This tribunal dismissed the Appellant's appeal against an order denying a stay on SARFAESI measures. The court held that the Appellant failed to prove title to the property via clear documentation upon inheritance.
Performant dismissal of the Misc. Appeal challenging the denial of stay of SARFAESI measures.
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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson
I.A. No. 126/2023 (Stay)
In Misc. Appeal No. 34/2023
Between
Baldip Kaur Mander … Appellant/s V/s. Catholic Syrian Bank Ltd. & Ors. …Respondent/s Mr Tarun Arora, i/b Mr Sachin Patil, Advocate for Appellant. Mr Pankaj Vijayn, i/b M/s. Intralegal, Advocate for Respondent No. 1.
-: Order dated: 25/04/2023:-
I.A. No. 126 of 2023 is an application for a stay of the impugned order passed by the Ld. Presiding Officer, Debts Recovery Tribunal No.-II, Mumbai ( D.R.T.) in I.A. No. 298 of 2023 in Securitisation Application (S.A.) No. 120 of 2019 dated 10.02.2023 declining to grant any interlocutory relief to the Appellant who claims to be a third party and an absolute stranger to the mortgage of the property created by the 5th Defendant in favour of the Respondent Bank. The Appellant claims to have inherited the property from her deceased father namely Prabhjit Singh Mander who is supposed to be the absolute owner of the flat which has been allegedly mortgaged. The Appellant has produced the share certificate to indicate that Prabhjit Singh Mander was the owner of the property by virtue of the share certificate issued. There are no other documents of title. The
Appellant has also produced a nomination document which indicates that she was nominated as his successor by her father to own the flat and necessary entry has been made on that share certificate stating that she has become a member of society. Subsequently, the name of her mother the 5th Defendant entered as a member of the society. It is pertinent to note that the old flat was pulled down and redeveloped. The redevelopment agreement was executed by the 5th Defendant with the Builder and the Society as early as 2011 which is produced in Exhibit-B. The agreement of redevelopment was already accomplished, and a new flat was constructed in place of the old flat and allotted to the 5th Defendant. The 2nd Defendant borrowed some money from the Respondent Bank and the 5th Defendant had stood as guarantor/ mortgagor for the loan and a mortgage was created by deposit of title deeds in favour of the Bank. The loan was defaulted by the borrower in consequence of which Sarfaesi measures were initiated and the property was taken possession of under Sec. 14 of the SARFAESI Act. The property is now put up for sale. The Appellant had filed a Civil Suit asserting right over the property as legal representative of her deceased father. The Civil Court refused to grant any interim relief to the Appellant in view of the fact that there was no prima facie evidence to indicate that she has the right title or interest over the property. The Appellant claims to be a one-fourth shareholder of the property by virtue of being the legal heir of her father along with her mother and brothers.
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Appellant had any right title or interest over the property at any point in time. She had permitted her name to be removed from the membership of the society in favour of her mother voluntarily and thereafter no objection was raised at any point in time when the property was redeveloped by her entering into an agreement with the developer and the society. It is only after the property is proceeded against under the SARFAESI Act that the Appellant awakes from the slumber and files the S.A. challenging the Sarfaesi measures. The Appellant has not produced any document to indicate that she or her predecessor an interest had any better title than that of the 5th Defendant.
Under the circumstances, the Ld. Presiding Officer was absolutely justified in not granting any interlocutory reliefs in favour of the Appellant. The Misc. Appeal was filed challenging the order of the Ld. Presiding Officer, I also do not find any justification in upholding the right of the Appellant over the property. Even if the Appellant has one-fourth share over the property as claimed by her, she can always press for a partition of the property respective to the sale of the property but that right has to be asserted before the Civil Court of competent jurisdiction. The Appellant is, therefore, not entitled to get the Sarfaesi measures stalled and the stay application is only to be dismissed.
Post the Misc. Appeal on 20.07.2023 for hearing.
Sd/Chairperson
mks-28
3
2 issues framed by the court
Whether the Appellant, claiming to be a legal heir, is entitled to a stay of SARFAESI measures.
Whether the Appellant has established prima facie title or interest in the mortgaged property.
Baldip Kaur Mander
Catholic Syrian Bank Ltd.
Ashok Menon
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
