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Judgment
The present appeal has been filed under section 18 of the Securitization and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act") against the judgment dated 01.02.2022, whereby the Securitization Application No. 417/2020 filed by the respondent no. 1 has been allowed.
Brief facts of the matter are that the respondent nos. 2 & 3 were granted a housing loan by the appellant-Bank, to which they created equitable mortgage by depositing original title deed with the Bank. Since the Borrowers did not maintain the financial discipline, therefore, the account was classified as NPA and the demand notice dated 04.08.2022 was issued under section 13(2) of the SARFAESI Act followed by the possession notice dated 21.10.2020 under section 13(4) of the said Act.
The respondent no. 1 filed a Securitization Application No. 417/2020 challenging the demand notice as well as Possession Notice and all actions taken by the appellant-Bank under SARFAESI Act, 2002 with respect to the property in question. The Tribunal below vide order impugned allowed the S.A. filed by the respondent no. 1. Being aggrieved by the said order, the present appeal has been filed by the appellant-Bank.
Learned counsel for the appellant submitted that initially the property in question was owned by Shri Kallu, S/o Chhedi, who died issueless and the property in question was inherited by his wife Smt. Angna, who bequeathed her entire movable and immovable properties to Maiku, S/o Mede, who is her nephew, during lifetime by way of Will dated 1.12.1992 registered in the office of the Sub-Registrar, Lucknow in PushtakNo.III, Khand No. 56, at pages-361 to 364, Sr. No. 948 on 02.12.1992, which came into effect on 09.05.2003 when Smt. Angna took her last breath.
It was further contended that Maiku, S/o Mede on the basis of the registered will of Smt. Angna got his name recorded in the revenue record and Nagar Nigam in place of Smt. Angna with respect to the property in question and also in the Khatauni maintained by the revenue authorities.
It was also contended that Maiku, S/o Mede sold the property in question to Smt. Seema Devi, W/o Shri Subodh Singh by means of registered sale deed dated 09.11.2009 and later-on, Smt. Seema Devi sold the said property to Shri Santosh Kumar, S/o Ram Singar Singh by means of sale deed dated 02.02.2018, which was mortgaged with the appellant-Bank towards the housing loan. It was further contended that due to default in repayment of the same, the recovery proceedings were initiated by the Bank by issuing demand notice and the possession notice, which were challenged by the respondent no. 1 by filing the present appeal, stating therein that she is absolute owner of the property in question by way of will executed by her father, who was husband of Smt. Angna, therefore, the measures taken by the appellant-Bank under SARFAESI Act, 2002 with respect to the subject property should be set aside, which is contrary to the documents on record. It was also contended that the Respondent No. 1-Smt. Sunder Devi alias Sundari Devi claiming to be the owner of the property in question filed the Securitization Application No. 417 of 2020 against the appellant-bank, Santosh Kumar, the respondent No. 2, Smt. Mewate Kumar, respondent No. 3 and Shri Amit Kumar, respondent No. 4, but during the pendency of the present proceedings, the respondent No. 1 pursuant to its application dated 21.12.2020 sought deletion of name of Shri Amit Kumar as respondent No.4 on the ground that Shri Amit Kumar was impleaded due to bonafide inadvertence and typographical error, as he has no concern with the controversy involved in the instant Securitization Application, which has been allowed by the Tribunal below vide its order dated 13.01.2021.
It was further contended that the respondent No. 1 is not the owner of the subject property and is an illegal occupant, who has been planted by the borrowers to usurp the public money and as such the Respondent No. 1 has no locus standi, therefore, she is not entitled to raise frivolous objections so as to create obstructions or hurdles in proceedings of recovery of the public money initiated by the applicant-Bank with respect to the said property. It was, therefore, prayed that the order impugned may be set aside and the appeal filed by the appellant may be allowed.
It appears that despite service of notice through publication in the newspaper, no one has appeared on behalf of the respondents, therefore, they were directed to be proceeded ex-parte vide order dated 22.05.2025 of this Tribunal.
Having heard the learned counsel for the appellant and considering the material available on record, undisputedly, the appellant-Bank had granted the housing loan to the respondent nos. 2 & 3, to which the property in question purchased by the said respondents vide sale deed dated 03.02.2018 was mortgaged with the appellant-Bank.
The main controversy involved in the present case is, as to whether Smt. Agna Devi, who was claiming to be the wife of Late Kallu, had right/title to execute the Will dated 01.12.1992 in favour of her nephew Maiku in respect of property in question or not?
It appears that Late Kallu, S/o Late Chhedi was the real owner of the property in question. The name of wife of Late Kallu is Smt. Dheerja Devi, who had expired before the death of Kallu. The respondent no. 1 is only legal and successor of late Kallu. Late Kallu had executed an unregistered Will in favour of the respondent no. 1 in the year 1982 and on the basis of the same, the property in question was mutated in her name and she remained in possession of the same till date. The fact that Smt. Angana Devi, who is claiming to be the wife of Late Kallu, had executed the Will in favour of her nephew on 01.02.1992, which was registered before the Sub-Registrar Lucknow on 02.12.1992 and on the basis of the same, the name of Maiku in place of Angna Devi was mutated in the revenue record vide order dated 23.08.2004, but the same was recalled by the Deputy Commissioner, Municipal Corporation vide its order dated 25.01.2009 on the objection filed by the respondent no. 1 and as such Maiku had no right, title or interest in the property in question to execute the sale deed dated 09.11.2009 in favour of Smt. Seema Devi, who had subsequently sold the said property to the respondent nos. 2 vide sale deed dated 02.02.2018. Since the order dated 25.01.2009 passed by the Municipal Corporation has never been challenged either by Maiku or by the subsequent purchasers, therefore, the same has attained finality. Thus, the respondents nos. 2 & 3 were granted housing loan by the appellant-Bank on the basis of the mortgage created by invalid title deed, as the said property was purchased by the borrower Santosh Kumar from Seema Devi vide sale deed dated 02.02.2018 and Seema Devi had purchased the said property from Maiku vide sale deed dated 09.11.2009. While going through the will executed by Smt. Angna Devi, it is found that there is no description of the property in question and Smt. Agna Devi has itself stated that she was living with her nephew and she was satisfied with the act and behavior of him, meaning thereby after death of Kallu, she was not residing at In-Laws House, but she was residing in her paternity house. Thus it can be said that she had no right to execute the said will in favour of her nephew Maiku and Maiku had no right or title to sell the property in question to Seema Devi and Seema Devi had sold the said property on basis of invalid sale deed executed by Maiku in favour of Santosh Kumar.
The contention of the appellant that Smt. Angna Devi was issueless appears to be correct, but the fact that the respondent no. 1 is the daughter of Smt. Dherja Devi, who is stated to be the wife of Late Kallu and she had expired during the life time of Late Kallu, has not been controverted by the appellant. As such the sale deed executed by the Maiku on the basis of will executed by Agna Devi in favour of Smt. Seema Devi is held to be invalid and the sale deed executed by the Smt. Seema Devi in favour of Santosh Kumar is also invalid. Consequently, the mortgage created by Santosh Kumar in favour of appellant-Bank is found to be also bad in law.
In view of the aforesaid, there is no infirmity or illegality in the order impugned, hence the same does not call for any interference by this Tribunal. Consequently, the appeal file by the appellant-Bank stands dismissed with no order as to costs.
A copy of this judgment be forwarded to the parties as well as the DRT concerned and be also uploaded on the e-DRT portal.