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Judgment
The appellant filed S.A. bearing No. 113/2020 titled as Simmi Malhotra v. Cholamandalam Investment Finance Company Limited which is stated to be pending before DRT-III, Delhi.
DRT-III, Delhi vide order dated 28.03.2022 has declined the interim relief to the appellant for restraining the respondent no.1 Financial Institution from an auctioning/selling of the property in question on 29.03.2022.
The appellant is claiming to purchaser the subject property for sale consideration of Rs. 82.00 lacs from respondent no.2 Sharda Arora through agreement to sell and General Power of Attorney and out of which, the appellant has paid Rs.48.00 lacs to respondent no.2.
It is further stated that the registered General Power of Attorney was executed in favour of the appellant on 01.10.2020 and possession of the subject property was handed over to the appellant and the appellant is in possession of the said property.
It is also stated that the respondent no.2 did not execute the sale deed in favour of the appellant and for which, the appellant has lodged FIR bearing No. 309/2021 on 08.07.2021 at Police Station, Seemapuri besides filing the suit for Specific Performance.
The respondent no.1 issued possession notice dated 27.01.2022 under Section 13(4) of the SARFAESI Act. Appellant also came to know that a sum of Rs.1.11 crores is due against the respondent no.2. The appellant being aggrieved filed the present S.A.
It is also reflected that the respondent no.2 has taken a loan of Rs. 55.00 lacs from respondent no.1 in the year 2016 and deposited the sale deed in respect of the subject property. The respondent no.2 committed default in repayment of loan amount and accordingly, the account was declared as Non Performing Asset. DRT-III, Delhi after considering the rival contentions of the parties observed in the impugned order that the mortgaged was created prior to the execution of Agreement to Sell and General Power of Attorney allegedly in the name of appellant and more than Rs.1.11 crores is due against respondent no.2.
The Advocate for the appellant during the course of argument has referred order dated 08.07.2022 and stated that the order dated 08.07.2022 to be made absolute. He further stated that the appellant is absolute owner of the subject property on the basis of Agreement to Sell and registered General Power of Attorney and she is in actual physical possession of the subject property.
Sh. Vivek Singh, Advocate for respondent no.1 stated that the auction of the subject property has already been conducted and the impleaded respondent no.4 is the successful auction purchaser. It is further argued that the present appeal has become infructuous as the auction of the subject property has already been conducted. He stated that the present appeal be dismissed.
Sh. Raghav Kapoor, Advocate for respondent no.4 i.e. also stated that the respondent no.4 being successful auction purchaser is having every right and interest in respect of the subject property.
It is reflecting that the appellant is claiming her right over the subject property on the basis of Agreement to Sell and General Power of Attorney dated 01.10.2020 but no valid conveyance documents have been placed or relied upon by the appellant. It is also reflecting that the mortgage in respect of the subject property was created by the respondent no.2 in favour of respondent no.1 much before the execution of Agreement to Sell and General Power of Attorney. Moreover, the auction of the subject property has already been done.
In these circumstances, there is no illegality or infirmity in the impugned order dated 28.03.2022 which warrants any interference from this Tribunal. Hence, appeal is dismissed.
After considering the valuable rights of the appellant as claimed are stated to be involved, the DRT-III, Delhi is directed to dispose of the S.A. bearing No. 113/2020 as early as possible without any delay in accordance with law.