.2024 Item no.6

Present:  Lt. Cot. P. K. Saran, counsel for applicant Shri Anupam Singh, counsel for respondent bank Shri O.P. Gulabani, counsel for R-6

Matter is taken through VC

The SA has been filed by the applicant,  challenging the entire SARFAESI actions initiated by the respondent bank including the notice issued  by the Court Receiver for taking the physical possession of the property on 26.02.2024.

The Ld.  Counsel for the applicant has submitted the respondent no.2 to 5 have availed a home loan of Rs.4.25 Crores from the respondent no.1 on 24.11.2006 against the mortgage of the subject property. Thereafter respondent no.4 & 5 entered into a collaboration agreement with respondent no.6 on  19.007.2007 and respondent no.6 demolished the subject property and reconstructed the same and respondent no.6 sold the first floor of the subject property to the applicant no.1 and respondent no.4 & 5 sold the basement and ground floor to the applicant no.2 and his wife.  Thereafter applicant no.1 & 2 got mutated the subject property in their names.  It is further submitted that the respondent no.2 has informed the applicants that  respondent  no.2 to 5 have reached an amicable  settlement with  the respondent no.1  bank.  It is submitted  that  the  respondent  bank  is  going  to  take  the physical possession of the subject property on 26.02.2024 and requested that respondent bank may be restrained from taking the possession of first, basement and ground floor of the subject property.

On the other hand, the Ld. counsel for the respondent bank has submitted that the present SA is not maintainable as both the applicants have their own separate floor, hence common petition is not maintainable on behalf of both  the applicant.   It is further submitted that the respondent bank has granted loan facility to respondent no.2 to 5 on  24.11.2006 and subject property has duly been mortgaged in favour of the respondent bank since 2006.   Thereafter the borrower has entered into a collaboration agreement with the builder, who has reconstructed the property and thereafter the applicant no.1  has purchased the property in the year 2008 and applicant no.2 has purchased the subject property in the year 2011. It is further submitted that the borrower of the respondent bank has made default, therefore, respondent bank is proceeding against the entire subject property and therefore, the applicants are not entitled for interim relief from this Tribunal.

Heard the Id. counsels of both the parties and perused the record.

From perusal of  the record it appears that the applicants herein have purchased the first floor,  basement and ground floor of the subject property in the year 2008 & 2011,   whereas the subject property has already been mortgaged in favour of the respondent bank on 24.11.2006. Hence the respondent  bank  is  having  prior  mortgage  in respect of the subject property. Considering the above facts and circumstances, this Tribunal is of the view that no prima facie  case  is  exist in favour of the  applicant for granting interim  relief   Accordingly,  the prayer of the applicant for restraining the respondent bank from proceedings against the first, basement  and ground  floor of the  subject property stands rejected.

List the matter on 24.04.2024 before Registrar for completion of pleadings.

Sd/-

(SUISHIL KUMAR RASTOGI)

PRESIDING OFFICER

DRT-II, Delhi"

Ld. Counsel for the appellants prays for interim protection from dispossession from the properties as the respondents no.2 to 5 have played a fraud upon appellants. It is submitted that the appellant no.2 had purchased basement and ground floor of the property from the owners of the property while appellant no.1  purchased the first floor from  respondent no.6 who  is the builder.   It is submitted that the appellants were not aware of the fact that respondents no. 2 to 5 had taken financial facilities from Axis Bank, i.e. respondent no.1  when they had purchased their flats. It is submitted that the Axis Bank was also not  vigilant  as it had not registered the  charge  over  the properties with CERSAI. In this regard, Ld. counsel for the appellants has referred to a Circular dated 26.05.2011 issued by Reserve Bank of  India  which  refers  to  registration  of charge  by  the  Banks.  Ld. counsel, therefore, states that in the absence of registration of any charge with CERSAI, the appellants were not aware that a charge stands  created  on  the  properties,  otherwise  they would  not  have purchased the same.

It is next submitted that the owners of the second floor had approached the Ld. DRT-II, Delhi by way of a separate S.A. and had prayed for protection from dispossession, however, the Ld. DRT had dismissed their prayer for protection.  However,  DRAT, Mumbai, in Misc. Appeal No.61/2024, vide its  order  dated 14.03.2024 has protected  their   possession  observing  that since the  property  has changed hands several times and, therefore, title documents of the same have to be decided by the DRT. Ld. counsel for the appellant, therefore, prays that the appellants be also granted protection from the dispossession.

Ld.  Counsel for the appellants has further submitted that an FIR No.0195 dated 17.12,2021 has also been lodged with Economic Offences Wing  of Delhi  Police against respondents  no.  2 to  5 for cheating.

Ld. Counsel for respondents 2 to 5 has put in appearance and submitted that respondents were ready to settle their loan account with the respondent no.1 bank for a sum of Rs.1.30 crores two years back and were making regular payments.  However, out of Rs.1.30 cores they could pay only Rs.40 lacs but could not pay the rest of the amount because of the fact that one of the borrower was suffering from cancer. It is submitted that respondents no. 2 to 5 are still ready to pay the balance amount of Rs.90 lacs within a month.

Ld. Counsel for the respondent bank has submitted that as on today an amount of Rs.3.38 crores approx. is outstanding against the borrowers. It is submitted that  the property  in question stands mortgaged with the bank since 2006 whereas the appellant no.1 has purchased the property in the year 2008 and appellant no.2, in the year 2011.   It is further submitted on behalf of the bank that soon after the receipt of Circular dated 26.05.2011 from the Reserve Bank of  India,  the  bank  has  acted  upon  it  and  started  registering  the charge over the properties with CERSAI. However, since number of loan were given, it took time to register the properties with CERSAI and property in question was registered on 24.11.2011 with CERSAI. He further stated that in case, the appellants have been cheated by respondent  no.  2 to  5,  they can take  recourse to  civil  as well  as criminal remedies available to them in accordance with law, but they have no remedy available under the SARFAESI Act for redressal of their grievance.

It is further submitted by learned counsel for the bank that the order dated  14.03.2024 of the DRAT, Mumbai is distinguishable as the property in question there had changed hands number of times vide registered sale deeds whereas in the present  case, the properties have been purchased directly from respondent no. 6, i.e. the builder of the building as well as from respondents no. 2 to 5 who were the owners of the property.

Ld. Counsel for respondent no.6 submits that he has nothing to say in the matter as no relief has been claimed against it.

This Tribunal has considered the rival submissions. Perusal of the record reveals that a mortgage over the property was created in the year 2006 against the loan availed by respondents no. 2 to 5 and charge  was  registered  with  CERSAI  on  24.11.2011 i.e.  after five months of the issuance of Circular dated 26.05.2011. Though there is a delay in  registration of charge,  however, the respondent bank has explained the fact that after issuance of circular, they had started registering the properties with CERSAI,  however,  since number of loans were given, the property could be registered with CERSAI on 24.11.2011 only.

Perusal of record reveals that this is a fact that the appellants have been cheated by respondents no. 2 to 5 for the reason that in the Collaboration Agreement entered with the respondent no.6, the builder, it has been mentioned that the said property is free from all kinds of encumbrances such as prior sale, gift, mortgage, disputes, litigation,  acquisition,  requisition,  attachment  in  the  decree  of any court,  lien,  court  injunction,  notices,  claims  demands,  Will,  Trust, Exchange, lease, loan surety, security, stay order, prior agreement to sell etc. and the fact that a loan was already taken by respondents no. 2 to 5 from the bank was concealed. It is also a fact that an FIR No.0195/2021 also stands registered against respondents no. 2 to 5 by the appellants under Sections 420, 406, 120B IPC.

The  above  facts  clearly  reveal  that  appellants  have  been cheated by respondents no. 2 to 5. This Tribunal is of the opinion that since the appellants have been cheated by respondents no. 2 to 5, they can take recourse to civil and criminal remedies available to them in law,  however, they cannot be granted any relief so far as recovery of the loan advanced by the bank to respondents 2 to 5 is concerned  and,  therefore,  bank  cannot  be  restrained  from  taking over  of  the possession  of  the  properties  in  question  under  the SARFAESI Act.

So far as order passed  by the  DRAT,  Mumbai dated 14.03.2024  in  appeal  bearing  no.61/2024  filed  against  the  order dated 23.02.204 passed in a different S.A. (bearing no.154/2023) in respect of second floor of the property in question is concerned, in which the Ld.  DRAT, Mumbai has granted interim protection to the occupant of second floor, this Tribunal is of the opinion that the said order is distinguishable  on the ground that  in  the said  case,  the property had changed hands several times by way of registered sale deeds before coming to the owners of second floor.  It was, thus, keeping in mind the peculiar facts and circumstances of the case that the Ld. DRAT, Mumbai has observed that the Ld. DRT should go into the question of title of the property. However, in the present case, it is not in dispute that the properties in question have been purchased directly from respondents no. 2 to 5 i.e., the owners, and respondent no.6, i.e. the builder, and therefore, the said order does not come to the rescue of  the appellants and is clearly  distinguishable as discussed above.

In view of above discussion and keeping in mind the fact that the bank has to recover huge amount of over Rs.3.38 crores from respondents no. 2 to 5, this Tribunal is of the opinion that no grounds are made out for restraining the bank from taking over of the physical possession of the properties in question.

This  Tribunal  is,  therefore,  of the  opinion  that  there  is  no infirmity or illegality in the impugned order passed by Learned DRT and the appeal is, therefore, dismissed.

File be consigned to record room.

Announced on this 29th April, 2024.