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Judgment
P.K. Bhasin, J
The appellant is hurt that his mother, respondent No. 3 herein, in collusion with his father and brothers, had illegally mortgaged one property which actually was joint family property though purchased and registered in her name, in favour of respondent No. 1 herein in order to secure the repayment of loan obtained by her and appellant's brother Ajay Jolly, respondent No. 2 herein and then permitting it to be taken over and auctioned at the instance of the said financial institution to see that the appellant is thrown out from part of the property in dispute i.e. first floor with roof of House No. F-1082, Chitranjan Park, Kalkaji, New Delhi (hereinafter to be referred as 'the property in dispute'). The appellant's case is that his entire family members, who are also respondents in this appeal have conspired against him to achieve that sinister objective. The appellant's case has been that plot over which the property in dispute was constructed was purchased from the joint family funds though purchased in the name of his mother and that is the biggest blunder committed by him in his life. It is also his case that as far as construction of the residential house is concerned he had constructed ground and first floors exclusively with his own money which he had earned from his business and in fact from bis income from his business he had purchased many other properties also.
The detailed facts leading to the filing of this appeal under Section 18 of SARFAESI Act have been noticed by the Tribunal below in its impugned order dated 3.3.2017 whereby the appellant's interim relief application filed in the Securitisation Application (S.A.) filed by him under Section 17(1) of SARFAESI Act to protect his possession of first floor with roof of the property in dispute was rejected, and so that order is re-produced below:
"IA No. 308/2017
Heard on this IA:
Learned Counsel for the applicant contends that applicant is neither borrower nor guarantor for the facility granted by the respondent No. 1 in the present matter. She further submits that the property in question is purchased in 1979 with the joint fund of the applicant as well as his father i.e. respondent No. 4. She also stated that the applicant has constructed the first floor of the said property by his own money. She also contends that Aoyawa/agreement is in favour of the applicant. Therefore, she submits the creation of mortgage of the property in question in favour of the respondent No. 1 is illegal and non est.
She further contends that on the request of respondent No. 3 the applicant was agreed for execution of documents of the property in question in the name of respondent No. 3. However, the property in question is purchased from the joint fund and was only a joint family property, therefore, the respondent No. 3 was never exclusive owner of the property in question and she was trustee only. Therefore, the creation of mortgaged by the respondent Nos. 2 to 6 is not sustainable. She further submits that there is other property of the respondent Nos. 2 to 6 and respondent No. 1 may proceed for other property instead of the property in question where on 1st floor (with roof right) applicant is residing with his family. She further submits that Hon'ble High Court of Delhi vide its order dated 18.7.2014 restrained the dispossession of the applicant from the property in question without following due process of law.
She further submits that respondent No. 1 is also party of the said suit. She also submits that later on due to pecuniary jurisdiction the said suit is transferred to the Distt. Court, Saket, Delhi. She also informed that applicant has lodged a complaint on 22nd December, 2016 to the SHO, PS Chitranjan Park, New Delhi regarding the forgery committed by the respondent Nos. 2 and 3. Therefore, she submits that respondent No. 1 may be restrained from taking physical possession of the property in question.
Learned Counsel for the respondent-FI has strongly opposes the contention of the applicant and submits that the present SA is collusive petition by the applicant and the respondent Nos. 2 and 6. He further contends that the applicant deliberately did not serve the notices upon the respondent Nos. 2 to 5 of the present SA. He also submits that at the time of sanctioning the loan facility the respondent-FI has duly verify the position of the property in question and also inspected the site and obtained of the photograph in 2012.
He further submits that the account was declared NPA in 2014 and thereafter demand notice under Section 13(2) of SARFAESI Act, 2002 was served and pasted upon the property in question. However, applicant herein never raised any objection of the same. He further contends that the suit filed before the Civil Court is also a collusive suit to frustrate the recovery of F.I. He also contends that the mortgage of the Banks is based on the sale deed which is in the name of respondent No. 3 and entire proceeding of the Bank is in accordance with the SARFAESI Act, 2002 and also rules thereunder. Therefore present IA may be dismissed with cost.
Heard rival submission and perused the record.
Admittedly the sale deed of the property in question is in the name of respondent No. 3 and after creation the same as equitable mortgage the loan was obtained from the respondent No. 1 amounting to about Rs. 7 crores and dues of the Bank is as on date more than 7.50 crores. The applicant is claiming its right on the property in question and also claiming stay on the action of the Bank on the basis of an order 18.7.2014 passed by Hon'ble High Court in CS (OS) No. 2074/2014, whereby Hon'ble High Court has restrained the dispossession of the applicant herein from the property in question without following due process of law. Since Bank has proceeded under the SARFAESI Act, 2002 for recovery its dues and after following the procedure as prescribed under Sections 13 and 14 of me SARFAESI Act, 2002. Therefore, prima facie I find merit of the contention of respondent-FI that the respondent-FI has adopted the due process of law to recover its legitimate dues, thus the present IA is liable to be dismissed. Hence, dismissed accordingly.
However, considering the contention of the applicant herein that the applicant is residing in the property in question with his family on 1st floor of the property in question. Therefore, I allow the period of 30 days to the applicant to vacate the property and hand over the peaceful possession of 1st floor (with roof) to the respondent-FI on 1st April, 2017. Even otherwise Court Commissioner may take the possession of the 1st floor (with roof) of the property in question. However, Court Receiver may proceed further for possession of the ground floor as per schedule.
List the case on the date already fixed i.e. 17.4.2017. Dasti."
Feeling aggrieved by the rejection of his interim relief application the appellant approached this Tribunal by filing the present appeal. Learned Counsel for the appellant tried to persuade this Tribunal that the appellant was victim of circumstances created to harm him by none else but his own family members and he had been constrained to even to lodge criminal complaint against his own mother for defrauding him. Learned Counsel also submitted that there is on record a 'bayonet' receipt vide which the advance payment of the plot was given by him to the vendor R.K. Ghosh but he was persuaded by his mother by misrepresentation to finalise the sale deal in her name and not suspecting her intentions the appellant had agreed to that and that way the title deed of the property in dispute came to be executed exclusively in the name of her mother Smt. Chander Kanta Jolly.
In my firm view the appellant has no case for grant of any interim relief. Nor is it even otherwise in public interest to restrain the financial institution from enforcing its rights under SARFAESI Act in order to recover crores of rupees which undisputedly is 'public money'. The appellant has no prima facie case. The title deed in respect of the property in dispute which admittedly stood deposited with respondent No. 1 by respondent No. 3 to create equitable mortgage is admittedly in the exclusive name of appellant's mother. DRTs are not supposed to resolve family disputes. All that these Tribunals are expected to examine is whether there is any illegality in the measures initiated under SARFAESI Act by a secured creditor or not. Nothing beyond that. In case the DRTs start entering into family disputes then the whole purpose of establishment of DRTs which was to ensure speedy recovery of public monies, will get defeated. Therefore, I need not deal with various judgments cited by the learned Counsel for the appellant which deal with law of benami transactions and partition law as that controversy is not before this Tribunal. The fact is that the respondent No. 2 is a secured creditor and it has to enforce its secured interest in its secured asset.
This appeal being devoid of any merit is accordingly dismissed. However since the appeal was only against an order rejecting a miscellaneous application for interim relief during the pendency of the S.A. of the appellant, the dismissal of this appeal is also only on a prima facie view of the matter and the DRT will not be influenced by the present order of dismissal of this appeal when it proceeds to dispose of the appellant's S.A. finally after appreciating the evidence adduced or to be adduced by the parties.