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I.A. No.554/2024
This is an application seeking condonation of delay of 15 days in filing the appeal. The order against the present appeal has been filed is of 06.04.2024 and the present appeal has been filed on 20.05.2024.
For the reasons stated, the application is allowed and the delay of 15 days in filing the appeal is condoned.
Appeal No.156/2024
The appellant has come in appeal aggrieved against the order dated 06.04.2024 passed by the Ld. DRT-II, Delhi whereby appellant's S.A. was dismissed.
Appellant has challenged the order on the ground that the appellant is in possession of the premises as a tenant and is staying there since 2011, i.e. before the date of mortgage of the property. It is alleged that the Ld. DRT has failed to consider the fact that the appellant was not made a party before the Ld. CMM in the proceedings under Section 14 of the SARFAESI Act. It is submitted that the appellant intends to purchase the property in question for fair market value and for this purpose he had approached the respondent bank several times. However, the respondent bank neither showed to the appellant the valuation of the property nor any document to conclude the sale on behalf of the appellant. It is prayed that the order passed by the Ld. DRT being illegal be set aside in the interest of justice.
Ld. counsel for the respondent, on the other hand, has contended that there is no illegality or irregularity in the order passed by the Ld. DRT.
I have considered the rival submissions and have gone through the record. The appellant is neither borrower, nor guarantor, nor mortgagor. He claims himself to be a third party/tenant in possession of the property in question. According to him, the tenancy in question commenced in the year 2012 and thereafter the lease was extended from time to time and is subsisting till date. It is submitted that though the appellant was a tenant of the property in question, no intimation was given to him by the bank while creating the mortgage. It is submitted that the respondent no.1 bank has concealed the factum of alreadyexisting tenancy before the Ld. CMM.
Ld. counsel for the bank, on the other hand, has submitted that the father of the applicant, who was the tenant, had given a no-objection for mortgaging the property in question to respondent no.1, Kotak Mahindra Bank and he has categorically stated that the property is owned by one Mrs. Vijay Kalia. He had also given an undertaking that since Mrs. Vijay Kalia intended to avail loan, he would not hinder any move by the bank to enforce such mortgage in any way nor he would contest any litigation pursued by the bank against the mortgagor and borrower to enforce such mortgage. It is submitted that he had also undertaken to cooperate to make complete the sale of the property whether effected through the court or any tribunal when such need arises.
Respondent no.3, who had availed the loan in question, defaulted in the repayment of the principal and interest to the bank, resulting in issuance of the demand notice by the bank to respondent no.3 to make repayment of a sum of Rs.25,51,09,036.77 due as on 14.12.2018. The appellant has claimed himself to be a lessee of the premises in question.
The Ld. DRT has dealt with this aspect in detail and has held that though the appellant has filed the copy of the lease deed dated 01.10.2012, however, it is an unregistered document and, therefore, cannot be read into evidence. It was, therefore, held that it does not create any right in favour of the appellant. The Ld. DRT has further gone through the record and observed that the appellant has wrongly alleged that he was paying electricity and water bills, for the reason that these bills were being issued in the name of Mrs. Vijay Kalia. Therefore, on the basis of these bills, it cannot be presumed that the appellant is the lessee of the property in question. In the opinion of this Tribunal, there is no illegality on this finding of the Ld. DRT.
This Tribunal is also in agreement with Ld. DRT where it has observed that since the appellant has failed to prove he is a tenant of the property in question, he cannot take benefit of the judgment of the Hon'ble Supreme Court in the case of Harshad Govardhan Sondgar Vs. International Assets Reconstruction Ltd. & Ors.. (2014)6 SCC 1.
The appellant has submitted that respondent bank has not filed the original title deeds deposited by the borrower/mortgagor before this Tribunal and, therefore, it cannot be said that a valid mortgage was created by the borrower in favour of the bank. Ld. counsel for the bank, on the other hand, has submitted that a major fire broke out in the locker of the basement of Stock Holding Corporation's office in Mumbai on 11.12.2017 where the respondent bank in the ordinary course of business stores the original documents pertaining to various loan accounts maintained by it, including that of the respondent no.3, and the fire destroyed these documents, and an FIR in this regard was also registered. In the opinion of this Tribunal, since the original documents got destroyed in the fire, the Ld. DRT was, therefore, right in holding that these could not be produced because of the above reason. Moreover, this Tribunal is of the opinion that the appellant being not the borrower cannot challenge the mortgage.
Ld. counsel for the appellant has next submitted that neither he nor his father was made party in the application filed by the bank under Section 14 of the SARFAESI Act before the Ld. CMM.
Ld. Sr. counsel for the respondent states that there was no need to make the appellant or his father as party in the aforesaid application as there was no legal tenancy in the property. Ld. Sr. Counsel further submitted that an affidavit was filed before the Ld. CMM along with the undertaking given by the father of the appellant that he has no objection in case the property in question is mortgaged by the owner and that he will not create any hindrance in case the bank proceeds to enforce its mortgage upon failure of the borrower to repay the loan availed of.
In view of the above fact, the plea of the appellant that the fact of his tenancy was not disclosed before Ld. CMM, therefore, cannot be accepted.
Ld. counsel for the appellant has next submitted that the appellant is ready to purchase the property by paying the fair value of the same. However, in the opinion of this Tribunal, since the appellant is neither the borrower nor guarantor or mortgagor, he cannot claim any right to purchase the property in question.
In view of above discussion, it is clear that the appellant is unable to prove that he is the lessee in the premises in question. The document on record reveals that his father was a tenant in the property in question and had given an undertaking to the bank that he had no objection if the property in question was mortgaged and that he would not interfere with any move by the bank to enforce its mortgage in case of failure by the borrower to repay the loan and, thus, he has no right to continue in the premises which stands mortgaged with the bank and where there is default in repayment and respondent bank is enforcing its right to claim the outstanding dues.
In view of the detailed discussion, this Tribunal is of the opinion that no grounds are made out to interfere in the order passed by the Ld. DRT. The appeal is, therefore, dismissed.
File be consigned to record room.