Shalan Sakharam Patil & Ors vs Bandhan Bank Ltd

Ashok Menon, Chairperson

The Appellants have come in appeal impugning the order dated 06.08.2022 in Interlocutory Application (I.A.) No. 1270 of 2022 in Misc. Application (M.A.) No. 01 of 2021 in Securitisation Application (S.A.) No. 49 of 2022 on the files of the Debts Recovery Tribunal, Pune (D.R.T.) whereby the Ld. Presiding Officer appointed a Court Commissioner to partition the property in dispute by metes and bounds by assuring the suit property gets independent access. It is pointed out that the Appellants had no objection to the appointment of the Court Commissioner and therefore, a Commissioner was appointed and was directed to partition the suit property by metes and bounds and between the Applicants and Defendant borrower in the presence of both parties. The Commissioner was also directed to point out a place for separate entrances to both parties in suit property so that independent access will be available for both parties. There was also a direction to prepare the panchanama of the Commission in the presence of both parties. The sketch shows the partition and demarcation of the suit property and the adjoining property. The Appellants are aggrieved because the D.R.T. cannot pass an order directing partition of the property by metes and bounds.

The specific case of the Appellants in filing the S.A. which was allowed is that the Appellants are the exclusive owners of the property having an extent of 182 sq. mts. in plot No. 55 in survey No 7/1/A and his brother who is the owner of the other portion of a building having an extent of 147 sq. mts. had mortgaged that extent.

The Respondent bank claims that the entire extent of the property having a measurement of 329 sq. mts. was mortgaged to the bank by the brother of the Appellants and the Appellants contended that the mortgagor has exclusive right title and interest only on over a portion having an extent of 147 sq. mts. and that property of the Appellants. The S.A. was allowed and the bank was given the liberty to take only the portion of the property belonging to the mortgagor and directed the bank to restore the possession of the property covered by the sale deed of the Appellants to them. An application was filed as M.A. No. 01 of 2021 by the Defendant bank seeking to partition the property by appointment of the Commissioner by metes and bounds to ensure that the secured asset gets independent access and can be sold independently. The Ld. Counsel appearing for the Appellants made an endorsement that he has no objection to the appointment of the Commissioner subject to the expenses being exclusively met by the Defendant bank and consequent to that, the impugned order dated 06.08.2022 was passed by the Ld. Presiding Officer.

The fallacy of the order is that the D.R.T. has no jurisdiction to order the partition of property by metes and bounds. Particularly in an S.A. under the provisions of the Securitisation and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’, for short). The D.R.T. has no adjudicatory powers of a civil court. Even though the bank had asked for a partition of the property by metes and bounds the said request was a misnomer which could not have been acted upon by the D.R.T. There was nothing wrong in the appointment of the Commissioner to identify the property and separate it from the rest of the property.

The Ld. Counsel appearing for the Respondent bank submits that the appeal is not maintainable because it was a consent order and therefore, there is embargo under Sub-Sec. 2 of Sec. 22 of the Recovery of the Debts and Bankruptcy Act, 1993 (‘RDB Act’, for short) in entertaining the appeal when an order is passed with the consent of the parties. In the instant case, there was a complete lack of jurisdiction with the D.R.T. to pass an order for partition. What was asked for by the bank in their application was also not appropriate. What was essential was to identify the property belonging to the mortgagor exclusively and separate that property from the rest of the property belonging to the Appellants. The Ld. Counsel for the Appellants submits that there is a separate entry to the portion belonging to his brother and there would be no entrance for anybody entering that property from the road. The Commissioner appointed by the D.R.T. is only to demarcate that portion in a plan (sketch) to be prepared identifying the property which has been mortgaged to the bank with the entry into that property, so that, that portion of the property described in the plan/sketch could be dealt with the bank separately.

With  these  observations,  the  appeal  is  disposed  of  and  the Commissioner appointed by the D.R.T. shall proceed to demarcate the property as ordered above. The matter shall be expeditiously disposed of as early as possible at any rate within a period of two months from the date of receipt of the order. The Commissioner is also directed to demarcate the partition where two separate gates are created for entries to the properties.