Dismissed

Dharmendra Kumar Sharma v. LIC Housing Finance Ltd.

DRT17 May 2023SA/9/2023

Case brief

AI extract

What is this about?

Decided a recovery suit by applicants claiming ownership of flats sold by Defendants who were also mortgagors. Court dismissed applications, held sale deeds invalid due to lack of registered authority, and directed police to register FIR against defendants for criminal conspiracy and cheating.

What did the court decide?

FIR directed against Respondents 2 to 5. Recovery proceeding for outstanding loan amount directed to continue.

Dharmendra Kumar Sharma versus LIC Housing Finance Ltd. — Cheque Dishonour | DRT (2023)

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SA No. 09/2023

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

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SA No. 09/2023

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1. DHARMENDRA KUMAR SHARMA s/o Shri Jagdish Sharma, aged about 50 years, r/o Flat no. 202, S-16, Audhyogik Nagar, Shanti Nagar, in front of N.B.C, Khatipura Road, Jaipur.

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2. AMIN MUWAL s/o Shri Sandal, r/o 28, Imambara Road, Ward no. 28, Sardar Shahar, Churu, presently residing at Flat no. 301, S-16, Audhyogik Nagar, Shanti Nagar, in front of N.B.C. Khatipura Road, Jaipur.

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3. YUSUF KHAN CHOPDAR s/o Shri Ramjan Khan Chopdar, r/o Flat no. E-401, Raj Nagar, CHSL, 173, S.V. Road, Jogeshwari West, Mumbai THROUGH POWER OF ATTORNEY HOLDER AMJAD ALI s/o Shri Iqbal Ali, resident of Flat no. G- 1, Ground Floor, S-16, Audhyogik Nagar, Shanti Nagar, in front of N.B.C, Khatipura Road, Jaipur.

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4. SHEHZAD KHAN s/o Shri Zahoor Khan, r/o Flat no. F- 1(101), First Floor, S-16, Audhyogik Nagar, Shanti Nagar. in front of N.B.C, Khatipura Road, Jaipur.

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………Applicants

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Versus

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1. LIC Housing Finance Ltd. through its Authorized Officer, OFFICE - C-98, Upasana Tower, Subhash Marg, C- Scheme, Jaipur.

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2. ASIF QURESHI s/o Shri Haji Ramjan Qureshi, r/o Plot no. 362, Ved Marg, Shanti Nagar, Hasanpura - C, Jaipur.

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3. MRS. ZARINA r/o Plot no. 362, Ved Marg, Shanti Nagar, Hasanpura - C, Jaipur.

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4. MOHD. ARIF QURESHI r/o Plot no. 362, Ved Marg, Shanti

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Nagar, Hasanpura - C, Jaipur .

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5. WASEEM AHMED s/o Shri Jameel Ahmed, r/o Flat no. T- 5147-A, Block - 37, Rangoli Garden, Kanakpura, Panchyawala, Jaipur.

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..….. Respondents

Present:

Sh. Mahendra Singh & Giriraj Prasad, Ld. Counsel for the Applicant

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Sh. Raj Kumar, Ld. Counsel for the Respondent Bank/FI

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None for Respondent No. 2 to 5

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(Final Order)

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(17.05.2023)

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This SA was filed by four applicants on 28.12.2022, being aggrieved by the possession Notice dated 04.11.2022, affixed by the respondent bank at the subject properties i.e. 04 flats as they are neither borrower, nor guarantor to the credit facilities and they are owner of said flats, on the basis of Registered Sale Deeds, executed on 16.10.2018, 20.02.2019 and 04.05.2015 from Respondent No. 2, who was “Power of Attorney holder” on behalf of Respondent No. 3.

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As per Sale Deeds so filed at Annexure-2 following is the status of ownership as claimed in Para 2 an 3 of the SA:-

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1.	Sale Deed 16.10.2018	dated	in App Dha Kum	favo licant rmend arSh	ur fo No. 1 ra arma	Flat 202		no.
2.	Sale Deed 16.10.2018	dated	In App Ami	favo licnat n Muw	ur of no. 2, al	Flat 302		no.
3.	Sale Deed 16.10.2018	dated	In App Ami	favo licant n Muw	ur of no. 2 al	Flat 301		No.
4.	Sale Deed 20.02.2019	dated	In App Yus Cho	favo licant uf pdar	ur of no. 3, Khan	Flat 1	no.	G-
5.	Agreement to Sale 04.05.2015	dated	In App She	favo licnat hzadK	ur of no. 4 han	Flat 1	no.	F-

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Abovesaid all the four Registered Sale Deed were executed by Mr. Asif Qureshi, who is Power of Attorney holder

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of Mr. Wasim Ahmed, Respondent No. 4 and also his real brother.

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It is alleged in the SA, that the credit facilities were sanctioned in favour of respondent no. 2 to 5, by Respondent No. 1, is part of Criminal Conspiracy hatched between them, with an object to grab the above said flats illegally.

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It was argued that considering the Sale Deeds and Agreement to Sale, the applicants are bonafide buyer of the said flats, they are having peaceful possession and so the Respondent FI, do not have any right to initiate any proceedings for recovery of outstanding amount, due on respondent no. 2 to 5.

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From the above facts and as detailed in SA, it is clear that the SA applicants are neither borrower nor guarantor to any kind of credit facilities and they are simply claiming their right on the subject flats and are challenging the mortgage, so only issue of mortgage is to be decided.

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Reply to the SA was filed by the Respondent FI and along with reply Sale Deed dated 06.05.2014 and Sanction letter dated 30.04.2015 are filed. In the Para 1 to it, it is clear that Mr. Asif Qureshi (Respondent No. 4) sold Plot no. 5-16, Andhyogik Awas Yojana, Shanti Nagar, Jaipur to Mr. Wasim Ahmed(Respondent No. 4) on 07.05.2015, through Registered Sale Deed dated 07.05.2015 ( Annexure R/1).

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Mr. Wasim Ahmed (Respondent no. 4) obtained a credit facility of Rs. 40,00,000/- from Central Bank Home Finance Ltd and thereafter loan was transferred to Aditya Birla Finance. The Sanction Letter dated 30.04.2015 are filed at Annexure R/1/2 and R/1/3

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After that Mr. Waseem Ahmed and his wife Huma Shameem approached to the Respondent FI with a prayer to take over their housing loan from Aditya Birla Housing Finance and before sanctioning the said amount the property

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inspection was conducted by the Bank valuers, valuation report was submitted on 28.02.2017 and estimated market valuer of the property was Rs. 1,11,18,730/- so vide sanction letter dated 26.05.2017.

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The amount of Rs. 54.00 Lac as housing loan under Grah Vikas Scheme and top up loan of Rs. 26.00 Lac under Grah Vikas Scheme was sanctioned in favour of Mr. Waseem Ahmed Defendant no. 5 and his wife.

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The loan documents were executed on 30.05.2017, two loan accounts were opened and cersai charge was also created on 03.08.2017 and copy of sanction letter, copy of documents showing creation of equitable mortgaged by Mr. Waseem Ahmed, Cersai charge, Valuation report, Sanction letter dated 26.05.2017 are filed at Annexure R/1/4 to R/1/7 to the SA.

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After this Mr. Asif Qureshi, Respondent No. 2 and his wife Mrs. Jarina (Respondent No. 3) approached to the Respondent FI with a prayer to purchase the above said property for an amount of Rs. 90.00 Lac from Respondent no. 5 Mr. Waseem Ahmed and the loan amount of Rs. 74.00 Lac was sanctioned on 28.09.2019. The statement of account and sanction letter are at Annexure R/1/8 and R/1/9.

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From the above said details, it is clear that Respondent No. 5 Mr. Waseem Ahmed, purchased the property from respondent no. 2, Mr. Asif Qureshi, then they obtained the credit facility from LIC housing finance and then again sold out the subject property to Mr. Asif Qureshi by obtaining credit facility from the Respondent FI on 28.09.2019 and after that he executed the registered sale deed for an amount of Rs. 90.00 Lac on 28.02.2020.

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Sale deed was filed with the Respondent FI and the related documents are at Annexure 1/10 to Annexure 1/12 so as rightly pointed out by the Respondent Bank in Para 6 of the reply it is clear that the subject mortgaged property situated at Plot no. S-16 was mortgaged with Saint Bank Home Finance Limited on 30.04.2015, since 30.08.2017 but remained mortgaged with the Respondent FI and Respondent no. 2 and

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5 created different mortgaged deeds, obtained credit facility but after availing the credit facility from the Respondent FI, they sold out the flats so constructed over the subject plot on 16.10.2018, on 20.02.2019 and also entered into an agreement on 04.05.2015 very surprisingly or we can say that under wilful criminal conspiracy.

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Sale deeds were executed by Mr. Asif Qureshi as the power of attorney holder on behalf of Mr. Waseem Ahmed, Respondent No. 5, whereas he was having complete knowledge of the fact that the property has already been mortgage with the LIC Housing Finance Ltd but with a criminal intent in order to cause wrongful loss to the Respondent FI and wrongful gain to them, they executed total four sale deeds as detailed in Para 2 of this order, also entering into an agreement on 04.05.2015, the prayer of SA applicant no. 4 Sh. Shehzad Khan is not liable to be accepted because he has entered into an agreement for purchase of flat no. F-10, through agreement to sale dated 04.05.2015 and therefore similarly on the basis of such agreement to sale he is not owner of the property and therefore SA filed by the applicant no. 4 stands disposed of as dismissed.

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The Registered sale deed so executed on 16.10.2018 and 20.02.2019 are completely illegal because the same were registered by the seller, who is not having registered power of attorney in his favour and he has sold out flats, which were constructed over the subject mortgaged property.

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I am of the view that the SA applicant no. 1 to 3 were not vigilant enough before entering into any kind of agreement, before purchasing flats so constructed over the subject plots because they were required to take due diligence before going for registry of the said flats so constructed on the subject mortgaged property.

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Accordingly the SA filed by the SA applicant No. 1 to 3 also stands disposed of as dismissed, because they have purchased the flats which were constructed over the subject plot, which are mortgaged in the year 2015.

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This is the case of criminal conspiracy committed by Respondent No. 2 to 5 with a criminal intent to cause wrongful loss to the Respondent FI as well as to SA applicants also.

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Concerned Police authorities are directed to register FIR for the offences punishable under section 120B, 420, 467, 471 IPC and Respondent FI is directed to approach to the Police Authority for registration of FIR by filing a complaint before the concerned Police authority, against Respondent No. 2 to 5.

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With these observations the SA stands disposed of as dismissed.

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Respondent FI is at liberty to proceed ahead as per law for recovery of the outstanding amount.

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Vivek Saxena Presiding Officer DRT, Jaipur

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Dharmendra Kumar Sharma v. LIC Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

Dharmendra Kumar Sharma v. LIC Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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