Dismissed

Sheela Prakash Srivastava v. Bank of Baroda

DRT6 Feb 2023SA/37/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed an application by a home loan borrower seeking to set aside an auction of her property. The Tribunal upheld the recovery proceedings initiated by the bank under the SARFAESI Act, finding the applicant failed to establish any just cause for nullifying the sale after defaulting on loan instalments.

What did the court decide?

The application was dismissed and interlocutory applications stand disposed of. No order as to costs.

Sheela Prakash Srivastava versus Bank of Baroda — Contract and Commercial Disputes | DRT (2023)

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IN THE DEBTS RECOVERYTRIBUNAL- I AT HYDERABAD

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DATED THIS THE 6TH DAY OF FEBRUARY,2C.23

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PRESENT: GUMMADI GOPICHAND, PRESIDING OFFICER

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SA.No.37./2c22

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Sheela Prakash Srivastava, W/o. Sri Prakash Chandra Srivastava, Aged 56 years, Occ: Household, R/o.H.No. 1-2 -2tS / B / t, Sri Durga Niwas, Gagan Mahal, Domalguda, Hydeiabad_29.

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Applicant.

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Versus

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Bank of Baroda,

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Rep. by its Chief Manager,

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A. Shiva Prasad, S/o. A. Venkateshwara

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Rao, Himayathnagar Branch, Hyderabad_29.

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Sri Shylesh Kumar Chembeti, !1o.,S.i^{C. KrishnaRao, aged about35 yrs.,} Rlo.161257, Saidabad, Near Old pallavi Threatre, Hyderabad - S00 0S9.

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Respondents.

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(Respondent No.2 is impleaded as per Order dt. 1 2. 07. 2 02 2 in IA. No. 7447 2O2 2 )

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Sri Yogeshwar Raj Saxena. Sn Snniuas Chitturu. Counsel for Respondent No.2 : Si Abhay Singtu

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This application is fired ffint u/s.r7 of the SARFAESI Act, 2OO2, for setting aside the auction of G+2 Floors conducted on ]^{by the lst Respondent Bankwith respect to the} sch edule . -.'.r::.P&Nu = "]S -d$ n"trrlh\ilding that the part and parcel of the property consisting ura6 wrof ii.,i-'- ,'.::) having G + Upper 5 Ftoors bearing Municipal l"l',lA\rairg ' ,rI' Nd.I 2-2IslBltt,Ot, t_2_2t;/BllA (new), land admeasuring 200 sq. *, [&#S3$B.r E# "0. yds., situate; ";';;;;;;;;;ffi;: ,, .1 r^{Hfderaba$ft$/for grantingperpetual} injunction against the lst 't'&;w#

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sa.No.37/2022

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Respondent Bank and their persons by restraining them to interfere in any manner whosoever in the subject property for disturbing the possession of the Applicant and also for granting perpetual injunction restraining the Respondent Bank and their persons by getting register, selling and by claiming, creating any charge or right upon the subject property.

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The averments made in the application, in brief, are as under,_

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The Applicant is the absolute owner and possessor of the schedule property by virtue of the registered Gift Deed dt.24.O4.2O12, having gifted by her husband Sri prakash Chandra Srivastava, to the extent of 200 sq. yds., out of 500 sq. yds., with built-up area of 100 sq. ft., house bearing Municipal No. 1-2-215lB/1 (old), t-2-2t1lBlAt (new), situated at cagan Mahal, Domalguda, Hyderabad.

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ii) The Applicant and her daughter were jointly sanctioned Housing Loan amount of Rs.S1,0O,0OO/_ by the 1st Respondent Bank for construction of subject building i.e., G+2 Floors. After availing the said loan, the Applicant has repaid around Rs.21,64,166/_ towards the loan account. The Applicant and her daughter were regular in the repayment of the loan amount except during the Covid Pandemic period. Despite there being guidelines/ instructions from the Government and other relevant authorities for dispensation of repayment of loans to the Banks during the said Covid pandemic period, the lst Respondent Bank onpQ.O3,2.pJr,i9sued letter demanding the Appticant and .*"- o u.verdue amount of Rs.l.89 lakhs,

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her rl*iqh4r'to"*rry-'H" b$ than

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whi'{}as a[$ror rr5]'tt"" 3 months. The Appticant has for -moratorium r*t,r b dt rt h e 1st Respondent Bank has not .B&Jf;g ?ffirgh$'rouiding and extending moratorium the debtors pandemic period was the policy During the Covid pandemic, the

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SA.No.j7/2022

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Applicant, her mother and other family members were affected with Covid and her husband underwent live surgeries to his leg in tJre hospital, for which huge expenditure was incurred. After lessening of Covid effect situation, even when the Applicant was ready and willing to deposit Rs.5,00,000/- towards the overdue amount in the loan account, the lst Respondent Bank has not accepted the same only with a malafide intention to auction the schedule property.

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iii) The property mortgaged to the lst Respondent Bank at the time of availing the loan is G+2 floors out of G+5 floors in an extent of 200 sq. yds., and the total value of the property i.e., G+5 floors is approximately Rs.S,40,00,000/- and whereas the lst Respondent Bank sold the property by grossly undervaling. Further, the lst Respondent Bank is intending to claim and auction the subject building premises to the extent of even 3.d, 4th and 5ft floors, which is unauthorized, illegal and is beyond the lst Respondent Bank,s authority as the said 3 to 5 floors of the subject building are absolutely not the subject matter of the credit facility or the auction related proceedings of the l"t Respondent Bank.

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iv) The Applicant, in order to regularise the subject building has applied for BRS to the GHMC on 29.12.2015 and same is pending. Further, the GHMC vide its demand notice dt.08.f l.2O2I claimed property tax of Rs.2,90,937 /_ in respect of the subjegt building for the year ending 3lst March, 2022, for h the Alpficant's husband sent a reply dt.O9.1l.2O2t to floor-wise door numbers for Ground + 5 upper

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floo same is under consideration by the GHMC auth r t,t'l

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b^cefi v) The t got issued legal notice dt.22.t1.202t to the lst Bank to permit the Applicant to deposit

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SA.No.37/2022

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Rs.5,00,000/- towards the outstanding dues in order to cancel the auction proceedings, not to create any charge upon 3 to 5 floors of the subject building and to close the roan account after resolving the same permanently. The lst Respondent Bank in its reply dt.12.12.2021 denied to consider the same and many of the aspects of the Applicant,s legal notice were not specifically replied and the lst Respondent Bank was mute on the issue of wrongly claiming 3 to S floors of the subject building. Further, the said reply issued by the lst Respondent Bank was not within the time period stipulated under the Act and the Rules. The Applicant got issued another urgent legal notice dt.OS.Ol.2O22 to the lst Respondent Bank not to sell or create any charge or claim up on 3 to 5 floors of the building.

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vi) The l"t Respondent Bank has auctioned the property to the extent of G+2 floors on 22.10.2021 through e_auction sale and deposited an amount of Rs. 1,6g,73,560/- into the NpA account on 26.1L.2O21. The 1st Respondent Bank has adjusted around Rs.60.00 lakhs towards the loan account and the remaining Rs. 1,15,00,000/- was credited to the Applicant,s account. The actual value of the property i.e., G+5 floors building is Rs.5,40,00,000/- but, the lst Respondent sold the propert5z for an undervalued price, which caused irreparable loss and injury to the Applicant. The Auction purchaser and his persons are misleading the registration authorities that it is only G+2 floors by suppressing the fact of existing G+5 floors of the subject ding. Further, any claim, charge, stake and interll'erence by pondent Bank on the upper 3 to 5 floors of the i lsuu;Jlt'p\ is quite capricious, illegal and invalid, as the '- tsaid floorq the building are not the subject matter of auction IDfrF4ffi"."et or mortgaged with the lsr Respondent Bank in er and the claim on the said floors is quite invalid 'ce, the SA.

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SA,No.37/2022

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.fThe 1"t Respondent Bank filed its Reply Statement denying all the adverse allegations made in the application. The contentions of the 1st Respondent as seen from its Reply Statement, in brief, are as under,_

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i) The Applicant has admitted availing of Housing Loan of Rs.51,00,000 /- from the lst Respondent Bank by executing the loan documents on 16.07.2016 and creating securit5r interest by way of equitable mortgage of the schedule immovable property. As the Applicant committed default in repaSrment of the loan amount, the loan account was classified as NpA on 31.03.2021 and the 1st Respondent Bank invoked the measures under the SARFAESI Act and the Rules made thereunder by issuing Demand Notice dt.03.04.2}21 u/s. 13(2), followed by possession Notice dt.17.06.2O2L and the Notice dt.07.08.2O2t u/r.8(6) and finally the Auction Sale Notice dt.rz.og.2o2r. A1l the said notices were duly served on the Applicant. The l"t Respondent Bank has also affixed the Possession Notice and the Sale Notice on the secured asset and also published the said notices in two newspapers. In the auction conducted on 22.10.2021 , the 2"a Respondent herein became the successful bidder having quoted the highest amount of Rs. 1,70,44,000/-. After payment of the entire sale consideration, the l"t Respondent Bank issued Sale Certificate dt.O6.l2.2O2l in favour of the 2"d Respondent.

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ii) After conducting of auction, the Applicant got issued a legal notice dt.22.1O.2O2L, to which the lst Respondent Bank sent a reply on 12.12.2021. Thereafter, the Applicant got issued another f;ti""^{at.OS.Ol;,2O22 and approached the lst Respondent} letter dt. 13.01.2022 requesting the l"t Respondent

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,11^,4| it the balance of auction proceedings of

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t# 15,65, 7 into her savings account and accordingly the

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Odlffffifla.*tilaa"r.^{has credited the said amount to her} present application is filed by the Applicant

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S'A. No.37/2022

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with fraudulent and malafide intention to defeat the recovery proceedings.

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iii) The loan was sanctioned for construction of the house in the mortgage premises as per the Sanction Building permit dt.08. 10.2013 issued by the Commissioner, GHMC by imposing a condition of mortgaging lOoh of the proposed construction to be released upon completion of construction and at the time of issuance of the Occupancy Certificate. The Applicant having failed to complete the construction, the Occupancy Certilicate was not obtained and the IO%o of the mortgage created over the super structure in favour of the GHMC is subsisting. The l "t Respondent Bank sold the property as semi-finished building to the 2nd Respondent-auction purchaser to complete the construction and to obtain the occupancy certificate from the GHMC in accordance with law and to this effect, the said factum of loo/o of mortgage in favour of GHMC has been stated under rist of encumbrance to the Sale Certificate dt.O6.l2.2}2l . Tne concerned SRO, Chikkadpally refused to receive and register the Sale Certificate on the ground that 10% of the subject property is under mortgage to the Municipal Corporation. So, the 1"t Respondent Bank filed Wp.No.l2197 12022 before the Hon,ble High Court for the State of Telangana and the same was allowed directing the Registration Department to register the Sale Certificate.

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ir) -Jj*-1qlryrtion proffied by the l"t Respondent Bank cannot be The Applicant is taking into consideration the '{[email protected].\t!n. A-17 LrrE E^LcrrL ur uuu l. , .,": ''^{; l''} .1."tt'ffi is far ; . , beyond^{r..@.[r"rr" --} t[Aipermission^{has raised} granted. The value of -^{the slabs and the extent} the land of flooitself rs 1 . --^.!':1a il ,, -.^{[.,1s+fe ffitr," ?di,k u"lr". is very realistic and the Appticant} i,. ,, ., ' Iannot trave 4iy/ gnevance. Mere submission of the application ,:.;e*^{regr-rlarizationwill not make the illegalconstructionlegal.The} ..-.,t.::- . . -; -, i1:. -: .. "--.^--..)''

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:A,No.37/2022

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Applicant has not made out any case and the lst Respondent Bank has followed the due procedure in accordance with law.

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The 2"d Respondent-auction purchaser filed his Reply Statement contending that In the Sale Notice dt.17.09.2o21, issued by the l"t Respondent Bank fixing the auction of the schedule propert5r on

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22.10.2021, it was very clear in its terms that reserve price of the property is Rs. I 14.44 lakhs and an amount of Rs. 1 1.45 lakhs was to be deposited for participating in the auction proceedings. Accordingly, the 2nd Respondent remitted an amount of Rs. 1 1.45 lakhs and participated in the auction, wherein he stood as successful bidder for Rs. 1 ,70,44,OOO/ - and he deposited the entire bid amount by 25.Ll.2021. Thereafter, the lst Respondent Bank issued Sale Certificate in his favour on 06.L2.2021. He further contended that, the present SA is filed by the Applicant challenging the auction proceedings dt.22.lo.2o2l, after conducting of auction and issuance of sale certificate by the l"t Respondent Bank, without making any valid ground for setting aside the said auction proceedings.

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The Applicant filed rejoinder to the Reply filed by the lna Respondent reiterating her version in the SA and contending that the 2"d Respondent-purchaser has no title, interest or any valid claim upon the schedule property and his claim over the said property is invalid and has no legal force and effect in law. She further contended that, the 2"d Respondent without veriffing and enquiring the status, topography and the physical structure and features of the property, its layout, true and factual aspects etc., has grossly undervalued it in collusion with tir. 1"t'Bbspondent Bank and the 1"t Respondent Bank dent-auction purchaser are knowingly suppressing e true facts and nature of the property i.e., G+5 ut, plan/map of the property, nature of undivided under BRS, mortgaged to the Municipal fact of existence ofG+5 floors was suppressed by the concerned Registration Ofhce.

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g.No,37/2022

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Heard arguments. Ld. Counsel for the Applicant filed his Written Arguments.

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Now, tJre points that arise for consideration are,-

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Whether the Applicant has made out any valid ground for setting aside the auction of subject property i.e., G+2 floors in the building bearing Municipal No.1-2-215lB/t (oldl, L-2215/Bll lA (new), in the land admeasuring 200 sq. yds., out of 5O0 sq. yds., situated at Gaganmahal, Domalguda, Hyderabad?

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ii) To what relief2

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Polnt No.(l)i

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During the course of arguments, Ld. Counsel for the Applicant reiterated the version of the Applicant as stated supra. He further argued that, despite addressing letters by the Applicant for granting of moratorium in view of the Covid pandemic, the l"t Respondent Bank has not considered the same and proceeded under the SARFAESI Act, for the recovery of outstanding dues. He further argued that even when the Applicant was ready to repay the loan amount, the lst Respondent Bank bluntly ignored the same and proceeded with the sale of the subject property. He further argued that the subject property consists of Ground + 5 upper floors in 200 sq. yds., and undivided share of land should be divided for G+5 floors, which comes to the extent of 33.33 s-q. I yds., and by suppressing the said fact, the l"t Respondent Bank auctioned the said property. He also argued that, their is under mortgage with GHMC and the by the Applicant for regularization of the s pending before the GHMC and the l"t "^{*.W&"flEgtffinktE} not filed any document to show that it has ?.,^obtained *o"-*ts-S GHMC and so, the auction of the subject "pr.dpqs, the lst Respondent Bank is invalid in law. He the total market value of G+5 upper floors of the

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SA.No.37/2022

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subject property is approximately Rs.5,40,00,000/- and whereas the lst Respondent Bank has grossly undervalued the said propertlr and sold the same for Rs.1,70,00,00O/- in favour of the 2nd Respondent and so, the auction proceedings have to be set-aside.

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Ld. counsel for the lst Respondent Bank by reiterating the version of the lst Respondent Bank, as stated supra, further argued that, as the Applicant committed default in the repayment of the loan amount, the l"t Respondent Bank has proceeded under the SARFAESI Act against the schedule property by serving all the statutory notices on the Applicant and the Applicant has filed the present SA only after conducting of auction of the subject property and issuance of Sale Certificate in favour of 2"d Respondent. He further argued that, the Applicant herself, having voluntarily requested for crediting the balance sale proceedings into her savings account, is now estopped from retracting and challenging the auction.

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Ld. Counsel for the 2"d Respondent supported the version of the Ld. Counsel for the l"t Respondent Bank.

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There is no dispute regarding the fact that the Applicant and her daughter as co-applicant availed Housing Loan of Rs.S1,00,000/- for construction of G+2 floors in the land admeasuring 200 sq. yds., out of 500 sq. yds., Gaganmahal, Domalguda, Hyderabad, by creating mortgage over the said property as security in favour of the l"t Respondent Bank. There is also no dispute regarding the fact that the loan instalments regularly for some time,

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,^{contentionof the Applicantthat, she made} Respondent Bank for granting moratorium c but the lst Respondent Bank has not

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sia0 of the purview of this Tribunal under the s of the S-Afii'neSf Act. The Hon'ble Supreme Court in Qf'India^{- AIR} 2007 SC 712", has very clearly held the NPA Act (SARFAESI Act) does not deal with

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S,A.No.37/2022

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disputes between the secured creditor and the borrower and on the contrary, the NPA Act deals with the rights of the secured creditors inter se, the reason being the NPA Act proceeds on the basis that the liability of the borrower has crystallized and that his account is classified as non-performing asset in the hands of the bank/Fl.

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L2. The next contention of the Applicant is that the subject property consists of a building with G+5 upper floors in an extent of 200 sq. yds., and out of the said floors, only G+2 floors are mortgaged to the lst Respondent Bank and that the l"t Respondent Bank without disclosing the fact of existence of 3rd, 4th & 5m floors sold away the said building by suppressing the undivided share and also by ignoring the fact that the application submitted by the Applicant for regularization of the building under BRS is under consideration by the GHMC. Admittedly, as per the building construction plan sanctioned by the Municipal authorities, a copy of which has been liled by the l"t Respondent Bank in its material documents along witl the Repty Statement, permission was given to the Applicant for construction of Ground, First and Second Floors in the subject property. It is also not in dispute that the Municipal authorities have given the said construction permission on creation of mortgage of loo/o proposed construction, which shall be released after completion of construction and at the time of issuance of Occupancy Certificate. Admittedly, the Applicant did not complete the construction and has not obtained Occupancy Certificate from the Municipal Authorities. The Applicant -"!i: -:' cted 3'd, 41 & 5e floors slabs on the said building Admittedly, the Applicant submitted an application of the building under BRS to the Municipal authoritie*$ra "urn. is pending consideration. But, that doesn't mean tt$hlE?h. t$fiespora..,t Bank, being a secured creditor, is estopped to enforce".dL-cilritv fi#.ity^{intereston the said subject property, being the} t, under the provisions of the SARFAESI Act to recover its te dues from the Applicant. As stated supra, as per the building sanction plan given by the Municipal authorities, the

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.4'R-"!i: -:'

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SA.No.37/2022

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Applicant was permitted to construct G+2 floors. The Applicant availed the Housing Loan from the I st Respondent Bank for construction of G+2 floors in 200 sq. yds., out of 500 sq. yds., as per the said building sanction plan given by the Municipal authorities and mortgaged the same in favour of the lst Respondent Bank. It is not the case of the Applicant that while mortgaging the said building undivided share of land for each floor i.e., Ground, First & Second Floors was mentioned. Further, when the unauthorized construction o1 3ra, 4tn & 5ft floors was not regularized, the question of assigning undivided share of land to each floor does not arise. Further, as per the version of the l"t Respondent Bank, after sale of the subject property i.e., semi-constructed building in auction and issuance of Sale Certificate in favour of the 2'a Respondent, the concerned SubRegistrar Oflice has objected for registration of SaIe Certificate in view of mortgage of lOoh proposed construction in favour of GHMC. Aggrieved by the same, the l"t Respondent Bank filed WP.No.l2197 12022 before the Hon'ble High Court for the State of Telangana and the said writ petition was allowed directing the Registration Department to register the Sale Certificate, a copy of which has been liled by the 1st Respondent Bank along with a Memo dt.os.o4.2022.

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The next contention raised by the Applicant is that, the market value of the subject property (G+5 upper floors) is around Rs.5,4O,00,000/but the 1't Respondent Bank has grossly undervalued the property and sold it in the auction for Rs. 1,70,00,000/- so, same is illegal and e l"t Respondent Bank in its material documents filed a n Report obtained from Sri V. Ravinder Rao, Govt.

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,," a perusal of the said report, it is clear that the i-hnished and that the value of Ground, First

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+&*tudfl$"^.3, building is Rs.22,65,283 (Rs.7,55,0941- per and of the land is Rs. 1,27,15,000/-, which is the alue and the Realizable Value is given as

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and the Distress Value is given as Rs. 1,01,72,000/-

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SA.No.37/2022

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whereas in the auction of the subject property conducted by the rst Respondent Bank, the highest bid, which was quoted by the 2"a Respondent herein is Rs. 1,70,00,000/_. Therefore, I do not find any force in the contention of the Applicant that the 1st Respondent Bank has undervalued the property.

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It is also pertinent to note that, after auction of the subject property ot 22.10.2021 and issuance of sale certificate dr.o6.r2.2o2L by the lst Respondent Bank in favour of 2"d Respondent, the Appricant vide her letter dt.13.o1.2022 (copy liled by the 1"t Respondent Bank along with Memo dt.OS.O4.2O22) reque sted the l st Respondent Bank to transfer the available credit balance of Rs. 1, 15, 65,947 .47 from her Housing Loan account (surplus sale proceeds after adjustment of outstanding dues) to her Savings account. So, it is clear that the Applicant without any objections to sale of the subject property in favour of 2"d Respondent, voluntarily requested the l"t Respondent Bank to transfer the balance sale proceeds to her savings account. Further, as per the documents fired by the rst Respondent Bank along with its Reply Statement, the Demand Notice 03.04.2021 issued u/s. 13(2), Possession Notice dt.17.06.2021 issued u/s. 13(4), Notice prior to sale dt.07.08.2021 issued under Rule g(6) and the e-Auction Notice dt.17.09.2}21 by the l"t Respondent Bank, are all served on the Applicant. The lst Respondent Bank has also filed copies of photographs taken at the time of affixture of possession Notice and the sale Notice on the subject property and arso copies of publications of Possession Notice and the sale Notice in the newspapers. The Applicant has not taken any objections to the sARFAESI proceedings the l"t Respondent Bank at the earliest point of time i.e., Demand Notice dt.03.04.2021, to which she is entitled JS s. 1 ,of the Act. Further, the Applicant has also not i* challensed thb taken out by the lst Respondent Bank uAtEnJi[i.r ,ni AESI Act i.e., after receipt of possession Notice after receipt of Notice prior to SaIe dt.07.08.2021 Notice dt. 17.09.2O2L and she has filed the present

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SA.No.37/2022

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SA challenging the auction proceedings of the subject property dt.22.1o.2o21, after completion of sale i.e., after conducting of auction and after issuance of Sale certificate dt.o6.l2.2o2L in favour of the 2"d Respondent, with untenable grounds.

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so, considering all the above circumstances, I am of the opinion that, the lst Respondent Bank has duly folrowed the procedure under the SARFAESI Act and the Rures thereunder, in conducting auction of the subject property and the present sA frled by the Applicant is devoid of merits. Accordingly, this point is answered against the Appricant and in favour of the Respondents.

¶82

Polnt No.lii)t

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In the result, the present Securitization Application is dismissed. Consequently, the Interlocutory Applications, pending if any, shall stand disposed of. No order as to costs.

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Communicate a copy of this order to the parties concerned.

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(Dict?.ted-t: :he Palate Secretdry, trans$ibed bA hitu, cotected., signed and pronounced bA ne h the operl court on this the 6n day of February, 2023).

¶86

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¶87

sd/(G. coPrcHAND) Preslding OIIicer

¶88

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Sheela Prakash Srivastava v. Bank of Baroda

Case brief

What is this about?

What did the court decide?

Sheela Prakash Srivastava v. Bank of Baroda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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