Dismissed

Mahadev Hari Sarmalkar v. Icici Bank Limited

DRT12 Oct 2022SA/3/2022

Case brief

AI extract

What is this about?

The DRT dismissed a recast application by the bank seeking a stay on enforcement of security interest. The court held that the applicants are not the borrowers and thus have no standing to seek relief against the bank's actions under the SARFAESI Act regarding the flat mortgaged by the actual borrower.

What did the court decide?

The application seeking stay on enforcement and quashing of Section 14 measures is dismissed.

Mahadev Hari Sarmalkar versus Icici Bank Limited — Banking and Recovery | DRT (2022)

¶1

Before Arun Kumar Singal, Presiding Officer DRT - Ill, Vashi, Navi Mumbai.

¶2

S.A. No. 03 of 2022

¶3

23.12.2021 21.01.2022

¶4

ICICI Bankfiimite

¶5

ai at: Office

¶6

d No. 01, I IT Park, Wagle Thane West - 400 604

¶7

And having one of its corporate

¶8

Office at ICICI Bank Towers, Bandra

¶9

Kurla Complex, Mumbai -400 051.

¶10

`:I,hAJ"

¶11

1} .\ o, 2~2-L

¶12

Mr. Ajay Somnath More

¶13

Mrs. Anjali Ajay More

¶14

Both residing at A/302, 8-69, Jas Park

¶15

Co-op. Housing Society Ltd. General

¶16

A. K. VaidyaMarg, Gokuldham,

¶17

Goregaon (E), Mumbai- 400 063

¶18

Fine Platinum (I) Ltd.

¶19

Plot No. 62, SEEPZ, MIDC Road,

¶20

Andheri (E), Mumba - 400 096.

¶21

AinrinedBv

¶22

Ms. Jyoti R. f Mr. Pradeep Respondent 8

¶23

M/s. H & M Legal for the

¶24

ORDER

¶25

rune shall dispose of the Application (I.A. as well as Securitization Application No. whereby, the Applicant has sought the relief espondent No. 1 be restrained from taking any steps

¶26

in respect of flat no. 310, 3rd floor, Ostwal Ornate Building No. 2, Co-op Hsg. Soc. Ltd., situated at Jesal Park, Bhayandar (E), Thane - 401 105 (hereinafter called as flat in question) and to declare the measures taken by the

¶27

Jr\2~ r\ DcO 2L

¶28

¶29

Respondent Bank purportedly under Sec. 14 of the SARFAESI Act be illegal, arbitrary, unl.easonable and unjustified and the sa\me be quashed and set aside and also to stay order dt. 05.04.2021 passed by Addl. District Magistrate, Thane.

¶30

The case of the Applicant is that he and he never applied for the loan received by the Applicant w fraudulently and decef flat in question of whic have better title.

¶31

against the ner and does not

¶32

TheRes|

¶33

the docu

¶34

ibestely without going through oan and further after knowing d harsh steps of attachments and s flat which is unjust and only to harass

¶35

of the Applicant to Respondent Bank not to take any action against his flat in question and not to dispossesshimfromflatinquestionandnottoauctionthe flat in question, carried no fruit, hence this Securitisation Application.

¶36

J....I.``

¶37

\2-.\D,24L&

¶38

Notice of this Application was given to the Respondent BankandRespondentBackappearedandfiledReplyand vehementlyopposedthecontentionsoftheApplicantand hasprayedfordismissaloftheApplication.

¶39

Respondent No. 1 has submitted that Re and3agreedinprincipletograntHo of Rs. 18,78,000/- vide their

¶40

The Respondent No. 2 and 3za€Sbe± RE¥.;O[:7e. terms and conditions tion by duly countersigning the s 18,78,000/- was disbursed in favo No. 2 and 3.

¶41

TheRes

¶42

Way of further security created the Respondent No. 1 in respect of i.e.flatinquestionandhaddeposited title with the Respondent No. 1 in order to repayment of loan. But Respondent No. 2 an irregular in making payments of the equated monthly instalments amounts, so, demand notice was issued on 13.03.2018 calling upon Respondent No. 2 and 3 to clear the dues more particularly mentioned therein but

¶43

ChLResp°ndentN°.2and3failedtodischargetheir|iabiiity. \2. \ o -2J2~'L 4

¶44

This Tribunal has given due consideration to the arguments advanced by respective counsel for the parties and has gone through the documents placed on record.

¶45

The Respondent No. 1 took symbolic p ossession of the immovable property as per process The RespondentNo.1alsofiledanApplicatfi±n Addl. District Magistrate, Thane

¶46

SARFAESI Act, 2002 which was`

¶47

05.04.2021, so, according tQ

¶48

is not maintainable

¶49

resent S.A.
ssed

¶50

It is the plea

¶51

It is the plea t he is not the Borrower rather Resp well as Applicant is victim of fraud spondent No. 2 upon them but of Applicant that Respondent No. 2 d the Applicant in the year 2007 for e# f flat in question and since the Applicant was in I money, so, he agreed to sell flat in question to Respondent No. 2 at the agreed value of Rs. 21,23,000/and Respondent No. 2 thereafter executed the agreement sale with the Applicant by paying earnest money of

Lfor

\1 I \ a ,2„ L2-

Rs.3 1ac and the said agreement for sale was registered before Joint Sub-Registrar Office, Thane.

¶56

According to Applicant it was agreed between him and Respondent No. 2 that Respondent No. 2 will the rest of the amount to the Applicant by availin financial institution and thereafter the saidflatwillbetransferredinthenam<

¶57

No. 2 and Sale Deed will be

¶58

thereafter with respect to . Thus, there is an admission of he executed agreement for sale seisirered before Joint sub. Registrar, r h of this agreement of sale, iled the loan from Respondent No.1 admission of Applicant that he a original agreement for sale between him M/s. Shree Ostwal Builders Pvt. Ltd. 01 to Respondent No. 2 and the agreement for agreement for sale between Applicant and Respondent No. 2 has been given to the Bank while availing the loan by Respondent No. 2 and counsel for Applicant has admitted that Applicant was not in

¶59

drwlp°Ssess±°n°ftheaoreementforsale,so,ifanyfraudhas \1, \ Or" 2-i 6

¶60

di i! =

¶61

been committed by Respondent No. 2 with Applicant then Applicant can seek appropriate remedy qua Respondent No. 2 and as per, the counsel for Applicant, the Applicant has already lodged the complaint against the Respondent No. 2.

¶62

Since, the Respondent No. 2 has ±a mortgaging the flat in question Bank and Bank is taking actions as per provisions of

¶63

Assets Applicant is

¶64

not entitled to any relief.

¶65

Applicant has

¶66

Respondent 8

¶67

nge the order obtained by Sec. 14 from Addl. District

¶68

in question has been mortgaged by t No. 2 with Bank while taking loan and No. 2 already committed default and his account has already been classified as NPA and demand notice under Sec. 13(2) has already been issued to him, so, Respondent Bank can secure the repayment of the debt by

¶69

oil enforcing the security interest i.e. flat in question \ 2_ r \ I, , 2„2-i

¶70

mortgaged by Respondent No. 2 with the Bank as Respondent No. 2 is the lawful owner of the flat which he purchased from the Applicant vide agreement for sale dt. 26.07.2007 which Applicant has executed in favour of the Respondent No. 2 after accepting Rs. 3 lac as admitted by theApplicantiftheRespondentNo.2hasfailese balance sale consideration of the flat Applicant then Applicant sue recovery.

¶71

There is hardly any for Applicant. Application same are hereb

¶72

of the counsel gff i of 2!f jf r2 ;; -;;;-as ®22 are devoid of merit, so, with cost and all other pending

¶73

•,.. ' ..,.. . i .'-`.I... :.I. ,

¶74

P.O. DRT - Ill

¶75

Mahadev Hari Sarmalkar v. Icici Bank Limited

Case brief

What is this about?

What did the court decide?

Mahadev Hari Sarmalkar v. Icici Bank Limited

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

Coram

Case details

Similar cases

Mr Laxman Shashikant Kalal and Mrs Hemlata Shashikant Kalal versus Axis Bank

Ms Citizen Textiles versus Bombay Mecantile Co-Op Bank Ltd.

M/s Ashirwad Builders through sole proprietor Santosh Thakur versus Encore Assets Reconstruction Company Private Limited

Ms Mega packs Suman Jangida versus Samarth Sahakari Bank Ltd.

State Bank of India versus M s Gandeep Dignostics

Mr Raaman Vishnudatt Sharma versus Equitas Small Finance Bank Ltd.