The Debts Recovery Appellate Tribunal dismissed the appellant's appeal against the lower Tribunal's order. It held that since the bank undertook not to take possession of the appellant's specific share of the property, no grounds existed to interfere with the impugned order.
Appeal dismissed; Appeal disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
DEBTS RECOVERY APPELLATE TRIBUNAL, DELHI
Appeal No. 163/2022 Arising out ofS.A. NDN No. 818/2022 (DRT-II, Delhi)
HashmukhJayantilal Kotak
Vs
State Bank of India and Ors.
27.01.2023 Hon’ble Mr. Justice BrijeshSethi
Present: Mr. Vipin Singh, Ld. counsel for the appellant.
Mr. Amrendra Singh, Ld. counsel for the respondent no.1/ SBI.
Mr. Ashish Sharma, Ld. Counsel for Respondent no. 2.
This matter has been taken up by me through Video Conferencing.
Order:
Before Rajesh Malhotra, Presiding Officer, Debts Recovery Tribunal-11, Delhi
NDN/818/2022 (SA of 2022)
Hasmukh Jayantilal Kotak v. State Bank of India
Date of filing: 19.07.2022
Date of decision: 06.08.2022
Argued by : Sh. Vipin Singh, Counsel for the applicant.
Ms. Vidhi Nigam, Counsel for respondent no. 1
Final Order
The matter is taken through VC.
The present S.A. is being instituted by the applicant under Section 17 of SARFAESI Act, 2002 read with Security Interest (Enforcement) Rules, 2002 to set aside all the measures taken by respondent bank with respect to subject property on the grounds as mentioned in SA application.
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area admeasuring 582 sq. yards Plot Area Southern side construction made thereon residential house A-5 at Plot No. 5 in ‟Swastik Co-operative” within The Swastik Co-operative Group Housing Society Ltd. B/h. Anand Mangal Complex, NavrangpuraMoujeShekhpur-Khanpur, Taluka City, Disft. Ahmedabad and Sub Ahmedabad-3 (Memnagar), Gujrat Mr. Reameshbhai Motilal Jain is owner of the property.
Bounded:
On the North byBungalow No. A/4 On the south side Bungalow no. A/6 On the East Side Society Road On the West side Ananmangal Complex
Applicant is the owner and in actual physical possession of the fully constructed property admeasuring 315 sq. yards on the northern side of the Plot A-5 out of 902 sq. yard and respondent no. 2 is the owner of 587 sq. yards on the southern side of this Plot A-5. Respondent no. 2 was not empowered to create mortgage of the property, in absence of NOC for mortgage from present applicant, as the sale deed and share certificate are in joint names of the applicant and respondent no. 2. Moreover, no permission was obtained from Co-operative Society. Municipal Authorities by respondent no. 2 before mortgage and respondent no. 1, failed to make necessary compliance in this regard before sanctioning the loan. Respondent no. 1 auctioned this property vide sale notice dated 01.03.2022, by wrongly mentioning the description of the property and now respondent bank is going to take physical possession through receiver. Prayer was accordingly made to allow the present SA and thereby set aside all the actions taken by respondent no. 1 under SARFAESI Act.
The letter dated 03.11.2017 for symbolic possession reflects the detail of subject property owned by respondent no. 2 as Plot no. A/5, paiki admeasuring 754.18 sq. mtr. i.e. 902 sq. yards, paiki Southern side admeasuring 587 sq. yards (Plot area) together with construction constructed in Swastik Co-operative Housing Society Ltd. Bounded by East: Society Road and 52.9 feet front; West- Anandmangal Complex and 54 feet compound wall; North- 99 feet common wall of sub-plot no. A/5; South-sub plot no. A/6.
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Letter dated 27.10.2017 for symbolic possession reflects the details of subject property as Plot no. A/5, paiki admeasuring 754.18 sq. mtr. i.e. 902 sq. yards, paiki Southern side admeasuring 587 sq. yards (Plot area) together with construction constructed in Swastik Co-operative Housing Society Ltd. situated at land bearing TPS no. 3 FP no. 262 paiki of City Survey No. 169, situated lying and being at maujeShekhpurKhanpur, Taluka Sabarmati in the registration DistrictAhmedabad-Gujrat.Bounded by East: Society Road and 52.9 feet front; West- Anandmangal Complex and 54 feet compound wall; North- 99 feet common wall of sub-plot no. A/5; South-sub plot no. A/6.
However, in the sale notice dated 01.03.2022 the description of subject property is mentioned as all that part and parcel of the property consisting of City Survey No. 1679, Final Plot no. 262 paiki, Town Planning Scheme no. 3, Tenement no. A/5, area measuring 587 sq. yards Plot area out of Southern side out of total land admeasuring 902 sq. yards i.e. 754.18 sq. mtr. and construction made thereon residential house A/5, at Plot no. 5 in Swastik Co-operative Housing Society Ltd. B/h, Anandmangal Complex, Navrangpura, MaujeShekhpurKhanpur, Taluka City DistrictAhmedabad and Sub-District Ahmedabad-3 (Memnagar), Gujrat. Mr. Ramesh Bhai Moti Lal Jain is owner of the property bounded:
On the North by : Bungalow No. A/4 On the South by : Bungalow No. A/6 On East side Society road On the West side: Anandmangal Complex
Accordingly, he asserted that as the description of the property sold was not clearly given without mentioning the share of SA applicant to the extent of 315 sq. yards, he Is likely to be dispossessed from his house situated on the northern portion of the Plot A/5, by receiver appointed by respondent bank without appreciating the fact that respondent no. 2 is owner of the house in the southern portion of Plot measuring 587 sq. yards, out of total area of plot A/5 as 902 sq. yards. He further pointed out that even otherwise in view of restrictions by Cooperative Society and Municipal Authorities, the Plot no. A/5 cannot be bifurcated into two parts. Prayer was accordingly made to allow the present SA.
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plot only, without touching the residential house of SA applicant comprised in northern portion of the plot measuring 315 sq. yards out of 302 sq. yards in plot no. A-S. He further submitted that there was no restrictions to obtained NOC from present applicant, cooperative society or any Municipal Authority, before sanctioning the loan in favour of respondent no.2 for mortgaging the portion of the plot in his possession. Thus, respondent bank is empowered to take symbolic & physical possession and there is no defect in the auctions sale. Prayer was accordingly made to dismiss the present SA.
(Pronounced in open court) 06.08.2022.
(RAJESH MALHOTRA) PRESIDING OFFICER DRT-II, DELHI
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315 sq. yds. and Respondent No. 2was the owner of 587 sq. yds. on the Southern Side as per the Sale Deed consisting of 902 sq. yds. of the property in question.
“Property consisting of City Survey No. 1679, Final Plot No. 262 (Palki) Town Planning Scheme No.3, Tenement No. A/5 area admeasuing 587 Sq. Yards and construction made thereon plot area of Southern Side of Bungalow No. 5/A in „Swastik Society‟ within the Swastik Co-operative Housing Society Ltd. B/h Anand Mangal Complex, Navrangpura, MoujeShekhpurKhanpur, Taluka City, Distt. Ahmedabad and Sub District Ahmedabad-3 (Memnagar), Gujrat.
Bounded:-
On the North by Bungalow No. A/4, On the South by Bungalow No.A/6, On the East by Society Road, On the West by Anandmangal Complex.”
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(CHAIRPERSON)
-ap/ak
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2 issues framed by the court
Whether the appeal challenging the bank's possession measures regarding the mortgaged portion of the property is sustainable given the bank's undertaking not to touch the appellant's share.
Whether the jurisdiction of the DRT is attracted when the appellant is in possession of a portion of the property not mortgaged by the borrower.
1 provisions across 1 enactments
Hashmukh Jayantilal Kotak
State Bank of India
Respondent no. 2
Brijesh Sethi
As recorded by the court registry
7 orders share this CNR
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