Allowed

Smt Suvarcha Choudhary v. Aavas Financiers Limited

DRT23 Oct 2023SA/202/2022

Case brief

AI extract

What is this about?

In a securitization application, the Debts Recovery Tribunal allowed applicants who were bona fide buyers of flats. The court held that although borrowers defaulted on loans, the financial institution took possession of specific flats not covered by mortgages or No Ob證書. Consequently, the Tribunal quashed the impugned actions and directed restitution of possession to the applicants.

What did the court decide?

Direction to respondent FI to handover physical possession of the subject flats to applicants; all actions against these flats quashed.

Smt Suvarcha Choudhary versus Aavas Financiers Limited — Banking and Recovery | DRT (2023)

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING OFFICER: SH. VIVEK SAXENA

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SA No.- 202/2022

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Smt. Suvarcha Choudhary w/o Sh. Dinesh Singh Choudhary, R/o Plot Number 24, Chinkara Colony, Green Avenue, Khatipura Road, Jaipur, Rajasthan.

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Smt. Savitri Devi w/o Sh. Devi Singh Chaudhary, R/o R/o Plot Number 24, Chinkara Colony, Green Avenue, Khatipura Road, Jaipur, Rajasthan.

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.........Applicants

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Versus

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Aavas Financiers Limited, through Authorized Officer 201-2022, 2^nd Floor, Southend Square, Mansarovar Industrial Area, Jaipur-3020.

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Sh. Dinesh Singh S/o Sh. Madan Singh, R/o D-77, Ganga Marg, Prem Nagar, Jhotwara, Jaipur Rajasthan.

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Smt. Shweta Singh, w/o Sh. Dinesh Singh, , R/o D-77, Ganga Marg, Prem Nagar, Jhotwara, Jaipur Rajasthan.

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........Respondents

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Present:-

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Sh. Akarsh MathurAkarsh Mathur, Counsel for the Applicant

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Sh. Sharad Joshi, Counsel for the Respondent Bank

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(Final Order) (23.10.2023)

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This Securitization Application was filed by two applicants who are aggrieved by the actions initiated by Respondent FI as they took physical possession of all part and parcel of the residential property at Plot no. 19, Vaishali Estate Extension, Gandhi Path, Sirsi Road, Jaipur on 19.07.2021.

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SA applicant claims their right over flat no. G-4, (in the name of SA applicant no. 2) and flat no. S-2 (in the name of SA applicant no.1) in

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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the light of registered Sale Deeds dated 18.06.2020 from Mr. Dinesh Singh and these two flats were constructed over the said Plot No. 19.

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Order under Section 14 of the Act of 2002 was passed by Ld. ACMM, Jaipur Metro-II, and as per Panchnama dated 28.01.2022, physical possession of 05 flats so constructed over Plot no. 19, was taken by the Respondent FI.

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As per Panchnama filed along with the reply details of flat no. G-4 and S-2 is mentioned at page no. 33.

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As per Possession notice dated 28.01.2022, Mr. Dinesh Singh and Mrs. Shweta Singh, borrower (Respondent no. 2 &3) who obtained credit facility from Respondent FI no. 1 availed credit facility of Rs. 1,00,00,000/- and committed default and there was outstanding amount of Rs. 4247822/- and Rs. 375701/- in two loan accounts as on 27.03.2021.

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It is an admitted fact that both the applicants are neither borrower nor guarantor to the credit facilities and they claim themselves as bona fide buyer of both the flats in the light of Registered Sale Deeds dated 18.06.2020, entire sale amount was paid by them to Respondent no. 2 and 3, they never committed any default, but physical possession of all total 05 flats was taken by the respondent FI.

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As certain facts requires consideration, so following facts, which emerges from the record so filed by the respondent FI are detailed here as under:-

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A. In the light of Demand Notice dated 27.03.2021, it is clear that two credit facility were sanctioned in favor of Mr. Dinesh Singh and Mrs. Shawta Singh and this facility was in the shape of “Housing Loan of Rs. 1,00,00,000/- on 31.05.2020.

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B. Copies of loan application, sanction letter, details of agreements etc. nothing was filed on record by the respondent FI, whereas these documents were very much required for just decision of the case because from the Panchnama dated 28.01.2022, it is clear that the respondent FI, took possession of 05 flats, so it is clear that the loan was obtained and sanctioned by the Respondent FI for construction of Flats and not a house because total 12 flats, were constructed upon the Plot no. 19.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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C. The amount due as on 27.03.2021, was in total not more than Rs. 4650000/- whereas possession of total 05 flats, cost of which must be around Rs. 64,00,000/- as cost as per Sale Deed is Rs. 1280000/- for one flat.

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D. Respondent no. 2 & 3 i.e. borrowers of Respondent FI failed to appear before this Tribunal and they also failed to challenge any action initiated by the Respondent FI.

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E. Fact is that borrower i.e. Respondent no. 2 & 3, obtained cost of both the flats from the SA applicants, but failed to deposit the same with the respondent FI.

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Respondent FI, filed reply to SA on 07.09.2022, i.e. after about four months time and after availing 7 to 8 opportunities and their object was delay to proceedings as they were having physical possession of flats in question as well as all the flats.

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Prayer of condonation of delay was decided by this Tribunal on 12.04.2023, the order has attained finality as has not been challenged before any higher forum.

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10.An IA no. 2094/2022, was filed by the SA applicants on 02.12.2022 with a prayer to take on record copy of applications under Section 340 CrPC and copies of FIRs at Annexure A-8 and A-9 respectfully.

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11.Reply to this IA was not filed by the Respondent FI and so, it is clear that they have no objection it. As the F.I.R. were lodged by the SA applicants, after obtaining an order under Section 156(3) of CrPC passed by the competent Court of Jurisdiction F.I.R. was lodged against the officer of the Respondent FI and borrowers and it is also a fact that the allegation, so alleged were undergone judicial scrutiny.

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12.Accordingly, I.A no. 2094/2022, stands disposed of as allowed and documents filed along with are allowed to be taken on record being a public document, in nature also.

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13.An additional affidavit, in the compliance was also filed on 20.09.2023 vide Dy. no. 1896 by Authorized Officer of the respondent FI and along with it at Annexure R/12, copies of total 06 (six) No Objection Certificates were issued on 13.02.2020 ( 2 NOC) dated 30.03.2020 (1NOC) dated 14.07.2020 (01 NOC) on 07.09.2020 (01 NOC) and one undated NOC.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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14.All the NOC’s of total six flats were issued in favor of borrowers. Respondent No. 2 & 3 and respondent FI, released all right, claim interest and charge over Flat No. F-1, F-4, S-3, G-1, G-2 and F-2.

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15.Now, the issues which were raised by Ld. counsel for the SA applicant are to be decided in the light of reply filed by the respondent FI.

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16.Ld. counsel for the applicants argued that the Respondent FI, sanctioned a credit facilities in the shape of “Housing Loan”, but the said amount was used by borrowers, Respondent no. 2 & 3 for construction of flats which in fact was a commercial activity and this fact was well within the knowledge of Respondent FI, but they with an ulterior motive and with an intent to cheat and defraud the flat purchasers, allowed the sale of “Flats” in question and obtained possession of five flats whereas the Flats, so constructed were not at all mortgaged.

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17.Ld. counsel for the applicants also argued that the Respondent FI issued 6 NoCs, but amount is not mentioned and the demand raised by respondent FI is also illegal.

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18.It was also argued that the applicants being bona fide purchaser are having right in the subject land (Plot no. 19) as per proportion and the Respondent FI took physical completely in illegal manner so all the actions initiated by the Respondent FI are required to be quashed and set aside.

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19.Ld. Counsel for the applicant prayed that all the actions taken by respondent FI, qua the subject flats be quashed and set aside and respondent FI may be directed to restore possession of flats, in favor of SA applicants.

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20.On the other hand, Ld. counsel for the Respondent FI, strongly objected all the ground taken by SA applicants, mainly on the grounds that the applicants do not have any locus to challenge any of the actions initiated by them because they are not related to credit facility and further they purchased the flats on the Plot which was mortgaged with them.

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21.Ld. counsel also argued that as the Respondent No. 2 & 3, failed to reply so they do have every right to recover their outstanding amount from the mortgaged property i.e. Plot no. 19.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Ld. counsel finally argued that all the actions initiated by them are as per law and so, SA is required to be dismissed with heavy cost.

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23.Heard arguments and perused the record.

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24.It’s an admitted fact that SA applicants are neither borrower nor guarantor.

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25.It’s also a fact that credit facilities were sanctioned in favor of Respondent No. 3 and 4 on 31.05.2020 and Plot no. 19 was mortgaged, NOC of total 06 Flats was issued on 13.02.2020, meaning thereby NOC of 06 Flats was issued before sanctioned of credit facilities i.e. on 10.03.2019 and 31.05.2020.

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26.In Para no. 3 to the reply to IA, it is admitted that either the SA applicants purchased the Flats in connivance with the Respondent FI or they are subject of some fraud being played by borrower respondents.

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27.In Para no. 3, of the Additional Affidavit it is admitted that flat owners of Flat No. S-1 and S-2 took possession of their flats and later on they assured to make payment of Rs. 20,00,000/- for each flat in order to seek NOC and they deposited an amount of Rs. 5,00,000/- for each flat through DD, copies of which are filed at Annexure R/13.

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28.It is also admitted that the buyer of Flat no. F-3 availed a housing loan of Rs. 10,00,000/- from them (Respondent FI) so possession of said Flat was not taken.

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29.That as on 20.09.2023 an amount of Rs. 6522342/- was outstanding against Respondent No. 2 & 3.

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30.So, it is clear that total 12 constructed Flats so constructed over Plot no. 19 were complete and fact was well within the knowledge of respondent FI.

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31.As per Annexure R/2, CERSAI Charge was created on Plot no. 19 only on 10.03.2019, area of Plot was 400 Sq. Yards and there was nothing mentioned about Flats so constructed over the subject Plot No.19.

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32.It was well within the knowledge of Respondent FI, that Flats were constructed over Plot no.19, account of borrower was declared as NPA and Demand Notice was issued, but even then Respondent no. 2 & 3 failed to inform to all remaining 05 Flat buyers that the Plot no. 19 is mortgaged as both the SA applicants got Sale Deed Registered on 18.06.2020.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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33.It is also a fact that Respondent no. 2& 3, obtained Sale consideration of Rs. 1280000/-and Rs. 12,00,000/-, but failed to deposit it with the Respondent FI, whereas there was a liability to repay outstanding amount.

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34.Respondent No. 2 and 3 committed default with the respondent FI and not the present SA, but now present SA applicant are facing actions initiated by the Respondent FI.

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35.It was argued by Respondent FI that the SA applicants are third party who are neither borrower nor guarantor and so they do not have any right to challenge the actions initiated by them.

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36.Entire sale consideration was paid by SA applicants to Respondent no. 2 & 3 who are borrower of Respondent FI, but when the respondent FI started proceedings under the provisions of SARFAESI Act of 2002, they took possession of the selected flats and not all. Further, respondent FI is in process of collection of amount by other flat owners and so possession of selected flats taken by respondent FI, goes to show that the respondent FI is taking actions which are not bona fied and are against the law.

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37.Copies of FIR lodged by present SA applicants and others are filed at Annexure A-9, FIR no. 2094/2023 and FIRs were lodged on the basis of order passed by competent Court under Section 156(3) of Cr.PC, meaning thereby allegations as alleged have already undergone judicial scrutiny.

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38.The FIR were registered during the period Feb.2021 to May 2022, but the respondent FI failed to mention this fact in the reply to SA, so filed on 07.09.2022 and so this fact also goes to show mala fide on the part of respondent FI as they successfully concealed this fact.

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39.Mala fide intention on the part of respondent FI can also be seen from the fact that they delayed in filing reply to the SA because vide order dated 11.05.2022, they were directed to file reply in the presence of their counsels, but reply was filed on 07.09.2022, i.e. about after 4 months and as they took physical possession so they delayed proceedings of this SA.

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40.In the light of counter affidavit dated 03.10.2023 filed by the SA applicant, It is clear that the respondent FI has already recovered amount as claimed as outstanding in the Demand Notice and

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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connivance of borrower and respondent FI is clear apparent on the fact

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of record, so following order is passed: -

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This Securitization Application disposed of as allowed.

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The Respondent FI is directed to handover physical possession of the subject flat in favor of SA applicants within a weeks time from today.

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All the action initiated by the respondent FI against the Flats of SA applicants stands quashed and set aside.

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Copy of the order be given free to the concerned parties.

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File be placed before the Registrar for compliance after compliance file be consigned to record, as per rules.

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(VIVEK SAXENA) Presiding Officer DRT, Jaipur

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Smt Suvarcha Choudhary v. Aavas Financiers Limited

Case brief

What is this about?

What did the court decide?

Smt Suvarcha Choudhary v. Aavas Financiers Limited

Case brief

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What did the court decide?

What the court decided

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