Dismissed

Anita Jitendrakumar Jethani v. Peagasus Asset Reconstruction Pvt. Ltd.

DRAT13 Apr 2023IA/146/2023

Case brief

AI extract

What is this about?

The Debts Recovery Appellate Tribunal dismissed an application for stay against auction proceedings. The bench found no prima facie case for the appellant, noting glaring title defects where a registered sale deed was executed only after the property was attached.

What did the court decide?

Stay application dismissed; two weeks' time granted to appellant to vacate premises.

Anita Jitendrakumar Jethani versus Peagasus Asset… — Banking and Recovery | DRAT (2023)

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

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I.A. No. 146/2023 (Stay)

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In Misc. Appeal No. 41/2023

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Between

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Anita Jitendra Kumar Jethani … Appellant/s V/s.

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Pegasus Assets Reconstruction Pvt. Ltd. & Ors. …Respondent/s Mr Gajendra A. Rajput, Advocate for Appellant. Mr Charles D’Souza, i/b P. Desai, Advocate for Respondent No.1.

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The appeal is directed against the order dated 02.02.2023 in Appeal No. 4 of 2022 on the files of the Debts Recovery Tribunal -I, Ahmedabad (D.R.T.) dismissing the appeal filed under Sec. 30 of the Recovery of Debts and Bankruptcy Act,1993 (‘RDB Act’ for short). The Appellant had challenged the order dated 05.03.2022 of the Ld. Recovery Officer, D.R.T. in I.A. No. 380/2021 in R. P. No. 660 of 2018 rejecting the claim put forth by the Appellant over the property which was put for auction in the recovery proceedings. The Ld. Presiding Officer dismissed the appeal and hence, the Appellant is in appeal.

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This is an application filed in appeal for a stay of the proceedings before the Recovery Officer and to restrain the first Respondent Financial Institution from handing over possession of the auctioned property to the 8^th Respondent and registering the

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sale deed.

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The third Respondent company represented by the fourth Respondent Managing Director of the company had availed a cash credit facility of ₹1,65,00,000/- from the first Respondent on 28.07.2010 with Respondents Nos. 5 to 8 as guarantors. Some movables properties were mortgaged and there was also hypothecation of movables. Consequent to the default in payment, the first Respondent filed O.A. No. 106 of 2014 before the D.R.T. and the same was allowed on 16.11.2018. The Certificate Holder Bank filed recovery proceedings before the Recovery Officer. The sale notice was issued on 02.09.2021 and four lots of properties were put up for sale.

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The Appellant claims that she is neither the borrower nor guarantor. She has allegedly purchased the subject property consisting of Rohini Bungalows, Nana Chiloda, Ahmedabad from Respondents Nos. 5 & 9 on 28.07.2008 vide agreement to sell and the physical possession was also handed over on payment of ₹7,25,000 in case towards sale consideration. The aforesaid Respondents executed power of attorney regarding the subject property. The Appellant had on the basis of the power of attorney executed the sale deed in her favour in 2019 and got it registered with Sub-Registrar, Gandhinagar. A mutated Share Certificate was also issued by the Society on 13.05.2019. The Appellant claims to be an exclusive possession and enjoyment of the property as the owner.

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Since the subject property was being proceeded against, the

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Appellant filed the above-mentioned I.A. No. 380/2021 to set aside the sale notice dated 02.09.2021. That apart, a criminal complaint was also lodged against Respondents Nos. 5 & 7 before the Sardar Nagar Police Station, Ahmedabad. A Civil Suit was also pending before the Civil Court as Suit No. 91 of 2022. The Recovery Officer vide order dated 05.03.2021 rejected the objections raised by the Appellant in I.A. No. 308/2021. Hence, the Appellant preferred the Appeal before the Ld. P.O. under Sec. 30 of the RDB Act. The appeal was also dismissed and hence, the Appellant is before the Tribunal.

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Heard the Ld. Counsel appearing for both sides. The impugned orders of the Ld. Recovery Officer and the Ld. P.O. perused.

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Being an application for stay, this Tribunal is at the moment only concerned with a prima facie case. The Appellant claims to be the owner of the property by virtue of an agreement to sell and power of attorney executed in 2008 followed by a registered sale deed dated 13.05.2019 executed by her in her favour using the power of attorney. It is true that the subject property was never mortgaged. But there are certain glaring inadequacies pointing towards the defects in the title of the Appellant. The sale deed was executed only on 13.05.2019 consequent to the allowing of O.A. No. 106 of 2014 by the D.R.T. on 16.11.2018 and after issuance of demand notice as also the attachment order dated 18.03.2019 in the recovery proceedings. The decree/recovery certificate entitles the Certificate Holder to proceed against the hypothecated and

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mortgaged properties of the Certified Debtors as also their other properties. Although the entire sale consideration was allegedly paid by the Appellant to Respondents Nos. 5 & 6 in early 2008, the sale deed was never registered till the attachment of the property. The power of attorney relied upon by the Appellant is insufficiently stamped and the admissibility of that document is questionable also for the reason that it has not been registered. The registration of the sale deed consequent to the attachment in the recovery proceedings would also raise certain suspicions which are to be dispelled by the Appellant. The Ld. Counsel for the Appellant has relied upon the decision in Narayanamma & Ano. Vs. Govindappa & Ors. (2019) 19 SCC 42 in support of his argument. But this Tribunal does not find it helpful to the Appellant at least at this stage of the proceedings.

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No prima facie case has been made out by the Appellant. No irreparable whatsoever would be caused to the Appellant by declining to grant a stay as prayed for. The application has no merits and is dismissed. Two weeks' time granted to the Appellant to vacate the premises.

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mks-1

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Anita Jitendrakumar Jethani v. Peagasus Asset Reconstruction Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Anita Jitendrakumar Jethani v. Peagasus Asset Reconstruction Pvt. Ltd.

Case brief

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What did the court decide?

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