Dismissed

Smt. Mithilesh v. Hinduja Housing Finance Ltd.

DRAT30 May 2022MISC APPEAL/80/2022

Case brief

AI extract

What is this about?

The DRAT dismissed the appellant's appeal against the DRT's order refusing interim relief. The court held that the respondent FI had a prior mortgage charge over the property before the appellant purchased it. The dispute regarding the mortgagor's alleged fraud against the appellant is an inter se matter that does not displace the FI's right to recover dues.

What did the court decide?

Prayer for interim stay of the impugned order allowed for appointment of counsel for the respondent; substantive appeal dismissed.

Smt. Mithilesh versus Hinduja Housing Finance Ltd. — Banking and Recovery | DRAT (2022)

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DEBTS RECOVERY APPELLATE TRIBUNAL, DELHI

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Misc. Appeal Nno.80/2022 Arising out of S.A. No.201/2022 (DRT-III, Delhi)

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Smt. Mithilesh Vs. Hinduja Housing Finance Ltd.

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30.05.2022 Hon’ble Mr. Justice Brijesh Sethi

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Present : Mr. Ashutosh Kumar, Ld. counsel for the appellant

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Mr. Vishal Khattar, Ld. counsel for respondent FI

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This matter has again been taken up today through Video Conferencing.

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This appeal has been filed against the order dated 17.05.2022 passed by the learned DRT, which runs as under:-

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Present: Mr. Ashutosh Kumar, Ld. counsel for S. applicant.

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Mr. Vishal Khattar, Ld. counsel for respondent no.1 FI

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1. Due to COVID 19, this matter is taken up by this Tribunal through Video Conferencing.

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2. It is a fresh SA filed on behalf of S. applicant under Section 17(1) of SARFAESI Act 2002. An application being IA No. 825/2022 has also been filed on behalf of S. applicant for seeking interim relief.

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3. Ld. counsel for respondent no. 1 FI appeared and accepts notice on this SA and IA No. 825/2022.

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4. Heard on the issue of interim relief.

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5. Ld. counsel for S. applicant submitted S. applicant is a 58-years old lady who is neither borrower nor guarantor. He further submitted that S. applicant is bonafide purchaser of the propertyinquestion who purchased the same from Ananclsevf Chhabra vide registered Sale Deed dated 21.05.2019 and since then she is in possession of the same. Ld. counsel for S. applicant submitted that Mr. Anand Chhabra is son of Smt. Nirmala Devi / borrower of respondent no. 1 FI and the alleged mortgage was created on the basis of false and fabricated title deeds created in the name of Smt. Nirmala by her own son Anand Chhabra. He further informed that S. applicant has filed complaint/FIR in July 2019 and Mr. Anand Chhabra was got arrested in the said case. Ld. counsel for

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S. applicant also submitted that since S. applicant is bonafide purchaser of the property-in-question, therefore, respondent no. 1 FI / Court Receiver may be restrained from taking physical possession of property-in-question which is scheduled for 18.05.2022.

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6. On the other hand, Ld. counsel for respondent no. 1 FI submitted that borrower of respondent no.1 FI obtained loan in the year 2018 and deposited sale deed dated 19.05.2017 with the respondent no. 1 FI. He further submitted that since borrower of respondent FI committed defaults, hence, her account was declared as NPA and respondent no. 1 FI initiated actions / measures under SARFAESI Act and all the notices were duly served upon its borrower / guarantor. Ld. counsel for respondent no. 1 FI submitted that S. applicant is relying upon sale deed dated 21.05.2019 whereas respondent no. 1 FI is having original sale deed in favour of its borrower dated 19.05.2017, hence, charge of respondent no. 1 FI is prior to the sale deed of S. applicant. Thus, S. applicant is not entitled for any interim relief and request is made that S. applicant may not be granted any interim relief.

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7. Heard Ld. counsels for both the parties and perused the record. In the present matter, respondent no. 1 FI sanctioned the loan to its borrower namely Smt. Nirmala Devi in the year 2018 and the mortgage was created by way of depositing sale deed dated 19.05.2017 whereas S. applicant is relying upon sale deed dated 21.05.2019 executed by Sh. Anand Chhabra who is son of Smt. Nirmala Devi. Thus, charge of respondent no. 1 FI is prior to the sale deed executed in favour of S. applicant. Hence, I do not find any prima facie case exists in favour of S Applicant and balance of convenience also does not lie in favour of the S. applicant. Rather, respondent, of course, would suffer irreparable loss, in case the stay is being granted in favour of the S. Applicant, as the respondent is to recover dues from account of its borrower / Nirala Devi. Accordingly, prayer of S. Applicant for granting interim relief for restraining the respondent / Court Receiver from taking physical possession of the property-in-question tomorrow itself i.e. on 18.05.2022, is hereby rejected and IA No. 825/2022 stands disposed off.

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8. Now the matter stands adjourned to 18.08.2022 before Ld. Registrar for reply and completion of pleadings.”

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The appellant has prayed for the following interim relief in the present appeal:-

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“i) Ad interim ex parte stay of operation of impugned order dated 17.05.2022; and

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ii) Such other interim order orders, as would suffice the ends of justice in favour of the appellant and against the respondents.”

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The learned counsel for the appellant states that the appellant is the bona fide order of the subject property, having purchased the same from Mr. Anand Chhabra vide registered sale deed dated 21.05.2019. It is submitted that a housing loan was availed of by Mr. Anand Chhabra and his mother Ms. Niramal Rani from respondent no.1 by mortgaging forged title documents for which one Mrs. Sunita Tripathi was shown to be the seller and Ms. Nirmala Rani the mother of Mr. Anand Chhabra as the purchaser. It is further submitted that Mrs. Sunita Tripathi was never the owner of the property in question and, instead, Mr. Anand Chhabra had purchased the property from one Mrs. Saroj Agarwal.

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The learned counsel for the appellant states that the appellant had requested the respondent FI to take appropriate steps against the accused Mr. Anand Chhabra, but it did not take any action.

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The appellant had thereafter said to have lodged a criminal complaint against the seller Mr. Anand Chhabra and co-accuseds and an FIR bearing No.0342/2019 was registered at Bhajanpura Police Station. According to the appellant, the bail application of Mrs.Sunita Tripathi has been rejected by the learned ASJ. The appellant has alleged that the respondent FI was aware of the fraudulent transaction right from the beginning but despite that it has taken no steps against Mr. Anand Chhbra. It has also been submitted that the learned CMM vide its order passed under Section 14 of the SARFAESI Act has directed the Court Receiver to take possession of the premises in question. He further submits that the appellant had approached the learned DRT by filing S.A. and an I.A. for staying the aforementioned notice for possession. The DRT has, however, passed the impugned order ignoring the submissions of the appellant. In view of the above, the appellant has prayed for staying of the impugned order in the interest of justice.

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Brief written submissions have been filed by the respondent FI. It is submitted by the respondent FI that the property in question was purchased by the borrower, namely, Nirmal Rani, w/o Subhash Chand from one Sunita Tripathi, w/o Mr. Ashok Kumar Tripathi vide sale deed dated 19.05.2017 and the loan in question was disbursed to the said borrower on 28.07.2018 on creating equitable mortgage of the aforesaid property by depositing the original title deeds of the said property. It is further submitted that despite having the knowledge of the loan in question and the mortgage, the appellant entered into a settlement dated 06.10.2021 with Sh. Anand Chhabra and his mother in the bail application filed by Mr.Anand Chhabra and agreed to get another sale deed of the remaining area executed in their favour by Mr.Anand Chhbra. It is further submitted that in the said settlement held between the parties, the appellant had duly acknowledged the loan of respondent FI and has taken an undertaking from Mr. Anand Chhabra and another co-accused Yogesh Singh that the loan of respondent FI shall be settled and paid by them within 9 months from the day of release of Mr.Anand Chhabra from judicial custody, but the respondent FI was never impleaded as a party to the said mediation deliberately by the appellant.

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In the end, the FI has submitted that the appellant was aware of the prior sale and that the mortgage is prior to the sale of the property in favour of the appellant and, therefore, no grounds for grant of interim relief are made out in favour of the appellant.

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I have considered the rival submissions and given my thought to the matter.

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The subject property was mortgaged to the FI on 28.07.2018. There is a registered sale deed in favour of Ms.Nirmala Rani, dated 19.05.2017. Learned counsel for the respondent has referred to the GPA registered on 05.05.2019 which is subsequent to the mortgage which is dated 28.07.2018.

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No doubt, a fraud has been played upon the appellant as property has been sold to her after it was mortgaged to the bank. The appellant has

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also filed a criminal case against the accused i.e. Mr.Anand Chhabra, Nirmala Rani and Mrs.Sunita Tripathi. There is, thus, inter se , dispute between Mr.Anand Chhabra, Ms.Nirmala Rani, Sunita Tripathi and Mr.Mithlesh (appellant herein). The FI has nothing to do with the same. The FI has disbursed the loan on the basis of mortgage dated 28.07.20218 and appellant has purchased the property on 19.05.2019 i.e. subsequent to the mortgage. The FI, thus, has first charge over the property in question and, therefore, no grounds for interim relief are made out at this stage.

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There is, therefore, no illegality or irregularity in the order passed by the Ld. DRT dated 17.05.2022. Let the respondent FI now file its reply to the appeal within six weeks and rejoinder, if any, be filed within two weeks thereafter.

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List the matter on 27.07.2022.

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( CHAIRPERSON )

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-pk/ak

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Smt. Mithilesh v. Hinduja Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

Smt. Mithilesh v. Hinduja Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

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