Satish Chand Goel vs Oriental Bank Of Commerce

S.N.H. Zaidi, J

The instant application has been filed by the appellants under Section 18(1) of the SARFAESI Act, seeking waiver of the deposit of amount for the entertainment of the accompanying appeal. The respondent Bank has opposed the application by filing reply to it.

I have heard appellant No. 1 and Mr. H.D. Talwani, the learned Counsel for the respondent Bank. The appellants/applicants have also filed synopsis of their written submissions qua that application.

The contention of the applicants in their written submissions is that they are neither the borrowers nor guarantors to any loan with the Bank and they had never signed any loan documents or mortgaged their House No. H-99, Ashok Vihar-1, Delhi by depositing its title deeds and their alleged signatures on the loan papers are forged and the title deeds of their house have also been forged/fabricated by the officers of the Bank, for which they are facing criminal trial before the competent Court and all the original documents/title deeds of the property are in the possession of the appellants/applicants. It has also been contended that the applicants have challenged the actions of the Bank by filing S.A. (No. 76/2012) before the Tribunal below, wherein factual aspects of the matter are to be decided by it on the basis of the evidence of the parties and the accompanying appeal has been directed only against that portion of the interim order dated 2.7.2012 whereby the Receiver/Bank has been restrained from proceeding further under the SARFAESI Act subject to deposit of Rs. 30 lacs by the appellants with the Bank as per the given time schedule, as the condition of deposit of amount does not apply to the appellants who have filed the S.A. not as the borrowers but as third party or aggrieved party. It has been pointed out that subsequent to the filing of this appeal the applicants have also filed W.P.(C) No. 4709/2012 before the Delhi High Court and the Hon'ble Court has observed in its order dated 6.8.2012 passed in that writ petition that: "We are inclined to accede to the request, taking into consideration the chain of title, prima facie, established by the petitioners, the originals of which have been shown to us in the Court, Not only that, in order to confirm the veracity of their original title documents, the petitioners have also obtained certified copies of the registered documents from the office of the Sub-Registrar which verify what the petitioners state". It has further been pointed out that the Hon'ble Court has accordingly suspended the condition imposed by the Tribunal below on the appellants for the deposit of the amounts only until this Tribunal examines the matter finally and takes a view.

Mr. Talwani, on the other hand, has submitted that as per the observation of the Hon'ble Supreme Court in Narayan Chandra Ghosh v. UCO Bank & Ors., IV (2011) SLT 229 : 11 (2011) CLT 355 (SC) : (2011) 4 SCC 548, deposit of the amount is mandatory for the entertainment of the appeal, in accordance with the requirement of the second proviso to Section 18(1) of the SARFAESI Act. He has further submitted that this Tribunal has also held in its order dated 3.2.2012 passed in Misc. Appeal No. 383/2011, Rajasthan Art Emporium v. Bank of India & Ors., that the requirement of the deposit as per the aforesaid proviso equally applies qua an appeal filed against the interim order. He also pointed out that as per the demand notice dated 22.7.2010 issued under Section 13(2) of the SARFAESI Act, an amount of Rs. 1,42,30,255/- was claimed as on 17.5.2010 and since the amount of debt has not been determined and the O.A. filed by the Bank is still pending disposal, the appellant/applicants are required to deposit 50% of the aforesaid amount for the entertainment of their appeal. According to Mr. Talwani, mere denial by the appellant/applicants that they are not the borrowers or they had not executed the loan documents, including the confirmation letter dated 5.3.2008 or the document pertaining to the deposit of original title deeds, perpetual lease deed of DDA favouring Mr. Lal Chand Prashar from whom the applicants claim to have purchased the property in question, besides the agreement to sell, GPA, SPA, affidavit, etc. and the Bank has also produced the copy of the conveyance deed executed by DDA favouring the applicants and copy of the equitable mortgage registration. Considering the submissions of the parties' Counsel and looking to the circumstances of the case, I am of the view that since the Hon'ble Delhi High Court, after looking to the chain of original documents of the property in question as well as its certified copies obtained from the office of the Sub-Registrar and finding a prima facie case in favour of the appellants/petitioners has put the deposit of the amount, as directed by the Tribunal below by the order impugned, on hold until this Tribunal finally examines the matter and takes a view in this appeal, therefore, there appears to be a strong prima facie case against the alleged equitable mortgage of the property in question, which raises serious questions about the existence of any security interest in favour of respondent Bank qua that property as well as qua the application of the provisions of the SARFAESI Act in the matter. These issues relate to disputed questions of facts which are yet to be decided in the S.A. by the Tribunal below and cannot be decided finally at this stage by this Tribunal without hearing the parties qua them. In view of the peculiar circumstances of this case, it would be expedient to keep the disposal of the instant application on hold for the time being until the Tribunal below dispose of the S.A. for which necessary direction may be given to it. The Tribunal below is accordingly directed to dispose of the S.A. within three months from the date a copy of this order is placed before it.

List the matter on 11.3.2014 for further orders.