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Judgment
P.K. Bhasin, J
This appeal coming up before this Tribunal demonstrates how cleverly people can get crores of rupees as loan from Banks and then succeed in avoiding repayment of the money to the Banks when the same becomes repayable and when the Banks initiate steps to recover their money by resorting to the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) how cleverly and by misleading the Tribunals constituted for speedy recovery of Banks' dues, these kind of people succeed in getting recovery process stalled. The impugned order passed by Mr. Ashish Kalia learned Presiding Officer of the Debts Recovery Tribunal-III, Delhi (DRT) shows how casually the matter has been taken while stalling the recovery process initiated by the respondent Bank for recovery of crores of rupees and not only that the guarantor of the loan, appellant herein, further wants to cement the order of the DRT so that the Bank is unable to succeed in recovering its money which, in fact, is public money.
The appellant filed a petition under Section 17 of the SARFAESI Act against the respondent No. 1 Bank which had granted financial facility to respondent No. 2 herein to the tune of Rs. 370 lacs on her guarantee in the form of creation of an equitable mortgage of her residential property in Shalimar Bagh in Delhi by depositing the title deed of that property with the Bank. Respondents 3 and 4, Directors of borrower Company also gave personal guarantees for the repayment of the loan by the borrower Company. The borrower having failed to repay the loan amount the Bank initiated steps for its recovery against the borrower as well as the appellant/guarantor/mortgagor as provided under Sections 13 and 14 of the SARFAESI Act sometime in January, 2015.
The borrower and the guarantors, including the appellant herein, then approached the Bank for some kind of settlement and it is common case of the parties that settlement was arrived at between the parties, as communicated to one of the directors of the borrower Company, Mr. Rajesh Gupta (respondent No. 3 herein) by the Bank vide its letter dated 25.4.2015 contents whereof are reproduced as under:
"Date: 25.4.2015
Mr. Rajesh Gupta (Director)
M/s. HRD Metals Pvt. Ltd.
BM-2, Ground Floor
Shalimar Bagh East
New Delhi-110088
Reg: OTS proposal of Ms HRD Metals Pvt. Ltd.
This is with reference to the OTS proposal of M/s. HRD Metals Pvt. Ltd. We wish to inform you that our higher authorities has approved the one-time settlement proposal of HRD Metals Pvt. Ltd. On the basis of the request made by the company on the following terms and conditions as under:
Upfront amount of Rs. 12.00 lacs deposited by the party will be deposited by the party immediately (already deposited by the party).
Rs. 90.00 lacs will be deposited by the party within 7 days of the receipt of this approval. On receipt of Rs. 102.00 lacs (i.e. Rs. 12.00 + Rs. 90.00), Bank will release the title deeds of the IP situated at Kucha Mahajani, Chandni Chowk.
Balance OTS amount of Rs. 188.00 will be paid by the party within 3 months of conveying approval for which PDC will be submitted by the party in advance.
OTS agreement in respect of debt due to be is to be signed by the borrower and/or guarantors.
Supplementary Agreement will be obtained from the party to keep the action initiated by the Bank under SARFAESI Act in abeyance.
Default in payment of one instalment shall render the OTS as failed and all reliefs and concessions shall lapse automatically and Bank will be entitled to recover the entire dues as per suit filed.
No Dues Certificate will be issued along with the title deeds of the IP situated at East Shalimar Bagh, Delhi on receipt of entire OTS amount.
In view of the above, you are requested to deposit the amount of Rs. 90 lacs immediately and visit the branch for execution of OTS documents.
Sd/-
Chief Manager"
The appellant's grievance is that even though she made the payment of Rs. 1.02 crores as per the aforesaid settlement immediately after the settlement had been arrived at, but the Bank despite that refused to release the title deeds of her property which it was claiming to have been mortgaged with it as security for the repayment of the Bank's dues payable by the borrower Company, respondent No. 2 herein, M/s. HRD Metals Pvt. Ltd., and to release the property from mortgage. It is also her case that, in fact, she never had mortgaged that property but the officials of the Bank had obtained her signatures on some blank documents and forged the guarantee documents etc. by misusing those blank documents. Since the Bank gave her a notice under Section 13(2) of the SARFAESI Act, she approached the DRT with a petition under Section 17 of the SARFAESI Act in which interim relief against her dispossession from her property which the Bank was claiming to have been mortgaged in its favour, was also sought. The Tribunal, after issuing notice of that petition to the Bank and hearing the Counsel for both the parties, passed the impugned order dated 20.11.2015 which reads as under:
"The learned Counsel for applicant submits that the applicant is ready and willing to settle the matter with the Bank by paying the legitimate dues of the Bank and prayed that Bank may be restrained from conducted the auction of the property in question.
Notice was issued the learned Counsel for respondent put appearance and vehemently opposed to grant any relief to the applicant as sufficient time has already been granted to the applicant to pay the dues of the Bank but she fails to pay the same.
After hearing both sides at length, perusing the records and in the interest of justice one more opportunity is granted to the applicant to save her property by paying the dues of the Bank. Thus, I hereby direct the applicant to deposit with the respondent Bank a sum of Rs. 25.00 lacs within 30 days out of which a sum of Rs. 5.00 lacs shall be deposited within one week and thereafter a sum of Rs. 20.00 lacs shall be deposited within three weeks.
Till then, the Bank may hold its hand in regard to put the property in question on auction.
It is made clear that in case of single default, the respondent Bank shall be at liberty to proceed further in accordance with law.
In the meantime, the respondent Bank is directed to file its reply with advance copy to other side before the next date of hearing.
Matter be listed on 19.1.2016 for further proceedings.
Dasti
Sd/-
(Ashish Kalia)
Presiding Officer
DRT-III, Delhi"
The appellant felt aggrieved even by the said interim relief granted to her by the DRT and filed the present appeal alleging that she could not have been directed to make any further payment to the Bank as directed in the impugned order since as per the settlement arrived at with the Bank she had already complied with the requirement of payment of Rs. 1.02 crores before becoming entitled to get back the title documents in respect of her property.
As far as the Bank is concerned, its case is that the terms of settlement were not fully complied with by the parties and, therefore, the Bank was constrained to rescind the settlement and, consequently, it had initiated fresh steps to take over the possession of the appellant's property mortgaged with the Bank. It was claimed by the Bank that before clearance of the Bank's dues in full in terms of the aforesaid settlement letter dated 25.4.2015, respondent No. 3 herein, who appears to be the son of the appellant, sold the property which had also been mortgaged in favour of the Bank, without any permission of the Bank and that had resulted in deprivation of the Bank of the mortgaged asset.
The appellant had not said anything about the grievance of the Bank that respondent No. 3, who was also one of the guarantors/mortgagors, had sold the mortgaged property without the permission of the Bank and, thereby, had deprived the Bank of its secured asset. Prima facie, this action of respondent No. 3 herein shows that the borrower as well as the guarantors, who all appear to be related to each other, had no intentions to honour the settlement and wanted to get rid of their liabilities merely by making payment of a sum of Rs. 1.02 crores as against total settlement amount of Rs. 290 lacs. By sale of mortgaged property, even if it was by co-guarantor, before fulfilling terms of settlement, the appellant, prima facie, could not claim any benefit under the settlement because the settlement was with the borrower as well as the guarantors and before title deeds of the appellant's property could be released to her, for which purpose no deadline was fixed, her co-guarantor clandestinely disposed of his property and prima facie that transaction appears to have been carried out in collusion of all the parties to the loan transaction and as a pre-planned decision. For the aforesaid reasons, I do not find any merit in this appeal and, therefore, the same is dismissed with cost of Rs. 20,000/-.