The Appellant appealed against an order directing delivery of a mortgaged property to an auction purchaser. The Tribunal held that the Appellant failed to prove tenant or purchaser status due to unregistered documents and lack of specific performance, dismissing the appeal.
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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson
Appeal No. 356/2015
Between
Sanjay Harbanslal Arora … Appellant/s V/s.
Bank of Maharashtra & Anr.
…Respondent/s
Mr M. M. Avhad, Advocates for the Appellant. Mr Darshan J. Solanki, i/b M/s Theba & Associates, Advocate for Respondent Bank.
-: Order dated: 11/09/2024:-
The appellant assails the judgment dated 30/11/2015 dismissing Appeal No. 8 of 2015 by the Debts Recovery Tribunal, Aurangabad (D.R.T.), which was filed by him under Sec. 30 of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 (“RDDB & FI Act”, for short) challenging the order passed by the Recovery Officer, D.R.T. in Recovery Proceedings (RP) No. 35 of 2006 dated 23/03/2015.
Late Punjaji Tamkhane was the original owner of the subject property. The appellant claims to be in possession of the secured asset, namely, CTS No. 15184 in survey No. 13/2, sheet No. 146, Uttam Nagar, commercial area 1130 ft² of Jawahar Colony Road, Aurangabad (subject property) allegedly under a lease to the appellant’s father by the aforesaid Punjaji. Thereafter, in 2000, late Punjaji agreed to sell
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the subject property to the father of the appellant, and in part performance of the agreement for sale, a sum of ₹4 lakhs was paid to Punjaji. There was pending litigation between the Municipal Council Aurangabad and the deceased Punjaji; therefore, the sale deed could not be executed during his lifetime. After the demise of Punjaji, his legal heirs did not receive the balance sale consideration which, the appellant was willing to pay to execute the sale deed. The appellant issued a notice to the legal heirs of Punjaji seeking specific performance of the agreement to sell followed by the filing of a civil suit before the Civil Judge, Senior Division, Aurangabad as Special Civil Suit No. 193/2005, on 30/04/2005. The respondent bank intervened in that suit stating that the subject property was mortgaged to the bank by late Punjaji. The civil suit was decreed in part on 02/03/2011 directing the legal heirs of the deceased Punjaji to refund the earnest money deposit(EMD) paid to the late Punjaji under the agreement to sell. Dissatisfied, The appellant preferred an appeal before the Hon’ble High Court of Bombay, Bench at Aurangabad which was subsequently transferred to the District Court, Aurangabad in consequence of the redefining of the pecuniary jurisdiction of courts. The suit is still pending adjudication before the District Court. 3. It was contended by the bank that the subject property was mortgaged to the bank by the late Punjaji in favour of the bank on 12/12/1996, and he defaulted in repayment of the debt. The bank filed a civil suit as Special Suit No. 194/2003 before the Civil Judge, Senior Division, Aurangabad for recovery of the amount due from the legal representatives of late Punjaji. Though the legal representatives
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of Punjaji appeared in the civil suit, they did not file any written statement resulting in an ex parte decree being passed against them for recovery of ₹ 7,34,283/-together with interest at the rate of 13% per annum with a charge over the subject propert vide judgment dated 01/09/2005.
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Bombay, Aurangabad bench which was dismissed for default. Appeal No. 16/2009 was dismissed on 24/12/2014 for non-payment of cost to the bank and the auction purchaser as directed by this Tribunal. The appellant filed an appeal again before this Tribunal but did not get any favourable orders. Submission was made before the Recovery Officer regarding the filing of the appeal before this Tribunal. As there were no favourable orders obtained by the appellant, the Recovery Officer vide order dated 23/03/2015 directed delivery of the subject property to the auction purchaser with police assistance.
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auction purchaser and that has now become final. The present appeal filed by the appellant as Appeal No. 8 of 2015 is challenging the order of the Recovery Officer directing the possession of the property to be handed over to the auction purchaser. There was no consideration by the Recovery Officer on the rights of the appellant. Necessarily, the Ld. P.O. has also not entered the findings regarding the right of the appellant to question the Sarfaesi action initiated by the bank.
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failed to establish his right to continue in possession of the property. 10. The appellant has raised a contention that the D.R.T. has no jurisdiction to entertain the O.A. where the suit filed by the bank was disposed of by the Civil Court after the RDDB & FI Act came into force. The Ld. Counsel for the appellant has relied on the decision of the Hon’ble High Court of Bombay Bench Aurangabad in Writ Petition No. 13264 of 2017 namely Abarao vs. IDBI Bank & Ors .
Interim orders shall continue for two weeks from receipt of the copy of the order.
Sd/-
Chairperson
mks-01
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3 issues framed by the court
Whether the Appellant can establish rights to possession as a tenant or a purchaser in part performance against the mortgagee bank.
Whether the Debts Recovery Tribunal has jurisdiction to decide on the rights of the Appellant who did not raise an objection under Sec. 31A of the RDDB & FI Act.
Whether an unregistered and insufficiently stamped agreement for sale and lease deed can sustain a claim to possession.
Colour shows how this judgement treated each authority
Suraj Lamps and Industries Pvt. Ltd. vs. State of Haryana & Ano.Followed¶25
(2012) 1 SCC 656 · Who else cites this
Abarao vs. IDBI Bank & OrsReferred¶27
Writ Petition No. 13264 of 2017 Abarao vs. IDBI Bank & Ors
2 provisions across 1 enactments
Sanjay Harbanslal Arora
Bank of Maharashtra & Anr
Ashok Menon
As recorded by the court registry
7 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
Ashok Menon
Parties & counsel
