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Judgment
Vide this order I shall dispose of Misc. Appeal no. 73/2003 filed by the appellant against the impugned order dt. 31.03.2023 passed by Ld. PO, DRT-I, Delhi, whereby interim relief was rejected by Ld. DRT. The impugned order runs as under:-
31.03.2023 Item no.6
Present: Mr. Jaspal Singh, Ld. Counsel for the applicant. Ms. Seema Gupta, Ld. Counsel for the respondent bank.
This matter is taken up by this Tribunal through video confereneing.
The present securitization application has been filed by the applicants praying therein to restrain the respondent bank/ court receiver from taking physical possession of the property bearing no.C-19/1, (New no. 90 I -E), measuring area 100 sq.yds. out of khasra no.204, Village Ghonda Chauhan Banger, Rishi Kardain Marg, Gali no.6, Chauhan Banger, Shaltdara District, Shalidara, Delhi-110053 (hereinafter referred as the property in question) and also prayed to restrain the respondent bank from auctioning, if any, the property in question.
It has been submitted on behalf of the applicant that the applicant is residing in the property in question since the year 2002 and the applicant is the bonafide owner of the entire first and second floor portions of the property in question by virtue sale deed dated 24.10.2002, which was registered as document no. 2810 in additional book no. I, volume no. 3418 on pages 94 to 100 dated 31.10.2002 in the Office of Sub-Registrar, Delhi. It has further been submitted that the respondents no.2 and 3 are elder brother and sister in law (bhabi) of the applicant and the respondent no. 2 had sold the first and second floor of the property in question to the applicant vide sale dated 24.10.2002. It has further been submitted that the applicant has nothing to do with the loan of the respondent no.! FI and the entire actions of the respondent bank are bad in law, accordingly, it has been prayed for restraining the respondent bank / court receiver from taking physical possession of the property in question.
On the other hand, Ld. Counsel for the respondent no. 1 Fl has vehemently opposed the submission of the Ld. Counsel for the applicant. She submitted that the entire property in question is mortgaged with the respondent no. 1 bank by Mahmood Qureshi i.e. respondent no. 2 for securing the ODP limit of Rs.25.00 lakhs granted by the respondent no. 1 bank to the respondent no.3. It has further been submitted that in order to secure the aforesaid loan facility the respondent no. 2 had delivered and deposited the original title deeds including original sale deed dated 30.09.1996 and release deed dated 23.10.2002 (release deed registered as and the release deed is registered as document no. 2692 in book no.3414 on pages 126 to 129 dated 23.10.2002 in SR-Delhi). It has further been submitted that the respondent no.2 is having valid mortgage and the title documents of the applicant are bad in law and the present seeuritization application is also barred by limitation. It has further been submitted that the respondent bank has taken all the measures under the SARFAESI Act and the notices under Sections 13 (2) and 13 (4) have been served upon the borrower/mortgagor/guarantor through all modes and after declaring the account as NPA the borrower/mortgagor/guarantor have not cleared the entire dues of the respondent no. I Fl. It has further been submitted that there is clear cut connivance of the applicant and the respondents no.2 & 3 just to defraud the respondent no. bank. Accordingly, it has been prayed for rejection of the interim prayer of the applicant.
Heard the rival contentions of both the parties and perused the records.
In the present matter, both the applicant as well as respondent bank are claiming their respective charge over the property in question and the applicant is claiming as the owner of the property in question by virtue of sale deed dated 24.10.2002, whereas the mortgagor of the respondent no.1 bank is the owner of the by virtue of Release Deed dated 23.10.2002 and Sale Deed dated 30.09.1996 and the property in question of the property in question was mortgaged with the respondent bank in the year 2011 by the respondent no.2 by depositing the complete chain of title documents. Apparently, Smt. Sugra Bcgum w/o Late Shri Nazir Ali sold the entire property in question to her sons namely Shri Mehmood Qureshi and Shri Hazi Ayub, both sons of Late Shri Nazir Ali vide sale deed dated 30.09.1996 and thus these two brothers became the joint owners of the property in question, each having 1/2 undivided share in the said property. Thereafter, Shri Hazi Aub son of Late Shri Nazir Ali released his half share in the said property in favor of other brother/owner namely Shri Mehmood Qureshi s/o late Shri Nazir Ali vide Release Deed dated 23.10.2002 (release deed registered as and the release deed is registered as document no. 2692 in book no. 3414 on pages 126 to 129 dated 23.10.2002 in SR-Delhi) and thus Shri Mehmood Qureshi s/o late Shri Nazir Ali became the owner of the entire property. Thereafter, Shri Mehmood Qureshi s/o late Shri Nazir Ali sold the first floor portion of the property in question to his brother i.e. applicant herein namely Mr. Maqsood Ahmad s/o late Shri Nazir Ali vide sale deed dated 24.10.2002 (sale deed is registered as document no. 2810 in additional book no. 1, volume no. 3418 on pages 94 to 100 dated 31.10.2002 in the Office of Sub-Registrar, Delhi) vide which the applicant is claiming his ownership on the property in question. Thereafter, Shri Mehmood Qureshi s/o late Shri Nazir All mortgaged the entire property with the respondent bank in the year 2011 for availing the loan facility by the respondent no. 3, who is also wife of Shri Mehmood Qureshi s/o !ate Shri Nazir Ali. The above transactions are between the mother and sons and it appears that there is collusion and connivance between all the family members i.e. mother, brothers and wife of the guarantor/ mortgagor to defraud the respondent bank by obtaining the loan facility from the respondent bank by Shri Mehmood Qureshi s/o late Shri Nazir Ali and his wife. Further, it has not been alleged on behalf of the applicant and respondents that there is dispute between the brothers regarding property in question and even no police complaint has been filed by the applicant against the respondent no. 2, who has mortgaged his property with the respondent bank. Apparently, there is default on the part of the borrower/guarantor/ mortgagor in paying the dues of the respondent Fl and as per the respondent FL, notices under Section 13 (2) and 13 (4) of the SARFAESI Act have been duly served upon the borrower/mortgagor/ guarantor through all modes and after declaration of the account as NPA, the borrower has not cleared the dues of the respondent Fl till date.
In the above facts and circumstances of the case, this Tribunal is of the view that no prima facie case is made out in favour of the applicant and balance of convenience also does not lie in favour of the applicant for granting interim relief. Rather, the respondent bank of course would suffer irreparable. loss in case the interim relief is being granted in favour of the S. applicant as the respondent bank has to recover amount of more than Rs.30.00 lakhs in the present account. Accordingly, the prayer of the applicant for restraining the respondent bank/ court receiver from taking physical possession of the property in question and auctioning the property in question, stands rejected. All other issues shall be decided after filling reply, rejoinder and evidences by the parties.
List this case on 02.05.2023 before the Ld. Registrar for completion of pleadings.
(GOVIND BALLABII SI IARMA)
PRESIDING OFFICER,
DRI-1, Delhi"
Ld. Counsel for the appellant has challenged the above order on the ground that he is owner of the first and second floor of the property in question by virtue of sale-deed. It is submitted by Ld. Counsel for the appellant that appellant Mr. Maqsood Ahmed has purchased the said property from respondent no.2 Mr. Mehmood Qureshi on 24.10.2002 vide registered sale-deed. It is submitted that respondent no.2 and 3 have shifted from the said property and presently residing at the different address. It is alleged that respondent no.1 Bank has committed fraud in collusion with the respondent no.2 Mr. Mehmood Qureshi as it has sanctioned a loan over the property in question somewhere in year 2011 which was in fact in the name of appellant since 24.10.2002. It is further submitted that feeling aggrieved by the possession notice dated 24.02.2023, the appellant has sent a notice to the respondent no.1 Bank and respondent no.2 and prayed to restrain the Bank from taking possession of the premises in question.
It is further submitted that appellant has taken recourse to all the remedies civil and criminal against all the respondents after coming into his knowledge the above facts. The appellant has also lodged one police complaint against respondent no.2 and 3 and also filed a civil suit before the Ld. Sr. Civil Judge, Delhi.
It is lastly prayed on behalf of the appellant that since a fraud has been committed by the respondent Bank in connivance with the respondent no.2, the Respondent no.1 Bank be restrained from taking over the possession of the premises in question.
Ld. Counsel for the respondent, on the other hand, has submitted that property was duly mortgaged by Mehmood Qureshi i.e. respondent no.2 in the year 2011. In this regard, he has also deposited original title deeds with the Bank. It is further submitted that a valid mortgage was created and the appellant has filed the present appeal in connivance with respondent no.2 and 3 just to defraud the respondent no.1 Bank.
Ld. Counsel for the respondent Bank further submitted that appellant has alleged that he has to come to know about the loan over the mortgaged property when the possession notice dated 24.02.2023 was pasted on the said premises. Ld. Counsel for the respondent bank further submits that appellant had the knowledge about the notice of symbolic possession which was taken on 17.11.2021 and he has deliberately not taken any measures for redressal of his grievance for more than one year. It is, therefore, prayed that appeal is barred by limitation and also needs to be dismissed on the ground that it has not come to the Tribunal with clean hands.
Ld. Counsel for respondent no.2 and 3 has submitted that though they had sold their property in the year 2002 to the appellant, however, since they were in need of money, at the suggestion of Bank Manager, they had deposited the earlier title deeds with the Bank and obtained loan. They are repaying the loan and have deposited a sum of Rs. Six lacs by now. He has, therefore, prayed that he may be allowed to deposit remaining amount.
I have considered the rival submissions. The perusal of the record reveals that respondent no.2, in fact, has deposited original title documents with respondent Bank and copy of the same has also been placed on record by the Ld. Counsel for the respondent Bank. It may be clarified that since the time was short, therefore, the Ld. Counsel for the Bank could not file the reply to the present appeal but, has placed on record the copy of its reply which was filed by her before Ld. DRT-1 in S.A. In the opinion of this Tribunal prima facie no case is made out in favour of the appellant for the reason that appellant has not agitated the issue of his ownership and was silent despite the fact that possession notice was affixed at the premises on 17.11.2021 and he has only woken up after about more than 1 year and filed the SA before the Ld. DRT-I, Delhi, in which interim relief has been declined vide detailed impugned order 31.03.2023. In the opinion of this Tribunal, the property stands validly mortgaged as the complete chain of documents have been deposited with the Bank by respondent no.2. The said chain of documents has also been described in detail by the Ld. PO, DRT-1, Delhi in the impugned order. This Tribunal does not find any irregularity or illegality in the same. It is also not in dispute that there is default on the part of borrower i.e. respondent no.2 in depositing the loan amount.
In view of the above discussion, no grounds for interim relief are made out at this stage as the respondent Bank has to recover more than Rs. 30 lacs from the borrower. No ground are, therefore, made out to restrain the Court Receiver from taking physical possession of the premises in question, which is scheduled for today,The appeal stands dismissed. The Bank is, therefore, at liberty to take physical possession of the premises in accordance with law.
File be consigned to record room.