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Judgment
Briiesh Sethi, Chairperson
These appeals have been taken up by me through Video Conferencing.
Vide this common order, I shall dispose of two appeals one filed by Mrs. Vimla Devi Sharma bearing Appeal No.155/2023 and another one filed by Mr. Kailash Chand Sharma bearing Appeal No.156/2023 which has arisen out of the common order dated 15.05.5023 passed by Ld. Presiding Officer, DRT-Jaipur. The impugned order dated 15.05.2023 runs as follow:-
"Case No. SA 437/2022
VIMLA DEVI SHARMA V/s BANK OF BARODA
Case No. 438/2022 KAILASH CHAND SHARMA V/S BANK
OF BARODA
Date: 15.05.2023 Present:
Sh. Pramod Kumar, Ld. Counsel for the Applicant in both the SAs
Sh. Rakesh Choudhary, Ld. Counsel for the Respondent Bank in both the SAs
Final Order
These two SA's are being disposed of by this common order mainly on the ground that the subject property, so mortgaged is situated at "Plot Number 807/1, Khasra Number 310, Ayodhya Nagar, Senthal Rood, Revenue Village, Dausa Distt and at Plot Number 807/3, Khasra Number 310, Ayodhya Nagar, Sent hal Road, Revenue Village, Dausa Distt.
As per facts respondent no. 1, issued a Possession Notice, for the property at "Plot no. 807/3" as the borrower and rnortgager Mrs. Asha Sharma and Rajendra Sharma committed default and as on 17.05.2022, the bank was to recover an amount of Rs. 22,68,568/-.
For property at Plot No. 807/01, Mrs. Mamta Sharma and Sh. Goverdhan Sharma, borrower and mortgager, committed default and on 17.05.2022, respondent bank was to recover an amount of Rs. 24,52,701/- and so issued Possession Notice on 19.05.2022.
So, for Plot no. 807/01, SA applicant Mrs. Vimla Devi Sharma filed SA no. 437/2022 and for Plot no. 807/03, her husband Mr. Kailash Chand Shama filed SA no. 438/2022.
In both the SA's both the SA applicants claims there right over the subject mortgaged property on the basis of Agreement to sale executed on 19.06.2017 and on 21.07.2018. Photocopies of said agreement to sale are filed at Annexure A/1 in both the SA's. The Agreements are simply notarised and not registered. 6. Further both the applicant filed certified copy of chain documents at Annexure A-2 and copies of documents proving residence at the subject properties at Annexure/3 in both the SA.
So, except documents, so filed at Annexure/1, 2 and 3, there is no other documents, which can prove ownership of SA applicants, on the subject mortgaged property.
Before deciding the issue of actions taken by Respondent Bank, it is necessary to have a look of documents, so filed by Respondent Bank along with the reply and it is very necessary to understand the relation of borrowers in both the cases and owners of the property who executed agreement to sale on 19.06.2017 and on 21.07.2018 respectively.
In SA No. 437/2022, Mr. Jagdish Prasad Sharma is Respondent No. 3 and Mrs. Mamta Sharma is wife of Mr. Govardhan Sharma who is son of Mr. Kalyan Sahay Sharma & brother of Mr. Jagdish Prasad Sharma.
In SA No. 438/2022 Mr. Narendra Kumar Sharma S/o Sh. Jagdish Prasad Sharma is Respondent No. 3 who executed agreement to sale with Mr. Kailash Chand Sharma and Asha Sharma w/o Mr. Rajendra Sharma is Respondent No. 4.
11./n SA no. 437/2022, bank filed copy of Memorandum of Entry dated 15.07.2020 and documents as mentioned in Schedule first is Original Registered Sale Deed dated 13_07.2020 executed in favour of Mrs. Mamta Sharma W/o Goverdhan Sharma for plot no. 807/01, as credit facility of Rs. 2400000/-was obtained by Mrs. Mamta Sharma & Mr. Goverdhan Sharma.
12.1t is important to mention here that Mr. Goverdhan Sharma is real brother of Mr. Jagdish Prasad Sharma who is witness to Agreement to Sale dated 19.06.2017.
So, it is clear that Mr. Jagdish Prasad Sharma & Sh. Goverdhan Sharma, both the real brother Knowingfully well executed an agreement to sale with Mrs. Vimla Sharma on 19.06.2017 for Plot at 807/01 and after that executed a Registered Sale Deed on 13.07.2020, in favor of wife of Mr. Gordhan Sharma, who obtained credit facility of Rs. 2400000/-and mortgaged the said property.
Accordingly, entire role was played by Mr. Jagdish Prasad Sharma, his brother Mr. Gordhan Sharma and his wife Mr. Mamta Sharma.
In SA no. 438/2022, bank filed copy of Memorandum of Entry dated 14.01.2020 and documents as mentioned in Schedule first is Original Registered Sale Deed dated 13.01.2020 executed in favour of Mrs. Asha Sharma W/o Rajendra Kumar Sharma for plot no. 807/02 by Mr. Narendra Kumar Sharma, as credit facility of Rs. 21,50,000/- was obtained by Mrs. Asha Sharma and Mr. Rajendra Kumar Sharma
16.1t is important to mention here that Mr. Narendra Kumar Sharma, is son of Mr. Jagdish Prasad Sharma and Patta was issued in his favor on 30.03.2016.
So, it is clear that same Mr. Narenda Kumar Sharma, who executed agreement to sale in favour of SA applicant on 21.07.2018, executed Registered Sale Deed for the same property on 13.01.2020 and in agreement to sale Mr. Jagdish Prasad Sharma, father of Mr. Narendra Kumar Sharma is a witness.
Accordingly, in this deal also Mr Jagdish Prasad Sharma played a vital role of fraud.
so, from the above discussion it is clear that the respondent bank created valid mortgage in both the cases by depositing original title deeds of mortgaged properties and even if the SA applicants are having physical possession, that may either on account of part of criminal conspiracy or on account of cheating committed by family members of seller, who executed Agreement to sale four and five years back.
In my considered opinion the applicants do not have any right over the subject mortgaged properties merely on the basis of Agreements to Sales.
Registered Sale Deeds of both the properties were executed on 13.07.2020 and 13.01.2020 and so the bank is not at fault in sanctioning and disbursing the credit facility in favor of borrowers, who in connivance with their family member committed default with an ulterior motive to cause wrongful loss to the bank.
Original chain documents, so filed by SA applicants in SA no. 437/2022 be returned to SA applicants for doing the needful at per their own level.
Mr. Jagdish Prasad Sharma, his son Mr. Narendra Kumar Sharma, Mr. Mamta Sharma w/o Mr. Gordhan Sharma and Mrs. Asha Devi have already been prosecuted and are facing criminal actions but Mr. Gordhan Sharma is also required to be prosecuted for the same cause and relation of both the SA applicants with their respective respondent is also required to be looked into by investigating officer of FIR no. 231/2020 and so authorized officer of the respondent bank is directed to file a complaint with the investigating officer of FIR no. 231/2020, in the light of above said observations. Investigating officer is at liberty to investigate role played by other persons, who are parties to agreement to sale as well sale deeds in the capacity of witness also.
All pending IA's if any stands disposed of as infractuous.
The Securitization Application being devoid of any merit is dismissed.
Copy of this order be given free to the parties.
Put up before Registrar for compliance, after compliance file be consigned to record as per rules.
Vivek Saxena
Presiding Officer
DRT, Jaipur"
Ld. Counsel for the appellants has challenged the above order on the ground that Ld. Presiding Officer, DRT has failed to appreciate the fact that the appellants are the owners of the properties in question by virtue of the agreement to sell dated 19.06.2017 in Appeal No. 155/2023 and agreement to sell dated 21.07.2016 in Appeal No. 156/2023.
Ld. Counsel has further submitted that the Ld. PO DRT has wrongly held that agreement to sell as per Section 17 of the Registration Act, 1908 was not required to be registered and the Ld. Tribunal has also failed to appreciate the fact that the appellants were in possession of the properties and, in furtherance of the agreement to sell they had already filed a Civil Suit bearing No.35/2022 for the relief of specific performance. The Ld. Tribunal has also failed to appreciate the fact that the appellants were deceived by the borrowers/mortgagors and they have got registered an FIR bearing No.0231/22 dated 23.04.2022 under Section 420 of IPC at Police Station/Kotwali-Dausa.
It was next argued by the Ld. Counsel for appellants that at the time of granting of the loan, the bank had not conducted physical verification of the properties and had it done so it would have found that the appellants are in possession of the premises.
Ld. Counsel for the bank, on the other hand, has argued that the appellants are claiming their title on the premises in question on the basis of an agreement to sell which clearly mentions that the possession of the properties was handed over to them (appellants) and the said documents was, therefore, required to be registered under Section 17 (1)(b) of the Registration Act, 1908. It is further submitted that the said agreement to sell was not properly stamped as per Section 35 of the Indian Stamp Act, 1899.
Ld. Counsel for the respondent bank has submitted that the bank has granted the loan to the borrowers/mortgagors on the basis of the Registered Sale Deeds and, therefore, there is no infirmity or illegality so far as grant of loan is concerned. Ld. Counsel has further argued that the appellants have not come to the Tribunal with clean hands for the reason that they are claiming their rights on the basis of an unregistered agreement to sell which does not confer any right upon them to claim possession of the premises in question.
I have considered the rival submissions. It is not in dispute that the appellants are claiming their title over the premises in question on the basis of an agreement to sell which is not registered and also not duly stamped. Section 17 (1)(b) of the Registration Act, 1908 runs as under:-
"Section 17(1) (b) in The Registration Act, 1908
Documents of which registration is cornpulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:"
In view of Section 17(1)(b) of the Registration Act, 1908, the documents which create interest in the property ought to have been registered. The unregistered documents, therefore, do not confer any right of ownership of the properties in question upon the appellants. The bank has duly granted loan to the borrowers/mortgagors on the basis of Registered Sale Deeds dated 13.07.2020 and 13.01.2020 in favour of Ms. Mamta Sharma and Mrs. Asha Sharma respectively. The bank has, thus, granted loan on the basis of valid documents duly registered in favour of the borrowers/mortgagors and, therefore, the proceedings initiated by it against the borrowers/mortgagors under the SARFAESI Act, 2002 are in consonance with law.
Ld. Counsel for the appellants has, however, argued that the appellants have filed a Civil Suit against the borrowers/mortgagors and the same is pending for disposal and this shows that appellants are bonafide purchaser of the premises. This Tribunal has given its thoughts to the above contention of Ld. Counsel for the appellants and is of the opinion that the filing of the Civil Suit which is a dispute between appellant and borrowers/mortgagors does not debar the bank from recovering its dues from the borrowers/mortgagors under SARFAESI Act. This Tribunal is further of the opinion that if the appellants have been cheated, the remedy for redressal of their grievance is available to them and an FIR has already been registered against the borrowers/mortgagors and a civil suit is also stated to have been filed by the appellant. In these circumstances, the appellants cannot claim any protection from this Tribunal on the ground that they have been deceived by the borrowers/mortgagors.
In view of the above discussion, this Tribunal is of the opinion that there is no infirmity or illegality in the impugned order dated 15.05.2023 passed by the Ld. DRT-Jaipur. The present appeals are, therefore, dismissed. There shall be no order as to cost.