Dismissed

Ms Meenu Raisurana v. Kotak Mahindra Bank Limited

DRT19 Aug 2023SA/128/2022

Case brief

AI extract

What is this about?

The applicant challenged SARFAESI action taken by the bank against a property in which she claimed an interest. The Tribunal held that a later partition decree was not binding on the mortgagee as the property was mortgaged before the decree. It also held that SARFAESI proceedings are valid even after the issuance of a recovery certificate.

What did the court decide?

Stay of notices under Sections 13(2), 13(4) and Section 14 of SARFAESI Act rejected; SA dismissed.

Ms Meenu Raisurana versus Kotak Mahindra Bank Limited — Civil Procedure and Limitation | DRT (2023)

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Debts Recovery Tribunal-Il, Delhi

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sA 128 0F 2022

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MS. MEENU RAISURANA VS. KOTAK MAHINDRA BANK LTD.

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Reserued on: 08.08.2023 Pronounced on: 19.08.2023

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Present:

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Shri Rajeeve Mehra, Sr. Advocate along^with Sh. Aditya Malhotra, counsel for applicant. Sh. Ravi Gupta, Sr. Advocate along with Ms. Sanya Lamba, counsel for respondent bank. Sh. Pallav Saxena, counsel for respondent no.2 to 4.

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This SA has been filed by the applicant against the respondent bank and five other respondents under Section 17(1) of the SARFEASI Act,2002 with the request to stay the notice issued under Section 13(2), 13(4) and Section 14 of SARFEASI A:I,20O2 qua subject property viz. 8-384, Second Floor, New Friends Colony, New Delhi-l10025 admeasuring 492 sq.yds. alongwith one car parking on the ground floor, one servant room with common bathroom and water closet on the terrace and exclusive use of half terrace above second floor towards the front together with one third undivided indivisible and inalienable ownership rights in the land underneath the whole building. It has also been prayed that the operation of the order passed by the Ld. CMM dated 04.04.2022 and Court Receiver notice dated 22.04.2021 be also stayed and restrained the respondent no.l and its agents from taking any coercive action in respect of the above mentioned propefi.

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The brief facts of the application are that as per application, the SA applicant has the exclusive domain and control to the exclusion of other co-owner of the bedroom and attached toilet located in the front portion of the subject V

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property. Beside law she^{is in joint possessionwith other two} co-owner respondent^no. 3^{and 6 over each nookand} corner of the subject^{property.The aforesaid bedroomand} attached toilet is under^{the lock and key of the applicantand} whenever the applicant^{visits Delhi she stays in the aforesaid} property without any disturbance. The applicant^{has also} mentioned the detail as to^{how the property cameunder} ownership of the applicant. It^{has been submitted that the} property no. 8-384 was owned by Mr. Ashok Dewan^Krishna from Sh.Ashok Dewan Krishna it came to Sh.^{Raj Singh} Gahlot and from Sh.Raj Singh Gahlot to^{respondent no.4 and} ultimately it came under the ownership of Sh.^Mahender Kumar Bhansali^qua the front^portion of the subject^property. Vide registered partition deed dated 29.04.2003 executed between Mr. Mahender Kumar Bhansali and respondent no.3 as one party and Mr. Ashok Sharma and Ms. Queenie Sharma as the other pafi, the subject^property fell into the exclusive domain and ownership of ground floor and second floor of the subject propefi. The respondent no.3 illegally and dishonestly compared and quashed and obtained execution of release deed dated 28.07.20L0 by Mahender Kumar Bhansali in his favour. Respondent no.3 also exercise undue influence and dominated the will of Mr.Mahneder Kumar Bhansali who was staying with him and thus mislead Mr. Mahender Kumar Bhansali into executing release deed dated 28.07.2010 which is an illegal and void document. The release deed dated 28.07.2010 was not known to the applicant. Disputes emanated amongst the member of the family which lead to execution of partition suit being CS (OS) no. 228 of 2019 titled as "Ms. Kusum Bhandari and Anrs. Vs. Munish Kumar Bhansali" before the High Court of Delhi. In the plaint it was contended by the applicant and respondent no.3 and 6 that one half of the subject property is owned by V//

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the respondent^{no.3 whereas the remaining one half thereof} belongs to late^{Mr. MahenderKumar Bhansali'The suit was} amicable resolved^{beforethe Mediation Centre of the Hon'ble} High Court of Delhi and a^{settlement agreement dated} 29.08.2019 was executed. It^{was inter-alia agreed that} respondent no.3 and 6 each will^{be entitled to 1/3'dsharein} 50% of the entire second floor^{towards the front including} the right of one car^{parkingon the ground floor, one servant} room with common bathroom and^{water closet on the} terrace and exclusive use of half^{terrace above second floor} towards the front together with one third^undivided indivisible and inalienable ownership rights in the^land underneath the whole buildilO. The respondent no.3 illegally mortgaged the subject^property in favour of respondent no.1 claiming himself as exclusive^proprietary owner. On t7.04.2022, respondent no.3 has telephonically informed that the Hon'ble CMM South East District, Saket, New Delhi has passed order dated 04.04.2022 under Section 14 of the SARFAESI Act. On that date the applicant came to know about the fact that the subject^property has been mortgaged by the respondent no. 2 to 5 in respect of credit facilities availed by them from respondent no.1. The applicant requested to respondent no.3 to part with the documents relating to the loan/moftgage and also recovery proceedings initiated by the respondent bank in respect of the subject property but the respondent no.3 refused to do so. The respondent no.3 also informed the applicant that respondent no.1 has filed an original application no.576120L6 against respondent no.2 to 5 before Honble DRT-I, Delhi which has been allowed and consequently recovery certificate has been issued which is pending for execution. It has also been informed that in the recovery proceeding bearing RC 16412019 the subject ,ptopttty has been ordered to be V

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attached by the Recovery Officer of^{DRT-I,Delhi.The} applicant reseryes her right to file^{objectionsand take} appropriate legal actions in the^{OA. The notice under the} SARFEASI Act has not been^{issued to the applicant therefore,} the applicant could not take the benefit^{of filingobjections} against the SARFEASI action taken by the^{respondent no.l.} It has been submitted that respondent no.3 was^{not the} exclusive and sole owner of the subject^propefi and U6s share each thereof belong to applicant and respondent no.6, therefore, alleged mortgage as claimed by the respondent no.1 in the subject property is illegal, void and inconsequential. No^person can convey a letter title than his own as decided by the Honble Supreme Court in "Girdhari Lal Tiwari VS. UOI" 2000 SCC online Delhi page 619 and "Ram Lal Vs. Phagua" 2006 (ISCC) page 668 and "Shashi Kanta Vs. Sadhan Midha" 2001 (94) DLT^page 111 and "Ram Das Vs. Sita Bai'2009 (7) SCC^page 444.It has been claimed that there is no enforceable security interest on the mortgage, therefore, the entire action of the respondent no.1 against the subject property is nullis juris and void abnitio. The action of the respondent no.1 is in violation of the order passed by the Hon'ble High Court of Delhi in CS(OS)228I2019 and is also contemptuous and illegal. The respondent no.1 has already succeeded in the OA 576120t6 and same has culminated into a recovery certificate, the respondent no.l is not competent to take recourse to SARFEASI action in respect of the subject propefi. The definition of the debt has been defined in Section 2(1) (ha) of the SARFEASI Act, which has the same meaning as in Section 2(g) of RDB Act. The Section 2(9) of the RDB Act does not include the amount due on recovery certificate to be debt. The recovery certificate has been issued under Section 5A(4) of the SARFEASI Act, hence the secured V

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creditor has the only remedy to^press for the execution of the recovery certificate. On the^principle of the Section 44 of the TPA Act respondent no.1 will be entitle to seek possession of the subject property in so far as it relates to share of respondent no.3. The aforesaid provision only entitles the third^party transferee a right of a co-owner of a joint/undivided property to seek partition by meets and bound and not to enter upon the^{propefi physically.} The applicant has also claimed that though the right to^property has not remained a fundamental right but the Hon'ble Apex Court in "Karnataka State Financial Corporation Vs. N.Narsimahaiah" 2008 (5) SCC page 176 has held that right of property is a constitutional right. In absence of any express^provision this Tribunal cannot deprive the applicant's right to property in the subject^property. The applicant has also mentioned the^judgement of the Hon'ble Supreme Couft in "Laxman Das Vs. Jagat Ram and Ors."2007 (10) SCC page 438 whereby it has been held that the right to^property is a constitutional right as well as human right. Therefore, it has been claimed that all the actions initiated by the respondent no.1 against the applicant are illegal and liable to be restrained. On such grounds, the applicant has sought the relief to stay the notice issued under Section 13(2), 13(4) and Section 14 of SARFEASI Act,2002^qua subject^property.

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The respondent no.l bank appeared and filed its reply on the application. The respondent bank vehemently denied the allegations of the applicant and submitted that the respondent bank provided financial facility to the respondent no.2 (borrower company) to the aggregate amount of Rs.22.46 Crores. The said financial facilities were secured by guarantee executed by respondent no.3, respondent no.4 and respondent no.5. For securing the due repayment of financial facility granted to Vrespondent no.2, the respondent

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no.3 and borrower company executed^{credit security interest} in favour of respondent no.l by way of depositing^original title deed of the immovable^propefi. It^{has also been} submitted that the title deeds of the immovable^property were the property owned by Mr. Munish Kumar^Bhansali which includes all that^piece and^parcel of the^property bearing entire 2nd floor having an area admeasuring^2976.62 sq.ft. of the building bearing no.B-384 area measuring⁴⁹² sq.yds. situated at New Friends Colony, New Delhi which^is subject property. The title deed of the^property owned by M/s KEW Precision Parts tut.Ltd. regarding all the^piece and parcel of property being plot no.212, Block-B, area admeasuring 11190.65 sq.mtrs with all its^present and future super structure situated at Phase-II, Noida, Distt. Gautam Budh Nagar, Uttar Pradesh were also mortgaged. For creation of the equitable mortgage over the above said property the memorandum of deposit of title deeds was executed by respondent no.2 and respondent no.3 and a sanction letter was issued on 23.1L.20t2 and memorandum of deposit of title deed was executed on 07.02.2014. The borrower, moftgagor and guarantor are jointly and severally have failed to make the repayment of the amount due and outstanding under the flnancial facility granted by the respondent no.l and accordingly the loan was classified as NPA on 30.09.2015. The notice under Section 13(2) was issued on 19.011.2015 to the borrower,mortgagor and guarantor and it was called upon them to make a repayment of Rs.18,65,05,035.86. The respondent no.1 bank proceed under the provision of Section 13(4) and Section 14 of the SARFAESI Act accordingly and the Ld. CMM, Saket passed the order dated 28.04.2016 for taking over the physical possession of the subject property. The action taken by the respondent bank under SARFEASI Act was challenged by the Y

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respondent no.2 under Section 17 of the SARFEASI Act before the Ld. DRT, Lucknow in SA no.250/2016 titled as "M/s KEW Precision Parts h^.Ltd. and Ors. Vs. Kotak Mahindra Bank" and this SA was allowed and the action taken by the bank was^quashed vide order dated 10.04.2017. The respondent bank again issued a fresh statutory demand notice on 13.t2.2017 to borrower/moftgagor/guarantor under Section 13(2) of the SARFEASI Act and called upon them to make a^payment of Rs.34,79,70,950/- due as on 07.12.2017 which was duly served to borrower/mortgagor/guarantor. The respondent bank^proceeded under the^provisions of the Section 13(4) and accordingly took the symbolic possession of the propefi on 17.04.20L8. The respondent bank proceeded under Section 14 of the SARFEASI Act before the Ld. CMM, Saket, New Delhi. The Ld. CMM, SAket, New Delhi had passed the order dated 16.07.2018 for taking over physical^possession of the subject property. The respondent no.3 challenged the above said order dated 16.07.2018 passed by Ld. CMM, Saket Court before Hon'ble Delhi High Court by way of Writ Petition bearing WP (CRL) 2397 of 2018. The above petition was dismissed by the Hon'ble Delhi High Court vide order dated 19.08.2019. After dismissal of the said Writ Petition the respondent no.6 preferred a frivolous collusive suit against respondent no. 3 both being sister and brother being CS(OS) 22812019 titled "Mrs. Kusum Bhandari Vs. Manish Kr. Bhansali" before Hon'ble Delhi High Court inter-alia claiming her right in the subject property. In collusion with all the parties the matter was referred to the Mediation Centre of the Hon'ble Delhi High Court and a settlement report was prepared as Samadhan in the Mediation and Conciliation Centre, New Delhi. The above suit was decreed in terms of the family settlement dated 29.08.2019. The counsel

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representing the borrower company and other directors/mortgagors^(Manish Kr. Bhansali) before the^Ld. R.O., DRT-I, Delhi in recovery^proceedings and also appeared for^{present petitioner} in CS^(OS) 22812019 filed against respondent no.1. The application filed under the Section 14 of the SARFEASI Act was allowed by the Ld. CMM, Saket Court vide order dated 04.04.2022. The respondent no.6 i.e. Mrs. Kusum Bhandari aggrieved by the order dated 04.04.2022 preferred a Criminal Writ Petition before the Hon'ble Delhi High Court challenging the said order on such grounds as mentioned therein. In this Writ Petition the same counsel has represented the respondent no.6. The above Writ Petition was withdrawn by the petitioner after detailed arguments. The respondent no.1 has also preferred an original application under Section 19 of the RDB Act for recovery of an amount of Rs.16,13,40,574.79 against the borrower, guarantor and moftgagor before Ld. DRT-I, New Delhi which was registered as OA no. 57612016. The borrower/guarantor/mortgagor appeared before the Ld. DRT-I and sought time to file reply. Further, they failed to appear before the Tribunal and accordingly the OA was decreed exparte vide order dated 21.05.2019. In terms of the order dated 21.05.2019, Ld. DRT-I, Delhi issued recovery certificate and thereafter RC proceedings were initiated against the borrower/guarantor and moftgagor. When the respondent bank proceeded to sell the mortgaged propefi under the order^passed by ld. Recovery Officer, the very first time respondent no.2 and respondent no.6 preferred their respective objections before the Ld. R.O., DRT-I, Delhi. The respondent no.1 is duly contesting the said proceedings and replies have been filed in the above proceedings. The respondent no.1 has also submitted that the respondent bank has initiated proceedings under Section 138 of the NI V

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Act against respondent no.2 to 5 before the Ld. MM, Dwarka, New Delhi. The said^proceedings are still^pending before the concerned Couft. It has been claimed that the^proceedings before the Honble High Court in the^partition suit^has been filed with a view to defraud the respondent bank and without the consent of the respondent bank, therefore, such proceedings are not binding on the respondent bank. Therefore, it is prayed that the SA application of the applicants may be rejected.

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The respondent no.2 to 4 has filed their replies and in the reply they have supported the submissions raised by the applicant and has further submitted that the respondent no.3 derived its authority to the subject propefi inter-alia from Release Deed dated 28.07.2010, however, subsequently by settlement agreement dated 29.08.2019 which was duly approved by the Hon'ble Delhi High Court vide order and judgment dated 18.09.2019 in CS(OS) 22812019, the applicant has right, title and interest in the subject property, It has also been submitted that prior to availment of credit facilities allegedly sanctioned to the respondent no.2 was availing credit accommodation from Punjab National Bank. The officials of the respondent bank contacted respondent no.2 and respondent no.3 and assured them of giving implacable banking services and induced respondent no.2 to 3 to shift their loan account/credit accommodation from PNB to respondent no.1. The respondent no.2 induced by the official of respondent no.l had agreed to the availment of loan facilities from respondent no.l in nature of balance transfer by way of liquidation of the loan account maintained by PNB. During course of negotiation between respondent no.2 and 1, the respondent no.2 made it clear by furnishing business report and date rectifuing working capital of Rs.100 Crores for viability of theginess and the same were duly

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examined by respondent no.1. the respondent^no.1 proceeded to issue sanction letter dated 23.LL.2012 indicating the credit limit to be Rs.8.5 Crores and not Rs.10 Crores. Due to this arbitrary reduction of credit limit,^the respondent no.2 was^placed in a^quandary in as much as if it refused to accept even the said loan limit its business would have been totally ruined for the lack of funds. The respondent no.1 has committed breach of^promises and also used its dominant^position to compel the respondent no.2 to 4 not only to accept its terms of sanction letter but also append signatures on unfilled formats without being afforded any opportunity of understanding the contents of the documents. The alleged loaning documents are void and inconsequential inter-alia for want of consensus ad-idem. Respondent no.1 compelled respondent no.2 to accept the sanction letter dated 23.1t.2012, because of which the respondent no.2 could not negotiate with PNB on the way of foreclosure charges. Due to lowering of the credit limit the respondent no.2 could not cater the orders in hand and suffered huge financial losses. Despite this the respondent no.2 continued his business and accepted the terms of the respondent no.1. The officers have also assured rectification of erroneous sanction letter dated 23.LL.2012. During this period the respondent no.1 pronounced the said amount to be overdrawn by 1.4 Crore leading to not only levy of penal interest but also stoppage of fund. Due to this act of the respondent no.1 the respondent no.2 have suffered heavy losses. As the respondent no.l has issued a sanction letter of Rs.8.5 Crores instead of Rs.10 Crores, the respondent no.1 has violated the master circular no.DBOD no.BPBC Ll2t.04.O4Bl20l3-14, therefore, the sanction letter is voilative of RBI guidelines. The account of respondent no.2 never NPA because the irregularities were only temporary. >.-

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The respondent no.2 has applied for restructuring of the loan but the respondent no.1 has not accepted the restructuring and proceeded to declared as NPA in violation of the all norms issued by the RBI. The respondent no.2 has again requested for restructuring of the amount but the same was also not accepted by the respondent no.l. The respondent no.1 has charged exorbitant rate of interest and levelled penal interest without any basis and even compounded the same in violation of the contractual stipulation and dictum of "Central Bank of India Vs. Ravindra & Ors." 2002 l SCC 366. No amount is due and recoverable from respondent no.2 to 4, therefore, the SARFEASI Action taken by the respondent no.1 is illegal and void. It has also been submitted that the notice issued under Section 13(2) was quashed by the DRT, Lucknow as it was against the provisions of the SARFEASI Act. Therefore, it has been claimed that respondent bank has no^ground to^proceed under the SARFAESI Act against any of the borrower/mortgagor/guarantor and the SARFEASI Action taken by the respondent bank be declared void.

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During the course of the arguments the respondent no.6 appeared and has submitted their oral arguments which were more or less same as advanced by the ld. counsel of the applicant. Till submission of the arguments and fixing of the case for^judgement the Ld. counsel of the respondent no.6 has not put his Vakalatnama on the file and has also not filed any written reply. After fixing of the case for judgement the Ld. counsel of the respondent no.6 has submitted the Vakalatnama and written submissions. Though at this stage it cannot be allowed to any party to file Vakalatnama and written submission as the case has already been fixed for^judgement, this Tribunal will look into the V

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arguments of the respondent no.6 wherever it is required to decide the case of merit.

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The applicant as well as respondent no.1 to 4^have filed their evidence which are^part of the^present SA.

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The Sr. Advocate Shri Rajeeve Mehra for the applicant and Ld. counsel Sh. Pallav Saxena for respondent no.2 to 4 has made a very lengthy and elaborate arguments for a number of days and brought the attention of this Tribunal to a number of^provision of the SARFEASI Act and RDB Act and also filed bunches of written arguments along with a number of^{judgementspassed} by Honble Supreme Court and Hon'ble High Court. The Ld. Sr. Advocate Sh. Ravi Gupta for respondent no.1 has also filed the written submissions and has also submitted oral arguments before this Tribunal. This Tribunal perused the entire pleadings, evidence, oral submissions as well as the written submissions filed by the respective pafties and also gone through various^judgements submitted by the parties.

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Before going on merits of the case as claimed by the respective parties in their pleadings, the Ld. counsel of the applicant has made an argument in his written submission though the same was not argued during oral submissions, that the short reply submitted by the respondent no.1 cannot be considered and cannot be read'because it has not been verified by the respondent no.l. Ld. counsel of the applicant has submitted that the short reply does not come within the meaning of WS as it has not been verified by the respondent bank, therefore, under Order VIII rule 3,4 and 5 CPC it cannot be read as WS. Ld. counsel has also submitted that the short reply cannot be read as a reply because it has not been filed in the proforma Appendix-Vll of the SARFEASI Act L--,-

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which prescribe the proforma for filing the reply. The Ld. counsel has also placed reliance on a judgement "Gautam Gambhir and Ors. Vs. Jai Ambe Traders and Ors" ManuiDE/150912020 and "Kanika Swami Vs. State of Uttar Pradesh" 2017 SCC online, Allahabad which propounds that the written statement without verification is no pleading in eyes of law and it wholly inadmissible. It has also been claimed that this Tribunal may proceed under Order VIII Rule 10 of the CPC and pronounced the^judgement. I have gone through the^judgements passed by Hon'ble Supreme Court in the Gautam Gambhir case and Kanika Swami case and also perused the RDB Act and SARFAESI Act. Under Section 17 of SARFEASI Act if any^person is aggrieved by the measures taken by the bank under Section 13(4) of the SARFEASI Act it may file an application before the DRT having^jurisdiction for the relief as^prescribed under the SARFEASI Act. Therefore, under SARFEASI Act no^plaint is required to be filed and the rules of Order VIII CPC does not apply in the SARFEASI proceedings. It has specifically provided in the RDB Act that the Debt Recovery Tribunals are not bound by the rules of CPC but they will decide the cases on the basis of natural justice. Therefore, the reply filed by the respondent no.1 cannot be termed as written statement and the reply cannot be weighed on the basis of the^{provisionsprovided} in the CPC for filing of the written statement. Therefore, the argument of the applicant that the reply of the respondent no.1 may not be read at the time of deciding the case has no force. As the provisions of the CPC regarding the^pleadings are not applicable in the SARFAESI Act, therefore, the judgement of Hon'ble Supreme Court passed in the Gautam Gambhir case does not apply in the^present SA. Moreover, on perusal of the reply filed by the respondent no.1 it is clear that it has been signed by the^quthorized officer of the Kotak L-,''

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Mahindra Bank Ltd. on 12.05.2022 at page no.15 of the written reply and a short affidavit has been filed by Sh. Viswanadham Akondi, Chief General Manager Legal verifoing all the^paras of the reply. In this short affidavit it has been mentioned at para no.2 that the accompany short reply is drafted by my counsel at my instructions and the same are true and correct. The deponent craves leave of the Honble Tribunal to read the contents of the same as part and parcel of the contenb of this affidavit als. The aforesaid affidavit has been verified by the deponent as per law. Therefore, it cannot be claimed that the reply is in violation of the Appendix-Vll of the SARFAESI Act. On the above ground, this argument of the Ld. counsel of the applicant cannot be sustained and no benefit can be^given to the applicant on this ground.

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Now this Tribunal is^going to weigh the^pleadings and evidence on the merit of the SA application.

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From the perusal of the pleadings submitted by the respective parties and the arguments it is evident that the first main contention of the applicant is that the applicant is the co-owner of the subject property and respondent no.1 has no right to mortgage the subject property claiming to be the exclusive owner of the subject propefi. It has been submitted by the Ld. counsel of the applicant in his SA in para no.3 as to how the subject property came under the ownership of Sh. Mahender Kumar Bhansali. The respondents and the respondent bank is not disputing the way in which the property devolve on Sh. Mahender Kumar Bhansali. Therefore, this Tribunal need not to go into the validity of the various submissions made by the Ld. counsel of the applicant in his SA in para no.3. The main dispute arises after V

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devolution of the property to Mahender Kumar Bhansali. It has been claimed that Sh. Mahender Kumar Bhansali was residing with respondent no.3 and respondent no.3 exercise undue influence and dominated the will of Mahender Kumar Bhansali and thus gullible and vulnerable to mislead Mr. Mahender Kumar Bhansali and the respondent no.3 by using the above influence managed for execution of release deed dated 28.07.2010 from Sh. Mahneder Kumar Bhansali. It has been claimed that the release deed dated 28.07.2010 is illegal and void document. No order of the Civil Couft has been filed before this Tribunal in which it has been declared that the release deed dated 28.07.2010 is illegal and void document. Respondent no.2 to 4 and 6 has also submitted the same fact that the release deed dated 28.07.2010 was not executed by Sh. Mahender Kumar Bhansali with free will and having full knowledge of the release deed. In absence of any evidence regarding the facts submitted by the Ld. counsel of the applicant and the Ld. counsel of the respondent no. 4 to 6 it cannot be^presumed that the release deed dated 28.07.20t0 is an illegal and void document.

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Though it has not been pleaded by the applicant and the respondent no. 2 to 4 and 6, it appears that the applicant and respondent no. 2 to 4 and 6 want to say that the release deed dated 28.07.20t0 would be deemed to be void due to the^passing of the consent decree^passed by the Hon'ble High Court in CS (OS) no. 22812019 titled as "Ms Kusum Bhandari and Anr. Vs. Munish Kumar Bhansali" . It has also been claimed in the above partition suit the Hon'ble Delhi High Court has passed the decree by virtue of which the applicant has been declared as the co-owner of the propefi, therefore, the respondent bank cannot proceed against the subject property of the applicant. On the other hand, the Ld.

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counsel of the respondent no.l has submitted that the loan was taken in 2012 and title deeds were deposited on 07.12.20L2 and the loan was declared NPA on 30.09.2015 while the order of the Honble Supreme Court in the^partition suit is of 18.09.2019, therefore, this^judgment is not binding on respondent no.1. This mutual consent decree has been secured from the Hontle High Court only with a view to defraud the respondent no.l, therefore, the above decree is not binding on the respondent no.1 bank. The Ld. counsels of the applicant and respondent no.2 to 4 and 6 have vehemently argued that this Tribunal cannot ignore the decree^passed by the Hon'ble Delhi High Court as the Hon'ble Delhi High Court is a superior court and this Court is bound by all the decrees and orders^passed by the Hon'ble High Couft and Hon'ble Supreme Court. It has further been argued that if this Tribunal ignores the decree^passed by the Hon'ble Delhi High Court it will be a contempt of the Hon'ble Delhi High Court and this Tribunal should not pass any order which may be contemptuous. It has also been argued by the Ld. counsel of the respondent no.2 to 4 that the respondent bank cannot proceed against the co-sharer unless and until there is a partition in meets and bounds because a co-sharer is owner of each and every corner of the propefi without exclusion to the other co-owner. Therefore, the respondent no.1 cannot proceed against the subject propefi which is the under the co-ownership of applicant and respondent no. 2 to 4 and 6. The ld counsel of respondent no.2 to 4 also filed the judgement "Swastic Agency and Ors. Vs. State Bank of India and Ors."2009 SCC online Orissa page 3 order dated 03.01.2020^passed by DRT, Ahmedabad in SA no.34l2015 titled as"Pecific Pipe System h/t. Ltd. and Ors. Vs. Bank of India and order dated 01.01.2020 passed by DRT, Ahmedabad in SA 382/2018 Vtitled as "Ishwar Oil Industries

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and Ors. Vs. Authorised Officer Dena Bank and Ors", "Mardia Chemicals Ltd. and Ors. Vs. Union of India and Ors." 2004 (4) SCC page 311, "Satyabhama Gupta Vs. HDFC Bank and Ors" Manu/DE/534412012, "Rammurti fuaralal and Ors. VS. Central Bank of India and Ors." Manu/DEl2879l20t0. "Arvind Kumar Sharma Vs. Standard Chaftered Bank" Manu/DD/004712014. I have gone through the above judgements passed by the Hon'ble Supreme Court and Honble High Court and the law settled by the Hon'ble Courts in the above^judgements. In the light of the law settled down by the Hon'ble Supreme Court and Hon'ble High Court this Tribunal is going to decide the dispute between the parties.

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The Ld. counsel for respondent no.2 to 4 has also filed the^judgements of "The Commissioner Karnataka Housing Board Vs. C.Muddaiah" Manu/SC/789012007, "Prestige Lights Ltd. Vs. State Bank of India" ManuiSC/335512007,^"Avinash Kumar Vs. R.K.Mathur", "M. Meenakshi and Ors. VS. Metadi Aggarwal (D) by LRs and others" Manu/SC/845312006, "Standard Chartered Bank VS. Dharmendra Bhohi and Ors." Manu/SC/1004120L3, "Anup Dev and Ors. Vs. Pratibha Dev and Ors." Manu/DE/393012018, "India Household and Healthcare Ltd. Vs. L.G.Household and Healthcare Ltd." Manu/SC/125312007, "Bir Bajrang Kumar Vs. State of Bihar and Ors.", Manu/SC/0455/1985, "Tamiland Mercantile Bank Shareholders Welfare Association Vs. S.C. Sekar and Ors", "Shankara Co-op Housing Society Ltd. Vs. M.Prabhakar and Anrs." Manulscl0564l2011 and "Janaki Vasudev Bhojwani and Ors. Vs. The Industrial Bank Ltd. and Ors." 2004l3lSCC page 584. U-/'

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The Ld. counsel of the respondent on the other hand submitted that the order passed by the Hon'ble Delhi High Couft in CM(M) tL06l202L "Ratna Khandelwal and Anr. Vs. Kotak Mahindra Bank" dated 04.12.2021 and has submitted that the above case is similar in fact of the present SA and in this case the Hon'ble Delhi High Court has held that if any interest is created in favour of a third party with a view to defraud the bank by the borrower or guarantor in relation to the mortgage property, that transfer will not be valid and the banks will not be binding by that interest and the banks are free to recover the repayment of the loan from the mortgage propefi.

¶55

I have gone through the^{judgementspassed} by the Hon'ble Supreme Court and Hon'ble High Court submitted by the Ld. counsels of all the pafties and^gone through the evidence and^pleadings of the^present case. If we^go through the above^judgements the Hon'ble Supreme Court and the Hon'ble High Court has specifically held that the^judgements passed by the Courts have binding effect and cannot be ignored. It has also been^propounded that the share of the co-sharer cannot be taken away without going through the actual partition. But the facts of the^present case are entirely different. In the^present case the crux of the matter is as to whether the consent decree^passed by the Hon'ble Delhi High Court on 29.08.2019 is binding on the respondent bank. In the^present case the loan was sanctioned on 23.11.2012 and the title deeds of the subject^property were deposited in the bank on 07.12.20L2. At that time the respondent no. 3 was the owner of the entire^property as there was a release deed dated 28.07.2010 in favour of respondent no.3. At the time of taking loan the respondent no.3 was the owner of the subject property. Subsequently, the applicant and other V./

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family members have filed a suit before the Hon'ble High Court bearing case no.CS(OS)no.228l21t9 and had filed a settlement deed regarding the share of the family members in the subject^property. When this suit was filed the subject property was already in mortgage with the respondent no.l bank. It is therefore clear that at the time of^passing of the decree by the Honble High Court in the above^partition suit the subject propefi was already under mortgage with the respondent no.l bank. Now the question is whether this settlement and the decree^passed on the basis of settlement is binding on the bank or not and it is also to be seen whether this Tribunal has^jurisdiction to decide that the decree^passed by the Hon'ble Delhi High Court is not binding on respondent no.1 bank. I am in total agreement with the arguments of the Ld. counsel of the applicant and the respondent no.2 to 4 that this Tribunal does not have jurisdiction to decide the validity of the decree passed by the Hontle Delhi High Court. This Tribunal does not have jurisdiction to decide that the decree passed by the Hon'ble Delhi High Court is nullity but this Tribunal certainly have the power as to whether this decree is binding on the respondent no.1 or not. From the^perusal of the evidence it is crystal clear that the subject property regarding which the^partition suit was filed before the Hon'ble High Court was under mortgage with the respondent bank. Therefore, any subsequent transfer whether it may be by way of sale deed or settlement deed will not bind the respondent no.1 bank. Therefore, any decree passed by the Hon'ble Delhi High Court by the settlement deed is not binding on the respondent no.1 bank. It has been argued by the applicant and the respondent no.2 to 4 that the^{judgementpassed} in the paftition suit is a^judgement in rem and it will be binding against all whether theyrnay be pafi or not. But the

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argument of the Ld. counsels of the applicant and respondent no. 2 to 4 is totally against the settled legal principles and statutory law. The^judgement and decree of the partition suit is binding only on the parties and judgement passed in the paftition suit is judgement in personam and not a judgement in rem as claimed by the Ld. counsels of the applicant. In civil suit whether it is a injunction suit, title suit, partition suit or other type of suits, all^{judgements passed} in the such suits are binding only on the^parties and have no effect on the persons who are not the pafties to the suit. Therefore, it cannot be held that the^{judgementpassed} by the Hon'ble High Court is binding on the respondent no.1 bank, even though the respondent bank is not the party in the^partition suit. I am of the constant view that the^{judgement passed} in the paftition suit can not be deemed as^judgement in rem and have any binding effect on the respondent no.1 bank. There will be no contempt of the Hon'ble High Court if this Tribunal comes to the conclusion that the decree^passed by the Hon'ble Delhi High Court is not binding on the respondent no.l. The argument of the Ld. counsel that if this Tribunal holds that the decree passed by the Hon'ble Delhi High Court in partition suit is not binding on respondent no.l will be contemptuous have no force and this Tribunal is aware of the fact that this Tribunal will not commit any contempt of any superior court by passing any such order. On the basis of the above, this Tribunal is of the view that the settlement decree has been^passed only after declaration of the loan as NPA and the subject property was already mortgaged with the ban( the settlement decree will not deprive the respondent bank from recovering the loan by taking action against the moftgaged propefi.

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The argument of the Ld. counsel of the respondent no. 2 to 4 that the property of the co-sharer cannot be taken away without partition also does not have any effect. At the time of moftgage the respondent no.3 was the sole owner of the subject property and any interest created thereafter will not be binding on the respondent bank, therefore, the question of co-sharer or co-owner does not arise and the applicant and the respondent no.2 to 4 cannot be deemed as co-owners in SARFAESI proceedings initiated by the respondent no.1. The Hon'ble Delhi High Court in "Ratna Khandelwal and Anrs. Vs. Kotak Mahindra Bank" has specifically dealt with the similar situation and para 19 the Honble Delhi High Court has held as below:

¶62

"79. f am also, prima facie, of the view that the aforesaid settlement cannot bind the respondent bank as the respondent bank was not a parfi to the Civil Suit The Ground floor of the Green Park propefty was moftgaged on fl June,2o74 by Wshal Sharma in favour of the respondent bank on the basis of a Gift Deed executed in his favour by his father Sansar Chand Sharma on 2* May,2O74. Having created a moftgage in favour of the respondent Banlg Vishal Sharma could not have given up his share in the Green Park propedy in favour of the petitioners by virtue of the settlement in the Civil Suit fited by the petitionerc, without the consent of the respondent bank. It appearc that the same was done so as to defeat the righB of the respondent Bank as a mortgagee in respect of the above said propefi."

¶63

The Ld. counsel of the applicant has submitted that the above order of the Hon'ble Delhi High Couft is not the final order but it is an interim order, therefore, this order does not have any binding effect on this Tribunal and this Tribunal L

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cannot rely on the above order. I am in consonance with the arguments of the Ld. counsel of the applicant and respondent no. 2 to 4 that this order has been passed by the Hon'ble Delhi High Court in an interim application and this is not a final order and does not have binding effect on this Tribunal. But if the reasoning given by the Hon'ble Delhi High Court in the above order is sound and is based on established legal principles and statutory provisions this Tribunal can take inspiration from that order and can go to a similar conclusion on the basis of the reasoning^given by a Superior Court. Even if the order is not legally binding on this Tribunal as it has been^passed on the interim application but the reasoning given by the Honble Delhi High Court clearly explains the passing of decree on the basis of settlement deed where the subject property has already been under mortgage with any financial institution. I am in total agreement of the reasoning given by the Honble Delhi High Court and the facts of the case in which the Honble Delhi High Court has^passed such order is completely the same as of the^present SA application, therefore, this Tribunal deems it fit to follow the reasoning of the Hon'ble Delhi High Court and come to the same conclusion. The ratio of the^judgements filed by the applicant and the respondent no.2 to 4 does not suit to the present facts of the SA, therefore, this Tribunal cannot go to a conclusion other than to hold that the consent decree passed by the Honble Delhi High Court in the partition suit is not binding on the respondent no.1 bank and respondent no.1 bank can proceed SARFAESI action against the mortgage property as per provision provided in the SARFAESI Act. On the basis of above discussion, this Tribunal come to the conclusion that the present SA cannot be allowed on this L- ground.

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L7. The second main contention of the applicant and respondent no.2 to 4 is that the amount for which the notice under Section 13(2) and 13(4) issued and the order under Section 14 of the SARFEASI Act has been obtained from the Ld. CMM, South Delhi is not a debt as defined under the SARFAESI Act and RDB Act. The arguments of the Ld. counsels is that the respondent bank has already filed an original application for the recovery of the dues and the recovery certificate has already been issued by the Ld. Recovery Officer, SARFAESI action cannot be initiated by the respondent bank and if any action has been taken under the SARFAESI Act that action will be totally void and illegal and against the^provisions of the established law. The ld counsel of the applicant and respondent no.2 to 6 has referred different^provisions of the RDB Act and SARFEASI Act in his written arguments and filed number of^judgements showing that if the recovery certificate has been issued by the Ld.Recovery Officer in a case pending before him after decree of the Original Application the SARFEASI action will not be initiated. On the other hand, the Ld. counsel of the respondent bank has submitted that even if the original application has been decreed and recovery certificate has been issued the bank is entitled to take any action under the SARFAESI Act as^provided by the Act. There is no necessity of withdrawing the original application for initiating the proceedings under the SARFAESI Act. The Ld. counsel of the applicant has referred Section t9(22), 19(20), of the RDB Act, Section 25, Section 28 and 29 of RDDBFI Ad,2002, Section 19(1) of the RDDBFI Act, Order-)C(I of CPC, Section 19(22XA), Section 5(A) of the SARFAESI Act, Section 19(20) (AA), Section 30 of the RDB Act, Rule 10,11 of IInd Schedule of Income Tax Act,1961 and has relied upon the^judgements passed by the Hon'ble Supreme Court and Honble High Court V -.'

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in "Nazir Ahmed Vs. King Emperior" 1936/SCC onlineffC 41, "Raj Kumar Vij Vs. Kotak Mahindra Bank and Ors." WP(C) 6881/2014 dated 30.05.2016, "Swaraj Kishor Arora Vs. Indian Bank and Ors" WP(C) 4505120t5 dated 13.05.2016, "Ace Media Advertisers h/t.Ltd. Vs. Bank of Baroda" Manu/UP/015012009, "Annam Steels (P) Ltd. Vs. Canara Bank" Manu/KE/002312022, "Meghmala and Ors. Vs. G.Narsimhan Reddy and Ors." 2010/8/SCC page 383, "Grand Vasant Resident Wel. Ass. Vs. DDA and Ors", "Ram Chander Singh Vs. Savitri Devi", 2003(8), SCC, page 319, "Amarjeet Kaur VS. Delhi Development Authority and Ors." 2014 SCC online Del, 1097, "Aruind Kumar Sharma Vs.Standard Chartered Bank" ManulDDl004712014, "Satyabhama Gupta Vs. HDFC Bank and Ors" Manu/D1DE1534412012, "Mardia Chemicals Ltd.and Ors. VS. Union of India and Ors," 4 SCC page 311, "Ram Mufti Pyarelal and Ors. VS. Central Bank of India and Ors." Manu/DElZB79lpage 2010, "Batokristo Nandi Vs. Randev Chaudhary" Manu/WB/02931L969 "Punjab National Bank VS. Mithlanchal Industries h/t.Ltd." Manu/GJ/106912020 and Yranscore Vs. Union of India and Anr." 2008/1/SCC/ page 125. I have gone through the entire provisions referred by the Ld. counsel of the applicant and the respondents. I have also gone through the judgements passed by the Hon'ble Supreme Couft and Honble High Court.

¶70

From the perusal of the evidence and the arguments advanced by the Ld. counsels of all the pafties the crux of the argument,is whether the SARFEASI proceedings can be initiated by the bank if the original application has been moved by the bank or financial institution and the original application has been decided and decreed by the bank. If we go through the above ju emen , in no case except the

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Transcore judgement it has been decided that whether the SARFAESI may be taken even when the original application has been decided by the DRT. If we go through the provisions and the judgements passed by the Hon'ble Supreme Court and Hon'ble High Court in the^judgements cited by the^parties this Tribunal come to the conclusion that the Transcore Vs. Union of India is a direct case where the question was whether the financial institution can initiate SARFAESI proceedings where the original application is pending or has been decided without withdrawing the original application. If this Tribunal^go through the^judgement passed by the Hon'ble Supreme Court in Transcore case the question no.1 that was formed was whether the banks or financial institution having elected to seek their remedy in terms of DRT Act, 1994 can still invoke the NPA Act for realizing the secured asset without withdrawing or abandoning the OA filed before DRT under the DRT Act. This question has been heard at length by the Hon'ble Supreme Couft and it has been decided by the Hon'ble Supreme Court that withdrawal of OA^pending before DRT under the DRT Act is not a^pre condition for taking resource to the NPA Act. It is for the bank/Fl to exercise its discretion as to the cases in which it may apply for leave and in cases where they may not apply for leave to withdraw. Therefore, the Hon'ble Supreme Court in this case has specifically deal with the above situation and has finally held that withdrawal of original application is not a^pre condition for taking any action under the SARFAESI Act by the banks or financial institutions. As per dictum of the Hon'ble Supreme Court it is for the FI to take any action as per its convenience and the FI may proceed both under the RDB Act and also under the SARFAESI Act. The SARFAESI action cannot be declared invalid merely because the original application has been filed Y

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and whether it is pending or it has been disposed. This judgement of the Honble Supreme Court has still not been overruled by the Hon'ble Supreme Court, therefore, this judgment has the binding effects on all the courts and Tribunals throughout the India. In all other cases submitted by the Ld. counsel of the applicant and the respondent no.2 to 4 it has not been held that the legal^position is something different as discussed in the Transcore case. This Tribunal does not have any^jurisdiction to interpret the various provision of the RDB Act and SARFAESI Act and RDDBFI Act and may decide that the dictum of the Hon'ble Supreme Court is against the provisions and this Tribunal can^go against the^{judgementpassed} by the Hon'ble Supreme Court. This Tribunal does not have any power to make any slightest deviation from the dictum of the Hon'ble Supreme Court by interpreting the various provisions of the different Act. When there is clear finding of the Hon'ble Supreme Couft on a certain point all the Courts and Tribunals have to follow that finding. In such circumstances, there is no need to discuss here the various provisions and go to the conclusion that the SARFAESI^proceedings cannot be initiated if the recovery certificate has been issued.

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The Ld. counsel of the applicant and the respondent no. 2 to 4 has further argued that in the present case the recovery certificate has already been issued by the Ld. Recovery Officer, therefore, the findings of the Hon'ble Supreme Court in Trascore case is not binding and has no effect on the present case. But the argument of the Ld. counsels is against the law. In the Transcore case the Hon'ble Supreme Court has not specified as to the condition under which the SARFAESI provision can be initiated pending original application. Honble S U reme Court has not made

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any differentiation on the facts at which stage the original application is pending. The Hon'ble Supreme Court has simply came to the conclusion that even if the original application is pending or has been decided the SARFAESI action can be initiated. Therefore, merely because the recovery ceftificate has been issued it cannot be said that the finding of the Honble Supreme Court in Transcore case is not binding on this Tribunal. Issuing of the recovery certificate is merely an stage of execution of the original application. The execution^proceedings are^part of the original suit, therefore, the issuing of the recovery certificate in terms of the order of the original application is a paft of^proceedings of the original application and therefore the bank and FIs are free to take action under SARFAESI Act despite^pendency of the original application. Therefore, this argument of the Ld. counsel of the applicant and respondent no. 2 to 4 has no force and the SARFEASI action cannot be declared void on this^ground.

¶78

The Ld. counsel of the applicant has submitted that where the recovery certificate has been issued the amount cannot be claimed as debt and no SARFAESI action can be taken. But the argument of the Ld. counsel has no merit. In Transcore case the Honble Supreme Couft has specifically held that SARFAESI proceedings may be initiated even if the original application has been decreed. If the application has been decreed the consequence is the issuance of recovery ceftificate and the amount mentioned in the recovery certificate will be deemed to be debt under the SARFAESI Act and action may be taken as per direction of the Hon'ble Supreme Court. This Tribunal has no^jurisdiction to travel beyond the finding of the Hon'ble Supreme Court in Transcore case by holding that the amount of the recovery certificate cannot be deemed as debt and therefore

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SARFAESI action cannot be initiated. If this Tribunal passes any such order it will come under mischief and misreading of the provisions with a view to travel beyond the finding of the Hon'ble Supreme Court and this Tribunal is well aware of this fact that this Tribunal has to follow the law propounded by Hon'ble Supreme Court.

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2L. The Ld. counsel of the respondent no.l has filed the judgement passed by the Hon'ble Allahabad High Court in "Ace Media Advertiser h/t.Ltd. VS. Bank of Baroda" Manu/UP/015012009 and submitted that even if the original application has been decided and the appeal is^pending against the order, the bank is at libefi to^proceed under the SARFAESI Act. The facts of this case are also similar to the above case and this^judgment also emphasis that SARFAESI action may be taken even if the original application has been finally decided. The Ld. counsel for the applicant has submitted that in this^judgement the Honble Allahabad High Court has used the word decree but in the original appllcation no decree is prepared therefore, this^judgement has no binding effect. But the argument of the Ld. counsel has no force even if a decree is not^passed in the original proceedings before Tribunal, the intention of the Hon'ble Allahabad High Court was of the final order^passed by the Tribunal in the original application. Merely because the Hon'ble Allahabad High Court used the word decree it does not create any doubt that this^judgment is not binding on original applications because this^judgment has been^passed only in case of original application and SARFAESI action taken under the RDB ACt and SARFAESI Act.

¶82

The Ld. counsel of the applicant and respondent no. 2 to 4 has made submissions by referrin g different documents

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showing that the recovery certificate has been issued for a different amount whereas the notice under Section 13(2) and 13(4) has been issued for a different amount. It has been claimed that if the amount mentioned in the recovery ceftificate and in the notice under Section 13(2) and 13(4) is different all the SARFAESI proceedings shall be vitiated and the SA application is liable to be allowed. On this point the Ld. counsel of the respondent has filed the^judgement of the Hon'ble Kerala High Court in "Annam Steels (P)Ltd. Vs. Canara Bank Ltd. and Ors" Manu/KE/002312022 and has submitted that even if there is a difference in the amount in the recovery certificate and in the notice under Section 13(2) and 13(4) the SARFAESI action cannot be vitiated. I am in total agreement of the above^judgment and the SARFAESI action cannot be declared invalid merely because the amount referred to notice under Section 13(4) is different from the recovery ceftificate.

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Here it is also^pertinent to mention that no notice under Section 13(2) and 13(4) has been issued to the applicant. Applicant is the third party. She is neither borrower nor guarantor of the loan. Therefore, the respondent bank was not liable to issue any notice under Section 13(2) or 13(4) to the applicant. Therefore, applicant cannot claim that there is any discrepancy in the notice due to which she was misleaded and could not contest the notice. The borrower or the^guarantor can take such^plea but the applicant who is the third pafi cannot claim this plea. Order under Section 14 of the SARFAESI Act has also not been obtained against the applicant, therefore, the applicant cannot take any such defense in her SA application. She can only claim that she is the third pafi but she has interest in the subject^property and her interest shall be protected. As discussed above, it lry/

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has been decided by the Tribunal in the above paragraphs that the settlement deed and the decree passed in terms of the settlement deed is not binding on the respondent bank as it is after execution of the mortgage, the applicant cannot claim any protection under the SARFAESI Act and she will be deemed to be third^party who has no interest in the propefi at the time of creation of mortgage.

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The Ld. counsel of the applicant and the respondent no. 2 to 4 and 6 has submitted that respondent no.3 was kept under mistake of fact and signatures on blank^papers was obtained from respondent no.3 and respondent no.3 was extended to a loan of Rs.8.5 Crores instead of Rs.10 Crores. The Ld. counsel wants to say that all the loan documents and loan agreement has been obtained by fraud therefore, they are not binding on the borrower and guarantor and the applicant. But the arguments of the Ld. counsel of the respondent cannot be accepted at all. The applicant in her SA has not claimed that the loan was^granted committing fraud. In the reply the respondent no. 2 to 4 has claimed that the fraud was played by respondent no.1 in sanctioning and disbursing the loan. It is surprising that the respondent no. 2 to 4 has not put their replies in the original applications and has never taken such a defense. The respondent no. 2 to 4 has also not filed any counter claim though in the SA application counter claim cannot be filed. The respondent no.2 to 4 has not filed any SA application before this Tribunal after issuing of the fresh notice under the Section 13(2) and 13(4) after declaration of the SARFAESI action taken by the respondent bank as invalid by the Hon'ble DRT, Lucknow. Therefore, what has been claimed in the reply cannot be decided in the^present SA. Apart from this, the respondent no. 2 to 4 are well educated persons and doing business in ".t-

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crores and their turn over may be more than Rs.100 Crores, how it can be deemed that they have signed the documents under pressure and under mistake of fact and a fraud had been committed by the bank. They have never filed any FIR against any bank officials for the fraud committed by the bank officials. The loan was sanctioned, subject property was mortgaged and title deeds were deposited. Thereafter, loan amount was disbursed and utilized by the respondent no.2 to 4. The loan was sanctioned on 23.11.2012 and the account was declared NPA on 30.09.2015. Therefore, it is clear that the respondents were enjoying the loan from 20L2 to 2015 and now claiming that the respondent no.1 has committed fraud with them. Such type of arguments cannot be accepted even by a simple prudent^person. Therefore, this ground cannot be accepted and there is no need to discuss the^{judgementspassed} by Hon'ble Superior Courts on the point of fraud. Therefore, this Tribunal is not going to discuss the^{judgements produced} on point of fraud because in the^present case it is apparent on the face of the case that no fraud has been committed and this argument has been advanced merely to save their^property by any mean,

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Arguments has also been advanced on the point of notice issued under Section 13(2) and 13(4) and it has been claimed that they have not been^properly issued and served on the applicant. The applicant is the third pafi, therefore, there is no need to issue any notice under the SARFAESI Act to the applicant. Therefore, this Tribunal will not go into the validity of the notice issued to other respondents under Section 13(2) and 13(4) because the other respondents has not filed any SA and this Tribunal is not^going to decide the validity of the action taken by the bank against the respondents. Therefore, there is no need to discuss about the

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validity and publication of the notice under Section 13(2) and 13(4) of the SARFAESI Act.

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On the basis of above discussion, the SA application of the applicant is liable to be dismissed.

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ORDER

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The present SA siands dismissed.

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Date : 19.08.2023

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