The applicant sought to restrain the respondent secured creditor from taking possession of a property based on an Agreement to Sell executed after a demand notice under the SARFAESI Act. The Single Judge held the agreement void and dismissed the application.
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SA No. 205 of 2023
| 26/10/2023 | Ex. No. Before Presiding Officer Dr. Rekha G. Dhakar, DRT-1, Mumbai. Roznama in SA 205 of 2023 Prakash Nanhak Mandal Vs ASREC India Limited |
Next date |
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| Advocate Punit Gogad a/w Advocate Daksha A. Parmar i/b Advocate Prajot H. Jaggi appeared for the Applicant. Advocate for the Respondent present. IA No. 3135/2023 1. By way of the present IA as well as SA, the Applicant is praying to restrain the Respondent from taking possession of the shop property i.e. shop premises Unit No. 318, Creative Industries Premises Co- op. Soc. Ltd. Sundar Nagar, Road No.2, Kalina Santacruz (East), Mumbai-400098 |
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| (hereinafter referred as “property in question”). 2. Ld. Counsel for the Applicant of SA contends that Applicant of SA is a person who lends the money to the Respondent No.2. By way of the M.O.U. dated 23/03/2013, by said memorandum, the |
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SA No. 205 of 2023
parties were agreed in case Respondent No.2 failed to pay the said amount of Rs. 9,40,000/- the Applicant would be entitled to take possession of the shop premises and same will transfer in the name of the Applicant and no extra money for transfer of the shop will be paid. He also stated that the Respondent No.2 failed to pay said amount and further the shop was to be transfer in the name of the Applicant thus and agreement to sale was entered between the Applicant as well as Respondent No.2 on 17/10/2019 and from the date of the said agreement to sale, Applicant is in possession of the property in question. It is also stated that despite request of the Applicant Respondent no.2 did not registered the said agreement and the Applicant herein has already paid amount Rs. 53 Lakhs therefore he submits that Respondent No.1 may be restrained from taking possession of the property in question. 3. In rebuttal, Ld. Counsel for the Respondent strongly objected on the
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present SA and submits that the present SA is a forum shopping tactics of the parties. He submits that the borrower of the bank has already challenged the action of the Respondent no.1 before the Ld. DRT-2, Mumbai, which is listed today only, wherein the property in question is also under challenge. He also stated that the right of the Applicant is not maintainable on the basis of said M.O.U. as well as agreement for sell. He also stated that both these documents are not admissible evidence. Further, he states that agreement to sell subsequent to the demand notice under Section 13(2) of the SARFAESI Act, 2002, therefore, also the Applicant is not entitle for any relief in the present SA. Thus, he submits that present SA alongwith IA may be dismissed. 4. Considered the rival contentions of the parties and gone through the record. 5. Admittedly, the Applicant is claiming its rights on the basis of the Agreement to sell which was entered between the Applicant as well as Respondent no.2 /
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SA No. 205 of 2023
| i.e.borrower of the Bank on 17/10/2019 | |
|---|---|
| whereas the demand notice under | |
| Section 13 (2) of the SARFAESI Act, 2002 | |
| was issued on 02/08/2019 thus, the | |
| Agreement to sell on the basis of which the Applicant herein is claiming his rights is subsequent to the demand notice and therefore the said Agreement to sell shall |
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| hit by the provision of Section 13 (13) of the SARFAESI Act, 2002, which provides |
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| that: | |
| “No borrower shall, after receipt of notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his |
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| secured assets referred to in the notice, | |
| without prior written consent of the secured creditor”. (emphasis provided) |
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| 6. | Thus, in terms of provisions of Section 13 |
| (13) of the SARFAESI Act, 2002, as the | |
| alleged transaction has taken place | |
| subsequent to the Demand Notice under | |
| Section 13(2) of SARFAESI Act, 2002, |
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therefore, the alleged transaction is void
ab initio and the Applicant is not entitled
to claim any relief on the basis of said
transaction.
7. In view of the above, the present SA as
well as IA is dismissed as not
maintainable.
File be closed and consigned to the record
room.
Ex-11 Service affidavit
Ex-12 Pursis
P.O.
DRT-I
Sgj/-4
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2 issues framed by the court
Whether an Agreement to Sell executed after a Section 13(2) demand notice is valid under Section 13(13) of the SARFAESI Act, 2002.
Whether the Applicant is entitled to restrain the secured creditor from taking possession of the secured asset based on the void agreement.
2 provisions across 1 enactments
Prakash Nanhak Mandal
ASREC India Limited
Dr. Rekha G. Dhakar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
