Dismissed

Durgesh Paul Sachdev v. Edelweiss Asset Reconstrution Companylimited

DRT28 Aug 2023SA/167/2023

Case brief

AI extract

What is this about?

DRT Mumbai dismissed the applicant’s interim application seeking restraint on a property auction. The court held the applicant’s documents contained contradictory areas, the sale occurred post-mortgage without bank consent, and the underlying civil judgment did not bind the bank.

What did the court decide?

Interim application and underlying Special Appeal dismissed.

28/08/2023	Ex. No. Before Presiding Officer Dr. Rekha G. Dhakar, DRT-1, Mumbai. *Roznama in SA 167 of 2023* *Durgesh Paul Sachdev Vs Edelweiss Asset* *Reconstruction Company Limited*	Next date
D	RT1 MUMBA Advocate Charles D’souza a/w Padmakar G. appeared for the Applicant. Advocate Priyansh Jain a/w Advocate Vinod Kothari i/b M/s. Apex Law Partners appeared for the Respondent. I.A. No. 2711/2023 1. By way of the present I.A. the Applicant is praying to restrain the respondent from taking further action qua the property Khajan Char Bhat, Survey No. 84/5-C, Village Siolim, Bardez, Goa (hereinafter referred to as “property in question”) and also Respondent may be directed not to proceed of the E-Auction dt.22/07/2023. 2. Ld. Counsel for the Applicant contends	I
	that the Applicant is owner and
	bonafide purchaser of part of the property in question. He submits that the Applicant purchased the property in
	question on 22/07/2013 vide an

28/08/2023

Ex.
No.
Before Presiding Officer Dr. Rekha G. Dhakar,
DRT-1, Mumbai.
Roznama in SA 167 of 2023
Durgesh Paul Sachdev Vs Edelweiss Asset
Reconstruction Company Limited

Next date

RT1 MUMBA
Advocate Charles D’souza a/w Padmakar
G. appeared for the Applicant.
Advocate Priyansh Jain a/w Advocate
Vinod Kothari i/b M/s. Apex Law Partners
appeared for the Respondent.
I.A. No. 2711/2023
1. By way of the present I.A. the Applicant
is praying to restrain the respondent
from
taking
further
action
qua
the
property Khajan Char Bhat, Survey No.
84/5-C, Village Siolim, Bardez, Goa
(hereinafter referred to as “property in
question”) and also Respondent may be
directed not to proceed of the E-Auction
dt.22/07/2023.
2. Ld. Counsel for the Applicant contends

that
the
Applicant
is
owner
and

bonafide
purchaser
of
part
of
the
property in question. He submits that
the Applicant purchased the property in

question
on
22/07/2013
vide
an

agreement to sell. However, since the
seller failed to abide by the terms of
agreement, therefore, the Applicant
herein filed a Civil Suit for a specific
before the Sr. Civil Judge at Maupsa,
I Goa and the Ld. Civil Judge pass the order in favour of the Applicant on
22/07/2016 and thereafter, the sale deed
MB was registered in the favour of the Applicant, therefore, he submits that the Applicant is a rightful owner of the part
of property in question and thus, the
MU Respondent may be restrained to conduct the E-Auction of the property in question. 3. He also submitted in another proceeding
T1 before DRT-II Delhi, an order was passed by Ld. Recovery Officer qua the property in question, however, against
the said order of Ld. Recovery Officer
and an appeal is pending before Ld. PO,
DRT-II Delhi and all the facts are in the
knowledge of the Respondent FI and
despite knowing all these facts, the
Respondent did not disclose the
encumbrance of the property in question
in Auction Notice dated 22/07/2023,

agreement to sell. However, since the

seller failed to abide by the terms of

agreement,
therefore,
the
Applicant

herein filed a Civil Suit for a specific

before the Sr. Civil Judge at Maupsa,

I
Goa and the Ld. Civil Judge pass the
order in favour of the Applicant on

22/07/2016 and thereafter, the sale deed

MB
was registered in the favour of the
Applicant, therefore, he submits that the
Applicant is a rightful owner of the part

of property in question and thus, the

MU
Respondent
may
be
restrained
to
conduct the E-Auction of the property in
question.
3. He also submitted in another proceeding

T1
before
DRT-II
Delhi,
an
order
was
passed by Ld. Recovery Officer qua the
property in question, however, against

the said order of Ld. Recovery Officer

and an appeal is pending before Ld. PO,

DRT-II Delhi and all the facts are in the

knowledge of the Respondent FI and

despite knowing all these facts, the

Respondent
did
not
disclose
the

encumbrance of the property in question

in Auction Notice dated 22/07/2023,

	thus he submits that the appropriate
	action may be taken against the
	I Respondent and the auction notice dt.22/07/2023 may be cancelled and the Respondent may be restrained for taking further action in the present matter till disposal of the present S.A.
RT 4.	1 MUMBA Pre contra, Ld. Counsel for the Respondent strongly objected to the present SA and submits that this is the proxy litigation. He also contends that the borrower of the bank has mortgaged the property in question on 25/06/2011 with the bank and all the property document in original is lying with the Respondent. Thus, the alleged sale of the property is as such a fake and fraudulent sale and that too without any proper document. Further, he contends that in the agreement to sell dt.22/07/2013 the
D	applicant is claiming 709.33sq.mt. out of 1418.66 sq.mt. part of the property was purchased, whereas in the sale deed it is
	mentioned that the 1074.66 sq.mt. is
	purchased. Thus, he submits that the claim of the Applicant on the basis of
	these fake documents / incorrect

thus he submits that the appropriate

action
may
be
taken
against
the

I
Respondent
and
the
auction
notice
dt.22/07/2023 may be cancelled and the
Respondent may be restrained for taking
further action in the present matter till
disposal of the present S.A.

RT
4.

1 MUMBA
Pre
contra,
Ld.
Counsel
for
the
Respondent
strongly objected to the
present SA and submits that this is the
proxy litigation. He also contends that
the borrower of the bank has mortgaged
the property in question on 25/06/2011
with the bank and all the property
document in original is lying with the
Respondent. Thus, the alleged sale of the
property is as such a fake and fraudulent
sale and that too without any proper
document. Further, he contends that in
the agreement to sell dt.22/07/2013 the

applicant is claiming 709.33sq.mt. out of
1418.66 sq.mt. part of the property was
purchased, whereas in the sale deed it is

mentioned that the 1074.66 sq.mt. is

purchased. Thus, he submits that the
claim of the Applicant on the basis of

these
fake
documents
/
incorrect

MBAI documents is not sustainable. He also submits that the order of the Ld. Sr. Civil Judge Maupsa, Goa dt.20/07/2016 is an ex-parte order and the Respondent has never been part of the said proceedings, therefore, the said order is not applicable upon the actions of the Respondent No.1, therefore the present IA alongwith SA may be dismissed. 5. Considered the rival submission of the parties and gone through the record.
U 6. Admittedly in the present matter the mortgage was created in the year 2011 whereas the Applicant is claiming the
RT1 M purchase of property in question on 22/07/2013 thus, the purchase of the Applicant is subsequent to the creation of mortgage and no prior consent of the Bank was obtained for the said sale thus, the said sale will vitiate on the said
D ground alone. 7. Further as already demonstrated by Ld. Counsel for the Respondent that the agreement of sale dt.22/07/2013 as well as the sale deed dt.24/05/2018 having different areas of Property in question,
which Applicant is claiming that he is in

MBAI
documents is not sustainable.
He also
submits that the order of the Ld. Sr. Civil
Judge Maupsa, Goa dt.20/07/2016 is an
ex-parte order and the Respondent has
never been part of the said proceedings,
therefore, the said order is not applicable
upon the actions of the Respondent
No.1, therefore the present IA alongwith
SA may be dismissed.
5. Considered the rival submission of the
parties and gone through the record.

U
6. Admittedly in the present matter the
mortgage was created in the year 2011
whereas the Applicant is claiming the

RT1 M
purchase of property in question on
22/07/2013 thus, the purchase of the
Applicant is subsequent to the creation
of mortgage and no prior consent of the
Bank was obtained for the said sale thus,
the said sale will
vitiate
on the said

D
ground alone.
7. Further as already demonstrated by Ld.
Counsel for the Respondent that the
agreement of sale dt.22/07/2013 as well
as the sale deed dt.24/05/2018 having
different areas of Property in question,

which Applicant is claiming that he is in

RT1 MUMBAI possession. In the Agreement to sell dated 22/07/2023 total area which is sold was 709.33sq.mt. out of 1418.66 sq.mt., whereas in the Sale deed dated 24/05/2018 it is recorded that the Applicant purchased a total 1074.66 sq.mt. from the borrower of the Bank. Thus, as there is serious contradiction in the Property documents of the Applicant therefore, the Applicant is not entitled to any right on the Property in question. 8. In so far as the order of Ld. Sr. Civil Judge of Maupsa, Goa dt. 22/07/2023 is concerned, the same is an ex-parte order and even otherwise the Respondent No.1 was not party to the said matter thus, the same is a judgement in persona and therefore, do not support the case of the Applicant. 9. In view of the above I do not find any
D merit in the interim relief application. 10.On perusal of the record of the S.A., it reveals the Applicant has raised identical issues in the SA also therefore, the S.A. is also hereby dismissed with no order on cost.

RT1 MUMBAI
possession. In the Agreement to sell
dated 22/07/2023 total area which is
sold was 709.33sq.mt. out of 1418.66
sq.mt., whereas in the Sale deed dated
24/05/2018
it
is
recorded
that
the
Applicant
purchased
a
total 1074.66
sq.mt. from the borrower of the Bank.
Thus, as there is serious contradiction in
the Property documents of the Applicant
therefore, the Applicant is not entitled to
any right on the Property in question.
8. In so far as the order of Ld. Sr. Civil
Judge of Maupsa, Goa dt. 22/07/2023 is
concerned, the same is an ex-parte order
and
even
otherwise the Respondent
No.1 was not party to the said matter
thus, the same is a judgement in persona
and therefore, do not support the case of
the Applicant.
9. In view of the above I do not find any

D
merit in the interim relief application.
10.On perusal of the record of the S.A., it
reveals
the
Applicant
has
raised
identical issues in the SA also therefore,
the S.A. is also hereby dismissed with no
order on cost.

File be closed and consigned to record.
	P.O. DRT-I

File be closed and consigned to record.

P.O.
DRT-I

Durgesh Paul Sachdev v. Edelweiss Asset Reconstrution Companylimited

Case brief

What is this about?

What did the court decide?

Durgesh Paul Sachdev v. Edelweiss Asset Reconstrution Companylimited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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