Remanded

Ganesh Balasaheb Gangane v. Union Bank of India and Others

DRAT14 Nov 2024MISC APPEAL/203/2024

Case brief

AI extract

What is this about?

Appellant challenged an order granting stay on possession of a mortgaged property conditional on part payment. Court held injunctions must be on merits and not subject to repetitive part payments.

What did the court decide?

Impugned order setting injunction conditional on part-payment is set aside and matter remanded to DRT for fresh consideration on merits. Bank to be restrained from possession pending fresh order.

Ganesh Balasaheb Gangane versus Union Bank of India and Others — Banking and Recovery | DRAT (2024)

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

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Misc. Appeal No.203/2024

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Between

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Ganesh S/o Belasaheb Gangane … Appellant/s

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V/s.

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Union Bank of India & Ors. …Respondent/s

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Mr Rajesh Nagori i/b Ms Sanjana Ghogare, Advocate for Appellant. An Advocate for the Respondent appeared.

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The appellant claims to be a third party having 1/5^th right in the subject residential house which is intended to be taken possession of by the respondent bank for recovery of debt allegedly due from some of the respondents who are also co-owners of the property and had allegedly mortgaged the property to the bank. The appellant filed Securitisation Application No.245/2024 (S.A.) before the Debts Recovery Tribunal, Aurangabad (D.R.T) for challenging the Sarfaesi measures initiated by the bank against the property which is alleged to be a joint family property which could neither have been mortgaged nor could the possession of the property be taken, contends the appellant.

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When the matter came up for taking possession, twice the possession was deferred subject to payment of some amount by some of the respondents who are admittedly the mortgagors. When the possession is attempted to be taken the third time, the appellant filed I.A. No.1741/2024 in the S.A. for an injunction against taking over

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possession of the residential house. It is admitted that two other plots have been mortgaged with the bank and the bank has already taken possession of those properties and is also at liberty to sell those properties. Therefore, there is no urgent need to take possession of the residential house which is also the subject matter of a partition suit filed which has been allegedly filed by the appellant before the Civil Court.

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The defence set up by the respondent bank is that the subject property was transferred to the 6^th respondent and mutation has also been affected in the revenue records in his favour. Therefore, the bank proceeded against the subject property under the premise that it is a property exclusively belonging to the 6^th respondent.

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In the impugned order, the Ld. Presiding Officer granted an injunction preventing the taking over of possession of the subject property on condition that the applicant deposits ₹ 40 lakhs by 1:00 p.m. on 14.11.2024. Subject to payment of the said amount, the possession was stalled. The appellant is aggrieved because even prior to this, payments were made by the borrowers and subject to those payments, taking possession of the property was deferred

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In those orders, there is no specific direction that the stay would be for a particular period and therefore, every time the money is deposited, the respondent bank issues a notice for taking possession resulting in the applicant approaching with an interlocutory application again for stalling the taking of possession of the property. 6. It has to be made clear that the interlocutory orders of injunction against the action taken under the SARFAESI Act should be

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considered on its merits and in case the applicant does not have a good case to defend the taking over of the possession, the application should be rejected and in case there is prima facie case made out regarding the mortgage or title, an interim protection should be granted and it may also be subject to some payment by the borrower but that injunction should last till an ultimate decision is taken in the S.A. Orders directing part payments in this manner is not justified, and is therefore, deprecated.

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In the present impugned order also, the Ld. Presiding Officer has not gone into the merits of the case to find out whether there is a prima facie case made out to stall the taking over of possession of the residential house and therefore, I am of the opinion that the impugned order is not sustainable and is resultantly set aside and I.A. No. 1741/2024 is remanded back to the D.R.T., Aurangabad for fresh consideration on its merits. It is made clear that there is no embargo in the bank proceeding against the property which has already been taken possession. It is also submitted that the property described as M.H.R.- 5/29/3, Survey No.52/1/B, admeasuring 3520 sq. ft., Bharat Society, Nanded Road, Latur, is also being surrendered to the bank for appropriate action to recover the amount.

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Till a considered order is passed in the aforesaid I.A. No 1741/2024, the bank is precluded from taking possession of the residential houses. The I.A. shall be disposed of as expeditiously as possible, preferably within one month from the date of receipt of this order.

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Sd/Chairperson

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nrp-26

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Ganesh Balasaheb Gangane v. Union Bank of India and Others

Case brief

What is this about?

What did the court decide?

Ganesh Balasaheb Gangane v. Union Bank of India and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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