Sri Doddu Sharadha vs State Bank Of India

Anil Kumar Srivastava Chairperson

The instant Appeal has arisen against a judgment and order dated 14th September, 2018 passed by Learned DRT Hyderabad in SA No. 02 of 2017 whereby the Learned DRT has dismissed the SA filed by the Appellant.

As far as pleadings of the parties are concerned, the Appellant is a third party to the SARFAESI proceedings. Her husband namely Sri D.Jangaiah was allotteeof plot of land bearing plot No. 204, measuring 240 sq. yards forming part of Sy. No. 49/13, Bahadurguada, Ranga Reddy District. Her husband died. A gift deed was executed by her in favour of her son Sri D. Satyanarayana who is Respondent No. 3. It is alleged that gift deed was fraudulently obtained by the Respondent No. 3 which is under challenge before the Civil Court. Respondent No. 3 executed a General Power of Attorney in favour of one Sri Jitendra Lal and Sri Pratap Reddy who in turn sold and transferred the said property to the 2nd Respondent namely M/s SPR Rural Godowns who is partners of Smt. Seelam Aparna, wife of S. Pratap Reddy who in turn mortgaged the property in favour of the Respondent No. 1 for availing the loan facility.

A sale notice was issued by the Respondent No. 1 on 21.10.2015. Appellant came to know about the mortgage. Accordingly, he filed a SARFAESI Application with the aforesaid facts before the DRT.

Respondent No. 1 and 2 filed their reply and stated that the Respondent No. 3 had executed the General Power of Attorney in favour of Sri Jitendra Lal and Sri Pratap Reddy. Respondent No. 3 got the property on the basis of the gift deed executed by the Appellant. Thereafter, the General Power of Attorney holders sold the property to Respondent No. 2 who in turn mortgaged the same to the Respondent No. 1. When the loan account was irregular, it became NPA and proceedings under SARFAESI Act were initiated on 21.10.2015. It is alleged that the scheduled property belongs to the Respondent No. 3.After the death of her husband Appellant inherited the property who executed the gift Deed in favour of the Respondent No. 3. On the basis of the gift Deed, General Power of Attorney was executed. Secured asset forms part of Sy. No. 49/13 which is listed as one of the properties which are listed in the list of prohibited properties. Accordingly, SA is liable to be dismissed.

After going through the record, Ld.DRT recorded a finding that there is no dispute regarding the identity of the mortgaged property mortgaged to the 1st Respondent Bank by 2nd Respondent in favour of the Respondent No. 1 who executed survey No. 49/1. Accordingly, SARFAESI Application was dismissed.

Learned Counsel for the Appellant submitted that initially, the patta was executed in favourof Late Jitendra Lal, husband of the Appellant. Admittedly he died in the year 1996. In the Patta certificate survey Number is mentioned as Sy. No. 49/13 while in the secured asset it is mentioned as Sy. No. 49/1. In the gift deed survey number is mentioned as 49/1. Hence, the property is not identifiable. It is further submitted that the Gift Deed is allegedly executed by the Appellant in favour of the Respondent No. 3 who is her son.The same is under challenge before the Civil Court on the ground of fraud. Hence, no title is passed to the Respondent No. 3 on the basis of alleged Gift Deed. Hence, the finding of the Ld DRT is erroneous.

Learned Counsel for the Appellant further submitted that there is a prohibition order regarding Survey No. 49/13.

Learned Counsel for the Respondent No. 1 submitted that the mortgaged property was a secured asset which was mortgaged with the Respondent No. 1 by the Respondent No. 2. When account got irregular and it became NPA, proceedings under SARFAESI Act were initiated. They have submitted that the scheduled property is situated at Survey No 49/1. It is evident from the Gift Deed as well as from the sale Deed. He further submitted that the patta is not a registered document and it was not acted upon after it is executed.

A patta was executed in favour of Sri Jangaiah for Survey No. 49/13 measuring 240 sq. yards. It would be relevant that in the pattacertificate no boundaries are mentioned although plot no. mentioned as 204 on top of the certificate. It is also not in dispute that the Respondent No. 3,Doddu Satyanarayana is the son of the Appellant. It is also admitted that a gift deed was executed by the Appellant in favour of Respondent. Subsequently it was challenged before the Civil Court on the ground that it was obtained by the Respondent No. 3 by fraud. The matter is still sub judice and no findings are recorded by the Civil Court. It is also not in dispute that Respondent No. 3 executed a General Power of Attorney in favour of Sri Jitendra Lal andSri Pratap Reddy who in turn executed a sale deed in favour of Respondent No. 2.

As far as the identity of the disputed property is concerned, it is admittedly a house. Identity of the gifted property and the scheduled assets are the same. Patta was not acted upon after execution. As far as question of survey No49/13 is concerned, no document is brought on record to reconcile the same with disputed property. There is nothing on record to show that the secured asset is situated in Sy. No. 49/13. For want of any documents in this respect it cannot be held that secured asset is situated in Sy. No. 49/13. Hence, although the area is similar i.e. 240 sq.yards and house Number is 3-4-151 of land bearing plot No. 204 Sy. No. 49/1, it shows that the secured asset is the same which was gifted in favour of the Respondent No. 3 by the Appellant. Hence, the Appellant now cannot challenge the same in the SARFAESI proceedings.

Accordingly, I am of the view that the Learned DRT has recorded its findings on the basis of materials on record. Appeal lacks merits and is liable to be dismissed.

ORDER

Appeal is dismissed. No. Order as to costs.

File be consigned to Record room.

Order signed, dated and pronounced in open Court.