Shubhash Mangla Prasad Singh v. Enforce Asset Reconstruction Company Pvt. Ltd.

DRT15 Sept 2023SA/185/2023

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IA No. 2865 of 2023 In SA 185 of 2023

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15/09/2023	Ex. No.	Before Presiding Officer Dr. Rekha G. Dhakar, DRT-1, Mumbai IA No. 2865/2023 in *SA 185 of 2023* *Subhash Mangla Prasad Singh Vs. Enforce* *Asset Reconstruction Company Pvt Ltd.*	Next date
		1 MUMBA Advocate appeared for the Applicant. Advocate Vinay Deshpande i/b M/s. V. Deshpande appeared for the Respondent. IA No. 2865/2023 1. By way of the present IA Applicant is praying to restrain the Respondent Bank from taking possession of the property i.e. (i) Flat No. 5, A Wing, 3rd Floor, Cosmos House, Prabhat Colony, Near Jain Temple, Santacruz (East), Mumbai 400 055 (ii) Shop No.1, Shilpa
		Co-op Housing Society, Gandhi
		Chowk, Prabhat Colony, Santacruz (East), Mumbai 400 055, (hereinafter
		referred to as “property in question No.1 & 2 respectively”).
		2. Ld. Counsel for the Applicant
		contends that Applicant is neither
		borrower or mortgagor and he is a
		third party who is a bonafide
		purchaser of the property in question

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IA No. 2865 of 2023 In SA 185 of 2023

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no.1. He also submits that in Ld. Civil Court of Varanasi has already passed the attachment order and restrained the borrower of the Respondent FI from creating any third party right of
the property in question no.1,
therefore, he submits now the
Responet FI is debarred to take
MB possession. He also contends that the Applicant is ready to pay the valuation of the property in question, however,
some time may be allowed and
U therefore, the possession which is fixed for today may be stayed.
3. Pre contra, Ld. Counsel for the
Respondent FI strongly objected to the
1 submission of Ld. Counsel for the Applicant and contends that
RT possession preceding has already been initiated on the property in question
no.1. He also informs that alleged
agreement between the parties was
executed after the mortgage and
further the order of Ld. Civil Court is not binding upon the recovery actions
of the Respondent FI as the
Respondent FI was not party of the

Shubhash Mangla Prasad Singh versus Enforce Asset… — Banking and Recovery | DRT (2023)

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said suit, therefore, he submits that the present IA may be declined. 4. Having considered rival contention of
I the parties and gone through the record. 5. As informed by Ld. Counsel for the Respondent the alleged agreement
between the Applicant and
MUMB Respondent No. 2 & 3 is subsequent to the creation of mortgage of property in question in favour of the Respondent Financial Institution. Further in so far as the order of Ld. Civil Judge Varanasi dated 30/05/2022 is concerned the same is applicable upon the party to
1 the said case being judgement in personam and as rightly stated by Ld.
RT Counsel for Respondent Financial Institution same is not applicable upon the security action of the Respondent
D FI. 6. In view of the above_prima facie_I do not find any merit in present IA, thus, the same is hereby rejected accordingly.
P.O. DRT-I

Shubhash Mangla Prasad Singh v. Enforce Asset Reconstruction Company Pvt. Ltd.

A compact analysis

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