Suresh Chand Sharma vs India Sme Asset Reconstruction Co. Ltd. And Ors

P.K. Bhasin, J

The only point which this Tribunal is called upon to decide is whether the condition of deposit of payment of Rs. 1 crore imposed upon the appellant (third party buyer of the mortgaged property in question) while granting an order of status quo in his favour regarding possession of property bearing No. 4764/1, Plot No. 19A (18B) No. 23, Ansari Road, Darya -Ganj, Delhi - 110002 except the ground floor which already stands taken over by Union Bank of India and which Counsel for the appellant claims to have been recovered from his possession is unjust and harsh.

The appellant claims to be a purchaser of the aforesaid entire property from its owner Mr. Rattan Chand Jain, respondent No. 2 herein by way of as many as six agreements of sale executed on different dates, the first was of the year 2005 and the last one being of the year 2006. The sale consideration shown in the first agreement to sell was Rs. 91 lakh and it was mentioned in the agreement that possession of the property would be delivered to the appellant, buyer, only upon full payment of the sale consideration since only payment of Rs. 27 lakh odd had been paid to the seller by that time. There appears to be some controversy that the same very Rattan Chand Jain created many documents based on which his family members have been taking loans by mortgaging different floors (ground floor was mortgaged to Union Bank of India and first floor was mortgaged to Punjab National Bank, Mayapuri Branch). As far as the Punjab National Bank is concerned, which is the assignor of the debt in question in favour of the present respondent No. 1 (ARC) it claims itself to be the mortgagee of the entire aforesaid property by way of equitable mortgage having been created way back in the year 1984. The dues which the present respondent No. 1 (assignee) is claiming to be recoverable from Rattan Chand Jain, its borrower, and from its mortgaged assets as on date are stated to be the tune of over Rs. 25 crores.

The learned DRT has passed an order of status quo vide impugned order in respect of the aforesaid entire property subject to the appellant making payment of Rs. 1 crore to the respondent No. 1, F1 to be kept in a no lien account. Feeling aggrieved only on the imposition of said condition of deposit of Rs. 1 crore, the appellant has filed the present appeal.

The grievance of the appellant is that when on two earlier occasions in other litigation with Union Bank of India and Punjab National Bank interim reliefs were sought, this Tribunal had granted interim relief in respect of the ground floor by imposing a condition of deposit of Rs. 33 lakh only while in relation to the litigation centering around first floor, the condition imposed for grant of interim protection was Rs. 25 lakh, as per the order of the Hon'ble High Court passed in a writ petition which was filed against the imposition of condition of payment of Rs. 50 lakh by the DRT and which condition in appeal by the appellant was upheld. Learned Counsel submitted that in these circumstances, the order of the DRT now imposing a condition of payment of Rs. 1 crore is highly unreasonable and unjustified and, therefore, it deserves to be suitably modified.

Though arguments have been advanced on the question of entitlement of the appellant to claim interim relief, I do not consider it necessary to go into those arguments since the real controversy is whether this Tribunal should interfere in the discretion exercised by the DRT while granting interim relief to the appellant against his dispossession in the litigation initiated by the appellant against the action of the respondent No. 1 to recover a huge amount of public money. Learned Counsel for the appellant has drawn my attention to order dated 12.1.2016 passed by the Hon'ble Delhi High Court vide which appellant was given interim relief in respect of first floor subject to his making payment of Rs. 25 lacs with respondent No. 1 herein.

Learned Counsel for the respondent No. 1 while strongly opposing this appeal had also referred to the background facts which according to him disentitled the appellant from claiming any relief from the DRT what to talk of conditional interim relief with which also appellant is feeling dissatisfied. Learned Counsel also submitted that respondent No. 1 is contemplating to file independent appeal challenging very grant of interim relief to the appellant. Another submissions was made that appellant has no locus standi to resist action of the respondent No. 1 initiated under SARFAESI Act based on which unregistered agreement which also was after creation of mortgage.

Considering all the facts and circumstances of the case and giving due consideration to the aforesaid submissions, this Tribunal is of the view that the Tribunal below had the discretion to grant interim relief and it has exercised that discretion and that discretion could undisputedly be exercised by imposing some condition also. The Tribunal has exercised the discretion by directing the appellant to make a deposit of Rs. 1 crore with the respondent, F1 to be kept in a no lien account. This Tribunal is not inclined to interfere with the discretion exercised by the DRT, even though during the course of the hearing of the appeal, learned Counsel for the appellant volunteered to make a deposit of Rs. 25 lakh with this Tribunal as against the DRT's order of payment of Rs. 1 crore.

The discretion exercised by the DRT cannot be said to have been exercised arbitrarily by taking an overall view of the matter.

This appeal is dismissed accordingly.

A copy of this order be given dasti to Counsel for the parties.