Dismissed

Mr Girish Anil Haldankar v. Kotak Mahindra Bank Ltd.

DRAT3 Oct 2024IA/685/2024

Case brief

AI extract

What is this about?

The tribunal dismissed an application for stay of an order dismissing third party's challenge to SARFAESI measures. The appellants, claiming bona fide purchase of mortgaged property, were denied stay as they could not be identified as purchasers without notice given existing CERSAI registration.

What did the court decide?

Stay of the order dismissing the application for protection against dispossession of the subject flat was dismissed.

Mr Girish Anil Haldankar versus Kotak Mahindra Bank Ltd. — Cheque Dishonour | DRAT (2024)

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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. 685/2024 (Stay)

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Appeal on Diary No.2094/2024

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Between

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Mr Girish Anil Haldankar & Ors. V/s.

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… Appellant/s

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Kotak Mahindra Bank Ltd. & Ors. …Respondent/s

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Mr Rishabh Shah along with Mr Pravin D. Kadam, Advocate for Appellants.

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Mr Alok D. Mishra, Advocate for Respondent Bank.

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The appellants are third parties who claim to be the bona fide purchasers of the secured asset, namely flat No. 206, Raj-Shivganga CHS Ltd., CTS No. 6 A (PT) Bhabrekar Nagar, Kandivali (W), Mumbai 400 067 (subject flat) being proceeded against by the 1^st respondent for recovery of the debt allegedly due from the mortgagors/borrowers under the provisions of Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (“SARFAESI Act”, for short).

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On coming to know about the Sarfaesi measures initiated against the subject flat, the appellants filed S.A. No. 279 of 2024 before the Debts Recovery Tribunal-II, Mumbai (D.R.T.) challenging the measures taken by the bank. The appellants filed I.A. No. 1686 of 2024 for protection against the dispossession of the subject flat in the execution of an order obtained under Sec. 14 of the SARFAESI

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Act from the CMM. Vide order dated 22/08/2024, the D.R.T. dismissed the application for want of a prima facie case in favour of the appellants.

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The appellants are aggrieved and hence in appeal. The aforesaid application is filed for a stay of the impugned order. Heard Mr Rishab Shah, the Ld. Counsel appearing for the appellants and Mr Alok Mishra, the Learned counsel appearing for the 1^st respondent. Notice was dispensed against respondents Nos. 2 to 8 as no relief was sought against them. Records perused.

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The appellants would contend that they had purchased the property bona fide from respondents Nos. 2, 3 and 4 under a registered agreement for sale dated 08/02/2019 for a sale consideration of ₹76 lakhs, after availing a loan from the 8^th respondent bank. It is stated that they have been residing in the subject flat ever since the purchase of the property. The 2^nd respondent company is the builder and developer. Respondents Nos. 3, 4 and 5 are the promoters and directors of the 2^nd respondent. The developer has not yet handed over the charge of the building to the society and therefore, the Share Certificates are not yet issued. It is alleged that respondents Nos. 6 and 7 had borrowed money from the 1^st respondent and mortgaged the subject flat as security for the debt allegedly incurred by them.

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The appellants would contend that before purchasing the subject flat, due diligence was performed. There was no CERSAI registration by the 1^st respondent to indicate that there was a charge over the flat. It is further pointed out that schedule II of the registered

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title deed in favour of the borrowers/mortgagors in 2013 does not indicate the sale of the subject flat but indicates the sale of flat No. 203 in favour of respondents Nos. 6 and 7. Hence there was no opportunity for the appellants to have discovered the sale of the subject flat to respondents Nos. 6 and 7 more the existence of a mortgage.

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It is seen that the CERSAI registration was recorded on 31.12.2013 in favour of the 1^st respondent’s predecessor. The Ld. Counsel for the appellants has challenged the validity of that Certificate relied upon by the 1^st respondent. The validity of that Certificate will have to be tested at the stage of evidence recorded before the D.R.T. Hence, prima facie, there is a CERSAI registration indicating the existence of a mortgage over the subject flat.

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As regards the registration details made available to the appellants from the registrar’s office, it is pointed out that schedule- II would indicate the sale of flat No. 203 and not 206. The Ld. Counsel appearing for the 1^st respondent submits that it is only a clerical error. Admittedly, respondents Nos. 6 and 7 had purchased only one flat and that is the subject flat No. 206. The registered sale deed would indicate flat No. 206 of the subject of sale. Hence, prima facie, I find that the sale in favour of respondents Nos. 6 and 7 is that of flat No. 206 and not flat No. 203. The appellants would contend that they were misled by the entry made in the 2^nd schedule that the registrar’s office. It is pertinent to note that the appellants had obtained the details of the sale in favour of respondents Nos. 6 and 7 only after the 1^st respondent had initiated Sarfaesi measures against the subject flat. The appellants

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had not contacted any such of either CERSAI registration or the Registrar’s office before they purchased the subject flat. They cannot prima facie be identified as bona fide purchasers without notice.

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The D.R.T. had rightly declined to grant any protection to the appellants. The Ld. Counsel appearing for the appellants would submit that they had been cheated by the developers. In such circumstances, the remedy would lie elsewhere and not in challenging the Sarfaesi measures initiated by the 1^st respondent for recovery of public debt from the debtors.

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I find no reason to interfere with the findings of the D.R.T. in I.A. No. 1686 of 2024. The appellants are therefore not entitled to any stay of the impugned order. The application for stay is therefore dismissed.

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The appeal shall be taken on file in case there are no other defects to be cured.

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List the matter before the Registrar on 18.10.2024.

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Sd/Chairperson

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mks-02

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Mr Girish Anil Haldankar v. Kotak Mahindra Bank Ltd.

Case brief

What is this about?

What did the court decide?

Mr Girish Anil Haldankar v. Kotak Mahindra Bank Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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