Partly allowed

Smt Peduri Gangamani v. Aptus Value Housing Finance India Ltd.

DRT4 Jan 2023SA/131/2022

Case brief

AI extract

What is this about?

Debt Recovery Tribunal I, Hyderabad partly allowed an application under Section 17 of SARFAESI Act. It held the Tribunal cannot adjudicate alleged loan fraud under Section 17 but set aside a Demand Notice and Possession Notice due to lack of proof that the creditor followed statutory procedures.

What did the court decide?

The Demand Notice issued under Section 13(2) and the Possession Notice dated 28.09.2021 issued under Section 13(4) of the SARFAESI Act against the Applicants and the schedule property are set aside.

Smt Peduri Gangamani versus Aptus Value Housing Finance India… — Banking and Recovery | DRT (2023)

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IN THE DEBTS RECOVERYTRIBUNAL- I AT HYDERABAD

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DATED THIS THE 4TH DAY OF JANUARY,2C23

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PRESENT: GUMMADI GOPICHAND, PRESIDING OFFICER

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SA.No.131/2c22

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Smt Peduri Gangamani, W/o. Peduri Laxman Goud, Aged about 43 years, Occ: Housewife,

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R/o. H.No.5- 1 1 -328, Yellammagunta, Nizamabad.

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Sri Peduri Laxman Goud, S/o. P. Mallesham Goud, Aged about 47 years, Occ: Pvt. Employee, R/ o. H.No.5- 1 1 -328, Yellammagunta, Nizamabad.

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Applbants.

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Versus

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Aptus Value Housing Finance India Ltd., Rep. by its Authorized Officer, Situated at 88, Doshi Towers, 205, Poonamallee High Road, Kilpauk, Chennai - 600 010.

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c Sri Dondikonda Goverdhan, S/o. Gangadhar, aged about 55 years, Occ: Builder, R/o. H.No. 10-L4-2113 I l,

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Lalithanagar - 3, Beside Lalithamba

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Temple, Nyalkal Road, Nizamabad.

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Respondents.

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Si D. Ragharrulu. Ex-parte.

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'll''d
,'* ''" ?.i,4:
i!<br>-:ORDERi

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,,[$^;i!"]m, by the Applicant u/s.17 of the SARFAESI Act,

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er.?Qo2, for the Possession Notice dt.29.Og.2O2l, issued by .'ii"".rm u/s. 13(a) of the SARFAESI Act, in respect of the

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'edule property and to declare the mortgage created by

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SA.No.131/2022

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the Respondents in respect of the application schedule property in the absence of Applicant No.2 is illegal and arbitrary.

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The averments made in the application, in brief, are as follows:_

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i) The Applicant No.2 is the absolute owner and possessor of the application schedule property by virtue of registered partition deed and also gift deed executed by his sister towards in respect of her share in the schedule property. As the Applicant No.2 was in Saudi Arabia, he instructed Applicant No.2, who is his wife, to contact a builder for demorition of ord house and construction of a new house in the application schedule property. Accordingly, the Applicant No. 1 entrusted the construction work to 2nd Respondent-builder by entering into an Agreement dt. 16.11.2016, for construction of building. The 2"d Respondent_ builder took entire amount as per the terms of the Agreement but he did not complete the construction work on the pretext of shortage of funds. The 2"a Respondent-builder told Applicant No.l that he would arrange a loan of Rs.g,00,000/_ and he took copies of Aadhar Cards of Applicants No. 1 & 2. Thereafter, the 2.d Respondent fabricated the photograph on ttre Aadhar Card of Applicant No.2 with his photograph and executed registered sale deed bearing Doc.No. 12316/2016 on 2O.12.2OL6 in favour of Applicant No. 1 without any knowledge and consent of Applicant No.2, who was in Saudi Arabia. The Aadhar Card attached to the Deed is in the name of Applicant No.2 but with the of Respondent No.2. Thereafter, the Respondent No.2

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- with Respondent No.l got the loan sanctioned and he

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the e: loan amount from Applicant No. 1.

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0^{q JAll} {

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returned back to India on 11.03.2019, he the foul play of the Respondents. The

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2 started harassing the Applicants for

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amount and the Applicants paid the entire

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SA.No.1i1/2022

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loan amount by borrowing funds from private persons. Still Respondent No.2 is harassing the Applicants for payment of further amounts. The Applicants lodged a complaint with Town IV Police Station, N2amabad against Respondents No.l & 2 and one Durga Prasad, who took signatures of Applicant No.l on blank documents in collusion with Respondents No. 1 & 2, and FIR No.231/2O2O was registered against them. Thereafter, the Applicants have also filed a case vide OS.No.47 I /2O2O on the lile of Ld. Prl. Jr. Civil Judge, Nizamabad, which was rejected on a petition fiIed by the Respondents, for which the Applicants are taking steps.

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iii) While things stood thus, the l st Respondent threatened the Applicants to vacate the application schedule property by handing over a copy of Possession Notice dt. 14.03.2022. The 1"t Respondent did not serve Demand Notice and the^possession Notice on the Applicants as per the procedure laid down under the SARFAESI Act. The lst Respondent did not affix Possession Notice on the application schedule propert5r and also failed to publish the said Notice in two leading newspapers. The Applicants are not liable to pay any amount to the l"t Respondent in view of the fraud played by Respondents No.l and 2. Hence, the SA.

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Despite service of notice, the Respondents No. 1 & 2 remained ex-

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..^{",or-s.Parte.} ,z'^$r \ - 'k 9a appearing for the Applicants. 08 t arise for consideration are,the Applicants have established any grounds for setting aside the Possession Notice dt.28.Og.2O2l, issued by the 1st Respondent in respect of the application schedule property?

SA.No.131/2022

ii) To what relief.2

Point No.[i)r

As can be seen from the pleadings, the contention of the Applicants is that, they did not avail any loan from the 1"t Respondent and in fact during the loan transaction the l"t Applicant was in Saudi Arabia and that the Respondents No. 1 and 2 in collusion with each other played fraud on the Applicants for sanction of the loan and that they are not liable to pay any amount to the lst Respondent. The scope and ambit of sec. 17 of the SARFAESI Act is very limited as this Tribunal under sub-section (2) of Sec.17, shall consider whether any of the measures referred to under sub-section (4) of Sec.l3 taken by the secured creditor for enforcement of security interest are in accordance with the provisions of the Act and the Rules made thereunder. The scheme of the SARFAESI Act does not deal with disputes between the borrower and the secured creditor, in particular when the action of the secured creditor is alleged to be fraudulent. So, the Applicants, who are alleging that the loan transaction, including mortgage over the application schedule property is fraudulent, they have to approach appropriate forum but not this Tribunal u/s. 17 ofthe SARFAESI Act.

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Insofar as the contentions of the Applicants that the 1.t Respondent has failed to servejDemand Notice u/s. 13(2) and the possession Notice v/ f the SARFAESI Act on the Applicants and that the lst lr\ failed to affix the Possession Notice on the schedule N ary[ also failed to publish the said notice in two concerned, the lst Respondent, despite service of 1 to appear before this Tribunal to contradict the ,i+i,*l Applicants. In the absence of any proof on behalf of the ent that it has duly followed the procedure laid down the SARFAESI Act, I am constrained to hold that the Demand Notice issued u/s.13(2) and the possession Notice dt.2g.og.2o2r, issued u/s.13(4) of the SARFAESI Act by the 1"t Respondents against

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sA.No.131/2022

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the Applicants and the application schedule property are liable to be set-aside.

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Polnt No.lli)t

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In the result, the present Securitization Application is partly allowed by setting aside the Demand Notice issued u/s. i3(2) and the Possession Notice dt.28.og.2o2r, issued u/s. 13(4) of the SARFAESI Act by the 1st Respondents against the Applicants and the application schedule property. Consequently, the Interlocutory Applications, pending if any, shall stand disposed of. The Applicants are at liberty to approach the appropriate forum in respect of the alleged fraudulent loan/mortgage transaction. No order as to costs.

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9. Communicate a copy of this order to the parties concerned.

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lDirta.red^to.the Pfiuate secrerary, tfansoibed ba hta @tected, signEd ..nd pronounced bg m.e irl*e open court on thb the O4k dag oI January, 2O23).

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sdl(c. coPrcHAND) PRESIDING OFFICER

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: [l J[tl ?ul
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^o.1

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TRUE COPY o,,.M)),) DRI.I, HYCERfIBAD,

Smt Peduri Gangamani v. Aptus Value Housing Finance India Ltd.

Case brief

What is this about?

What did the court decide?

Smt Peduri Gangamani v. Aptus Value Housing Finance India Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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