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Judgment
Ashok Menon, Chairperson
The Appellant is the original Applicant in the S.A. No. 15 of 2013 was filed before D.R.T., Nagpur in order to set aside the Sarfaesi measures initiated by the Respondent Bank against the alleged secured asset which is flat. The builder had earlier entered into an agreement of sale with the second Respondent who had intended to purchase the flat. He also made certain payments. However, he failed to make further payments and as a result of that, the builder withdrew from the agreement for sale. The second Respondent had, however, mortgaged the property to the first Respondent Bank on the basis of an agreement to sell in his favour. He defaulted payment of the amount due to the Bank as a result of which the account was classified as N.P.A., notice under Sec. 13(2) issued and Sarfaesi measures initiated under Sec. 13(4) of the SARFAESI Act. The Appellant claims that she has purchased the property by paying full consideration to the builder and had also got the sale deed executed in her favour. The second Respondent has no existing interest in the property and the mortgage created on the basis of the agreement to sale is not valid.
By impugned order, the Ld. Presiding Officer refused to accept the averment raised by the Appellant and dismissed the S.A. Aggrieved by the dismissal, the Appellant is before this Tribunal. Appellant had earlier approached the Hon’ble Bombay High Court at Nagpur Bench by filing Writ Petition No. 1239/2014 in which the Appellant was directed to deposit a sum of ₹2.50 Lakhs in order to prove bonafide and accordingly, the amount was deposited. Subsequently, the Writ Petition was disposed of on 26.02.2015 with a direction to the Appellant to approach this Tribunal with an Appeal under Sec. 18 of the SARFAESI Act. Accordingly, the Appellant has filed this Appeal as directed by the Hon’ble High Court. The Appellant has filed this application for waiver of deposit stating that she is neither a borrower nor a mortgagor, guarantor or surety and therefore, she is not liable to pay any pre-deposit under the second proviso under Sec. 18(1) SARFAESI Act.
Heard the Ld. Counsel for the Appellant and Ld. Counsel for the Respondent No. 1 Bank.
The second Respondent though served with notice remained ex- parte.
After having heard both sides, I find that the Appellant is not liable to pay any amount as pre-deposit under the second proviso under Sec. 18(1) of the SARFAESI Act since she is neither a borrower nor a guarantor, mortgagor or a surety. Hence, the application as M.A. No. 837/2017 for waiver of the deposit is allowed and the Appellant is exempted from payment of any amount.