Disposed

Sh Rohitash Kumar Meena v. Sbfc Housing Finance Ltd.

DRAT22 Feb 2024MISC APPEAL/265/2023

Case brief

AI extract

What is this about?

The DRAT issued a temporary restraining order on the bank from proceeding against a disputed property under the SARFAESI Act until the doubt regarding the property's identity is resolved in the underlying Securitisation Application.

What did the court decide?

Temporary injunction restraining the first Respondent from proceeding against the subject property under the provisions of the SARFAESI Act.

Sh Rohitash Kumar Meena versus Sbfc Housing Finance Ltd. — Specific Performance | DRAT (2024)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: DELHI (SITTING AT: MUMBAI) (THROUGH VC)

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Present: Mr. Justice Ashok Menon, Chairperson

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Misc. Appeal No. 265/2023

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Between

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Rohitash Kumar Meena … Appellant/s V/s.

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SBFC Housing Finance Ltd. & Anr. …Respondent/s

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Mr Rajendra Wali along with Mr Kamal Kishor, Advocate for Appellant appeared through Video Conferencing. Mr Depankur Sondhi, Advocate for Respondent Nos. 1 FI.

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-:Order dated: 22/02/2024:-

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The aggrieved Appellants are in appeal challenging the order dated 26.10.2023 in Securitisation Application (S.A.) No. 368 of 2023 on the files of the Debts Recovery Tribunal-II, Delhi (D.R.T.) rejecting the interim prayer for protection sought under the provisions. of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’, for short).

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The Appellants claim to be the absolute owners in possession of property bearing No. RZ-F-2/180-A along with the proportionate undivided indivisible land measuring 100 sq. yards (83.61 sq.mtrs.) out of Khasra No. 447 situated in Village Nasirpur, Mahavir Enclave, New Delhi 110045 which they claimed to have purchased from the fourth Respondent Amit Kumar Srivastava through a registered sale deed

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executed on 03.06.2022. The said assignor had purchased the property from a person named Atul Goel on 05.10.2015 through the registered sale deed. The first Appellant is an employee of the Defence Accounts Department of the Government of India. He had availed loan from the sixth Respondent Bank of India and the seventh Respondent LIC Housing Finance for the purchase of the property and due diligence was conducted by both the Bank of India and the LIC HF before the loans were disbursed. The first Appellant had also obtained permission from the Department before the purchase of the property. 3. The first Respondent SBFC Finance Ltd had allegedly advanced a loan to Respondents Nos. 2 and 3 for the purchase of the property described as “part and parcel of the property i.e. entire first floor, without roof rights, property bearing No. RZF-2/180, Khashra No. 447, Village Palam, Abadi known as Mahavir Enclave, New Delhi 110045.” The said property was allegedly mortgaged to the first Respondent to secure the loan and contending that the repayment of the loan was defaulted, Sarfaesi measures are being initiated for recovery of the debt by proceedings against the aforesaid property. 4. There seems to be some similarity in the description of the property belonging to the Appellants and the property which was allegedly mortgaged by the borrowers. The property which was purchased by the Appellants and which is in their actual possession and enjoyment is now being proceeded against Respondent No. 1. It is pointed out that the property belonging to Respondent Nos. 2 and 3 is situated in Village Palam and bears the No. RZF-2/180 whereas the property belonging to the Appellants is in Nasirpur village and bears the No. RZ-F-2/180-A. The predecessor’s interest of the

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Appellants had mortgaged the property to Bank of India, Mahipalpur Branch, the sixth Respondent herein. There is also a difference in the description of the property wherein the southern boundary is described as a twenty-feet wide road in the documents of the Appellants whereas the document relied upon by Respondents Nos. 2 and 3 indicated that as a fifteen-foot wide road. Apart from the registered documents in favour of Respondents Nos. 2 and 3, there is no other prior registered document in favour of the alleged predecessors-in-interest of those Respondents.

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It is alleged that orders have been obtained by misrepresentation before the Chief Metropolitan Magistrate (CMM) under Sec. 14 of the SARFAESI Act. An application under Sec. 340 of Cr.PC has been filed by the Appellants before the CMM which is pending consideration. The original title deeds are all deposited with the seventh Respondent. The Appellants as well as their predecessors namely Respondent Nos. 4 and 5 have been in actual possession of the property and have been paying electricity charges as evidenced by the bills produced. 6 The Ld. Presiding Officer has rejected the interim relief on the ground that no prima facie case is made out. 7. It is pertinent to note that there are documents which would indicate the actual possession of the property by the Appellants. There is also a discrepancy regarding the village where the subject property is situated. There is not a scintilla of evidence to indicate the actual physical possession of the subject property by Respondents Nos. 2 and 3 which would weigh heavily against them. The doubt created regarding identity which is being proceeded against the SARFAESI

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Act is crucial and needs to be clarified by adducing evidence in detail. Dispossessing the Appellants from the property would entail irreparable injury to them. Respondents Nos. 6 and 7 have supported the case of the Appellants concerning the creation of the mortgage in their favour. Under the circumstances, it is in the best interest of justice to maintain the status quo till doubt regarding the identity of the property is dispelled.

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Resultantly, the first Respondent is prevented by means of a temporary injunction till the disposal of the S.A. from proceeding against the subject property under the provisions of the SARFAESI Act.

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Since the determination of the interim reliefs would be sufficient to dispose of the appeal itself, I do not intend to enter into the intricacies of the title to the property in this Misc. Appeal. The same will have to be determined after adducing detailed evidence before the D.R.T. in the pending S.A. Hence, the appeal is disposed of. Endeavour shall be made by the Ld. Presiding Officer, DRT-II, Delhi to dispose of S.A. 368 of 2023 as expeditiously as possible at any rate within three months from the date of receipt of this order.

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Sd/-

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Chairperson DRAT, Mumbai & I/c Chairperson DRAT, Delhi

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mks-02(Delhi)

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Sh Rohitash Kumar Meena v. Sbfc Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

Sh Rohitash Kumar Meena v. Sbfc Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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