The Debt Recovery Appellate Tribunal dismissed an appeal against an order of the DRT, Guwahati, upholding that a borrower cannot claim priority over a bank mortgage via a notarized agreement to sale within the framework of Section 54 of the Transfer of Property Act, 1882.
Impugned order dated 09.01.2024 confirmed. Appeal dismissed. No costs.
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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
Misc. Appl. Dy No. 159 of 2024
(Arising out of O.A. No. 431 of 2019 – DRT Guwahati)
THE HON’BLE JUSTICE SHRI ANIL KUMAR SRIVASTAVA, CHAIRPERSON
Order No.03
13.03.2024
Smt. Yamje Dulom Tamin @ Yamje Loriak Tamin, C/o. Tamin Namio, B-Sector, Ward No. 18, House No. 301, PO & PS Itanagar, Dist. Papumpare, A.P. 791 111.
… Appellant
Vs.
….. Respondents
For Appellant : Mr. Dwijadas Chakraborty, Ld. adv. For Respondent : Mr. P. K. Mukherjee, ld. Adv.
THE APPELLATE TRIBUNAL :
Instant appeal has arisen against the order dated 09.01.2024 passed by learned DRT, Guwahati in I.A. No. 89 of 2020 arising out of O.A. 431 of 2019 [Union Bank of India Vs. Mr. Milan Saikia] wherein I.A. was dismissed as devoid of merit.
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Heard learned counsel for the parties and perused the records.
Bare perusal of the impugned order would show that there was a mortgage in favour of the respondent bank against a loan availed by the borrower from the bank, which is not disputed by either of the parties. It appears that borrower allegedly executed a notarized agreement to sale in favour of the appellant. Learned counsel for the appellant submits that appellant is in possession of the mortgaged property and has already paid Rs.73.00 lakhs in 2017. Learned DRT has recorded a categorical finding that appellant cannot claim protection under the garb of a Notarized Deed of Agreement for sale when the property in question was mortgaged in favour of the bank. Section 54 of the Transfer of Property Act, 1882 specifically provided as to how the sale of immovable property can be made. Merely on the basis of a notarized agreement to sale appellant cannot take any advantage. Further, in view of the fact that charge was already created in favour of the bank over the secured asset. I do not find any illegality in the impugned order. O.A. is pending since 2019. Appeal is devoid of merit and is liable to be dismissed in limine at the stage of admission.
O R D E R
Appeal is dismissed. Impugned order dated 09.01.2024 is confirmed. No costs.
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File be consigned to record room.
Copy of the order be supplied to the appellant and the respondents and a copy be also forwarded to the concerned DRT. Copy of the judgement/Final Order be uploaded in the Tribunal’s website.
Order dictated, signed and pronounced by me in the open Court on this the 13th day of March, 2024.
(Anil Kumar Srivastava, J) Chairperson
Dated : 13.03.2024 04 /pkb
1 issue framed by the court
Whether the appellant can claim protection under a notarized agreement to sale when the property is mortgaged in favour of the bank.
Smt. Yamje Dulom Tamin
Union Bank of India
Anil Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
