Disposed

Arif Moosa Shelot (Proprietor of Asian Traders) & Anr. v. The Mogaveera Co-operative Bank Ltd. & 2 Ors.

DRAT18 Jul 2022MISC APPEAL/25/2018

Case brief

AI extract

What is this about?

The Debts Recovery Appellate Tribunal disposed of a miscellaneous appeal by directing the lower Tribunal to decide a pending Stay Application expeditiously regarding the validity of a mortgage on a specific property, unmoved by the interlocutory stay order.

What did the court decide?

Direction to dispose of Stay Application No. 192/2018 within four months; status-quo continuation.

Arif Moosa Shelot (Proprietor of Asian Traders) & Anr. versus… — Dowry and Cruelty | DRAT (2022)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson

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Misc. Appeal No. 25/2018

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Between

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Arif Moosa Shelot … Appellant/s (Proprietor of Asian Traders) & Anr. V/s.

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The Mogaveera Co-operative Bank Ltd. & … Respondent/s 2 Ors.

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Mrs M. R. Patel, Advocate for Appellants.

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Mr Shreesh Oak, i/b M/s. SC Legal, Advocate for Respondent No.1.

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-: Order dated: 18/07/2022:-

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After having heard the learned counsel for the Appellant and the Respondent Bank for some time, I understand that the Appeal is directed against the impugned order of the learned Presiding Officer, Debts Recovery Tribunal No. II, Mumbai (the D.R.T. for short) in I.A. No.452/2018 dated 26.03.2018 wherein the Appellant herein had sought an interlocutory order of stay of the Sarfaesi measures on the ground that Flat No.6 which is claimed to be one of the secured assets and allegedly mortgaged to the Bank was actually not mortgaged. So there is no valid mortgage pertaining to Flat No.6., is the contention.

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The Respondent Bank contended that a valid mortgage has been created and that the original title deeds of the property are deposited with the Bank voluntarily by the mortgagor and, therefore, the contention that there is no valid mortgage is not sustainable.

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On perusal of the impugned order dated 26.03.2018, it is noted that the Ld. P.O. has observed that a prima facie case has not been made out by the Appellant/Applicant to get the Sarfaesi measures stalled and that from the submissions made, it appears that there is a valid mortgage and that there is nothing wrong in proceeding against Flat No. 6.

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Impugning the order dated 26.03.2018 in I.A. 452/2018 of the D.R.T., the Appellants approached the Hon’ble High Court of Judicature at Bombay with Writ Petition (L) No. 1041/2018 and obtained an interim stay of the Sarfaesi measures on deposit 20% of the amount claimed in the notice issued u/s 13 (2) of the SARFAESI Act. A stay of four weeks was granted in the first instance starting from 27.03.2018. The Appellants were also directed to approach this Tribunal with an Appeal to challenge the impugned order. Since this Tribunal was not presided by a Chairperson at that point in time, the Appellants approached the Hon’ble High Court of Judicature at Bombay once again and the order of the stay that was granted on 27.03.2018 was extended till 03.05.2018. Consequent to that, this Appeal was filed on 18.04.2018.

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The Appellants have deposited Rs.62 Lakhs as directed by the Hon’ble High Court assumed to be 25% of the amount claimed by the Bank and subsequently, when the application for waiver of predeposit was considered by this Tribunal and another Rs.62 Lakhs was directed to be deposited on 02.05.2018. Thus, 50% of the amount claimed has already been deposited by the Appellants.

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Considering the deposits made by the Appellants, this Tribunal directed maintaining status-quo and further proceedings of Sarfaesi measures were stalled. The S.A. is still pending consideration of the D.R.T.

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The main contention that is raised by the Appellants is that Flat No. 6 has not been mortgaged and being a property which has not been mortgaged, it does not become the secured asset. Therefore, the Bank cannot proceed against that property. It is also submitted that the mortgage deed or evidence regarding the mortgage was not produced before the Chief Metropolitan Magistrate (the C.M.M. for short) before getting an order of attachment u/s 14 of the SARFAESI Act and, hence, the order of the C.M.M. dated 17.02.2018 in case No. 672/SA/2017 has also been challenged by the Appellants. The proceedings have been pending before the D.R.T. in the S.A. pending consideration for some time, and I am made to understand by the learned counsel appearing on both sides that the S.A. is ripe for hearing but because of this Tribunal’s order directing status quo, it is not being heard.

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Under the circumstances, I find that it is in the best interest of both sides that there be a direction to dispose of the S.A. No. 192/2018 on its merits, untrammelled by whatever has been said in the interlocutory order by the Ld. P.O. The contentions raised by both sides will remain open for consideration in the S.A.

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Hence, without going into the contention raised by both sides in this appeal, I dispose of this Appeal with a direction to the D.R.T. No. II, Mumbai, to dispose of the S.A. No. 192/2018 as

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expeditiously as possible at any rate within a period of four months from the date of receipt of a copy of this order.

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The status-quo ordered by this Tribunal on payment of the pre-deposit amount shall continue till the disposal of the S.A.

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All other Miscellaneous Applications, if any, are dismissed as infructuous.

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Sd/Chairperson

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dpj-22

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Arif Moosa Shelot (Proprietor of Asian Traders) & Anr. v. The Mogaveera Co-operative Bank Ltd. & 2 Ors.

Case brief

What is this about?

What did the court decide?

Arif Moosa Shelot (Proprietor of Asian Traders) & Anr. v. The Mogaveera Co-operative Bank Ltd. & 2 Ors.

Case brief

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What did the court decide?

What the court decided

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