Nisha Kapoor vs Jain Cooperative Bank Ltd.

P.K. Bhasin, Chairperson

The appellant claiming herself to be the owner of third Floor of property no. 72/2, Krishan Kunj Extension, Khasrano. 54/2, Gali No. 4 Laxmi Nagar, Delhi-110092(hereinafter to be referred as 'the property in question') having purchased from one Ms.Babita om 8.5.16 for, filed a Securitisation Application(S.A) under Section 17(1) of the SARFESI Act when the respondent bank wanted to auction it claiming it to be its secured asset alongwith the second and third floors(without roof rights) having been mortgaged in its favour by one Ashu Kumar, a member of respondent bank, to secure the repayment of Rs. 17.50 lakhswhich had been given to him and had not been repaid. The property is question already stands sealed by the respondent bank and first floor and second first floors have been sold by bank.

The S.A. filed by the appellant has been dismissed by DRT. The facts of the case have been noted by the DRT in its order dated 28. 11.2019. To avoid repetition of facts the impugned order of DRT can be re-produced here. It reads as under:-

"1. This is a securitization application (for brevity, the SA) filed by the applicant under Section 17 of the SARFAESI Act against the impugned Notice dated 04.09.2018 issued by Receiver Sh.SharfuddinZakaria, Advocate in respect of property in question i.e. Third Floor, 72/2 KrishanKunj Extension, Khasra No. 54/2, Gali No. 4 Laxmi Nagar, Delhi-110092.

The brief facts of the case are that the applicant is the lawful owner of demised property purchased by her on 8th May, 2016 from Ms. Babita. In the month of January, 2018 the respondent bank pasted one Notice dated 20.12.2017 in front of the demised premises issued in the name of some Mr. AshuKumar (not known to the applicant) that he took loan of Rs. 17.50 lakhs from the respondent bank on 28.03.2017 vide Loan Reference No. 005007048371/20033 against the property situated at First Floor, Second Floor and Third Floor of 72/2 Laxmi Nagar, Delhi-110092, whereas default amount written as Rs. 2,19,859/-. After receipt of the said notice the applicant sent reply dated 11.01.2018 to the respondent bank inter-alia informing the Bank that she is the real owner of demised property and that she had neither taken any loan from respondent bank nor given any guarantee against any loan and requested the bank to withdraw the notice qua demised property. The applicant also lodged police complaint with ShakarpurPolice Station on 16. 01.2018. On 11.09.2018 notice dated 04.09.2018 was pasted on the wall of the property in question wherein it was stated that Mr. SharfuddinZakaria is the Receiver who will take possession of the property in question from the applicant. Applicant further submits that the respondent bank managed to get some order dated 07.05.2018 from Ld. CMM, Ms. ShivaniSharma, EastDistt. Karkardooma, Courts, Delhi on concocted and misleading facts without disclosing material fact that the applicant is the lawful owner of the demised property on which receiver has been appointed. Hence, this instant SA.

Notice was issued to respondent. Respondent bank has filed its reply.

In its reply, the respondent bank submits that the instant application of the applicant under reply are wrong, incorrect and untenable in law as well as the facts of the present case and denied in entirety. It is being submitted that the applicant has filed a bogus application against the respondent bank seeking set aside of the notice of Receiver dated 04.09.2018 in respect of the property in question. Respondent bank further submits that the applicant has bought the said property from one Ms. Babita through Registered GPA dated 08.06.2015 who in turn bought the said property from one Ms. NillimaRai through a registered GPA dated 18.06.2015. However, applicant has till date neither impleaded nor moved an impleadmentapplication of the said two material and necessary parties being Smt. Babita and Ms. NillimaRai to prove her case. The respondent bank further submits that there is a connivance and conspiracy amongst the Applicant. Mr. AShu Kumar (Borrower of the Respondent), Ms. Babita and Ms. NillimaRai. The moment the loan of Sh. Ashu Kumar turned NPA Sh. Ashu Kumar maliciously in order to defeat the legitimate claims and dues of the respondent bank, caused the applicant to prefer the instant application to stall the entire process of the respondent undertaken under the SARFAESI Act to take over the said property. The respondent has bonafide apprehension about all the aforementioned parties being in hand in gloves with the applicant to cause losses to the respondent bank and defeat its legitimate claims. It is further submitted by the respondent bank that respondent is in possession of a registered sale deed in respect of the property in question in the name of Mr. Ashu Kumar who had availed credit facilities by mortgaging the said property, however, applicant claims her right through a registered GPA, therefore, the claim of the applicant of being the owner of the said property is nothing but an eyewash and to defeat the legitimate claims of the respondent bank. Respondent bank further clarified that the controversy regarding the said property being not in J Extension as mentioned in the sale deed and rather being at KishanKunj is a means to thwart the claims of the Respondent in as much as the title chain of the said property clearly has no dispute till the erstwhile owner being NillimaRai. As per sale deed in possession of the respondent the owner being Ashu Kumar had purchased the said property vide registered sale deed from Ms. NillimaRai and it is the same property which NillimaRai has purchased from the erstwhile owner being RoshanLal and Harish Chander vide unregistered GPA dated 20.05.1985. Moreover, it is not the case of the applicant that the said Ms. NillimaRai has two different properties one in J Extension and one in KishanKunj. Also vide order dated 03.08.2018 when similar controversy got raised before the Ld. CMM who had appointed the Receiver for affixation of notice, in the said order it is clearly directed that the Receiver while affixing of notice on the property in question should verify the correct particulars regarding the address of the property from the owner of the property who resides at 4th Floor of the property in question, therefore, the contentions regarding the address being wrong is false, bogus and denied. In para wise reply all the allegations were totally denied on behalf of the respondent bank and prayed that the applicant has no rights, title & interest over the property in question and prayed for dismissal of the present Securitization Application.

In order to prove her case, the Applicant herein filed its rebuttal to the reply filed by the respondent bank, evidence in the form of Affidavit and exhibited the documents. However, applicant failed to pay the part amount of Rs. 3.00 lacs to the respondent bank as directed by DRT-III, Delhi vide order dated 20.09.2018 (as the PO-II, Delhi was on leave).

The respondent bank has filed its evidence by way of affidavit of Shri Ajay Kumar Saxena, Authorized Representative vide Board Resolution dated 16.03.2019 of the respondent bank and exhibited the documents as Ex. RW-1 to Ex. RW-6.

I have heard the Ld. Counsel for the applicants and respondent bank and perused the record.

Now the point for consideration is (i) whether the securitization applicant is the owner of the property in question (ii) whether the respondent bank has got any right to get the property in question and (III) entitled for restraining the respondent bank seeking setting aside of the notice of Receiver dated 04.09.2018 in respect of the property in question, as prayed for.

The contention of the applicant is that she purchased the property in question on 8th may, 2016 from Ms. Babita who in turn had purchased the same from one Ms. NeelimaRai. In the month of January, 2018 the respondent bank pasted one notice dated 20.12.2017 in front of the demised premises issued in the name of Mr. Ashu Kumar (not known to the applicant) that he took loan of Rs. 17.50 lakhs from the respondent bank on 28.03.2017 vide Loan reference No. 005007048371/20033 against the property situated at First Floor, Second Floor and Third Floor of 72/2Laxmi Nagar, Delhi-110092, wherein defaulted amount written as Rs. 2,19,589/-. After receipt of the said Notice the applicant sent reply dated 11.012018 to the respondent bank inter-alia informing the Bank that she is the real owner of demised property and that she had neither taken any loan from respondent bank nor given any guarantee against any loan and requested the bank to withdraw the notice qua demised property.

Record reveals that the applicant purchased the property in question on the basis of GPA & other documents but not with Registered Sale Deed. The perusal of the said GPA dated 08.05.2016 is not for consideration and it is only a GPA to act on behalf of Ms. Babita (the seller of the property in question to the security applicant). The security applicant then filed all notorised copies of Agreement to sell dated 8. 05.2016, the possession letter, Payment Receipt, Affidavit, Agreement to sell, will Deed and possession letter which do not convey any right in favor of the applicant, as per law. Thus, the security applicant has not been able to establish her title over the property in question through documents EXs. PW-1/1 to Ex. PW-1/4 and her possession as well over the same. Further the security applicant has not impleaded the seller from whom she purchased the property in question to show her bonafide.

As against the same, the respondent bank lent loan to one Mr. Ashu Kumar (who is not impleaded by the security applicant herein). The perusal of the documents filed by Mr. Ashu Kumar while taking loan reveals that he had purchased the property on 7th December, 2015 from the same Ms. Neelima Jain vide Registered Sale Deed duly registered with the office of the Registrar/Sub Registrar, SR VIIIA, PreetVihar, Delhi against consideration and submitted chain of documents i.e. GPA of Mr. RoshanLal in favour of Ms. NeelimaRai dated 20.05.1985, Agreement Deed between the said Mr. RoshanLal and Ms. Neelima Jain dated 20. 05.1985 and other relevant documents related to the property in question which are exhibited Ex. RW-1 to RW-5. However, the documents filed and exhibited by the security applicant would reveal that Ms. NeelimaRai (who is not impleaded by the applicant herein) has earlier sold the property in question to one Ms. Babita and Ms.Babita sold the property in question to the present security applicant on GPA basis. The respondent bank resisted the application and contended that there is no locus standi for the applicant to institute the present SA. On the other hand records reveals that the respondent bank while granting credit facility to Mr. Ashu Kumar, obtained the registered sale deed dated 08.12.2015 who mortgaged the same with the respondent bank to secure the credit facility. The said sale deed is duly executed by Ms. NalliniRai (who also sold the property in question to Ms. Babitaon GPA basis). The said sale deed is duly registered as document no. 1262 in Book no. 1, Volume 978 pages 161 to 165 dated 27.03.2017 with the Sub Regsitrar-VIIIA, PreetVihar, Delhi in favour of Mr. Ashu Kumar, borrower of the respondent bank. In the sale deed dated 07.12.2015 there is no reference to the alleged Agreement to sell, Deed of Will or possession letter. Meanwhile, it seems that the seller of the property to the security applicant in question i.e. Ms. Babita who sold the property to the applicant have no clear title in her favour. Sale Deed dated 07.12.2015 further reveals that the property in question was sold by the said Ms. NeelimaRai on the basis of registered sale deed whereas the same property was sold to Ms. Babita on the basis of GPA, who in turn sold the same to the present Applicant Ms. NishaKapoor on the basis of GPA. In the present case the mortgage created by Mr. Ashu Kumar with the respondent bank is a valid mortgage as such the respondent bank cannot be found default while granting the loan in favour of Mr. Ashu Kumar, without notice of the alleged GPA executed by Ms. Babita/Ms. NalliniRai in favour of the present applicant.

Moreover, the Hon'ble High Court of Delhi In CS (OS) No. 1290/2012 titled SumanLataVs Bank of India and Anr. decided on 05th October, 2015 at para 4 of the judgement, has held that ''According to the registered sale deed, the property stands transferred in the name of plaintiff'' (here Mr. Ashu Kumar, the borrower of the respondent bank has been in possession of the property in question since the year 2015 through Registered Sale Deed with the Registrar, PreetVihar, Delhi and other chain of documents) Record further reveals that the security applicant has not impleaded the seller of the property to her from whom she purchased the property in question, which is evident from the present SA and show her intention.

In view of the facts & circumstances and documents available on record, I am of the considered opinion that the security applicant has not been able to prove her title and possession over the property in question on the basis of registered chain of title which she has produced, as discussed earlier whereas the respondent bank accepted the mortgage in respect of property in question from Mr. Ashu Kumar on the basis of the registered sale deed executed by Ms. NeelimaRai, the original seller of the property in question. Ms. Babita purchased the property from Ms. NeelimaRai on the basis of GPA and then Ms. Babita sold the property in question to the security applicant on the basis of GPA is fraud played by the seller of the property to the security applicant. I do not find balance of convenience in favour of the applicant and the applicant is not entitled for any relief, restraining the respondent bank from taking the physical possession of the property in question and the same is declined. The SA is dismissed with cost and is in favour of the respondent bank. File be consigned to record room."

From a reading of this order of the DRT it is clear that appellant purchased the property in question from one Babita on the basis of GPA dated 8.5.16 and Babita purchased the same from one NillimaRai on the basis of GPA etc. So, it is common case of the parties that NillimaRai was the owner. Now, same NillimaRai sold the property vide a registered sale deed to Ashu Kumar, who is the borrower of the respondent bank who had secured loan from the respondent bank by mortgaging by executing a mortgage deed in respect of the bigger property of which the property in question is part i.e. third floor.Thus, secured interest stood created in favour of the bank the moment a mortgage deed was executed by Ashu Kumar. Sale deed 8.12.2015 was executed in favour of AshuKumar and thus titled stood vested in him and just because Nillima Rai had executed GPA infavour of Babitabefore sale in favour of Ashu Kumarthat would not make sale by registered sale deed in favour of Ashu Kumar illegal. It will be for appellant to settle the score with Babita or Nillima Rai whosover she thinks responsible for this chaos. In the facts of this case right of bank as a secured creditor cannot be defeated just like that.

Lot was argued by the learned counsel for the appellant orally as well as in his written submissions, and in fact that was the main argument, that the property mortgaged was different from the property in question of which the appellant claims to be the owner. This argument is baseless because Ashu Kumar purchased the entire property from Nillema Rai and the appellant claims that same Nillema Rai sold the property in question(3rd floor) by way of GPA sale to Babita who in turn sold the same to the appellant. Thus, there can be no dispute about the identity of the mortgaged property.

I, therefore, do not find any merit in this appeal and the same is rejected.