Dismissed

Kailash Chand Sharma v. Bank of Baroda

DRT15 May 2023SA/438/2022

Case brief

AI extract

What is this about?

In two Securitization Applications regarding mortgaged properties, the DRT dismissed the applications. The court held that unregistered Agreements to Sale do not confer ownership rights against registered Sale Deeds executed later by borrowers who mortgages the property to the bank for loans. The bank was not at fault. The order further directed the bank to investigate potential family fraud.

What did the court decide?

Chain documents were to be returned to the applicants; the bank was directed to investigate potential fraud and file a complaint with the investigating officer.

Kailash Chand Sharma versus Bank of Baroda — DRT (2023) — LawSathi Research

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Court of the Presiding Officer Debts Recovery Tribunal- Jaipur

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Item no.

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Case No. SA 437/2022

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VIMLA DEVI SHARMA V/s BANK OF BARODA

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Case No. 438/2022

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KAILASH CHAND SHARMA V/S BANK OF BARODA

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Date: 15.05.2023

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Present:

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Sh. Pramod Kumar, Ld. Counsel for the Applicant in both the SAs

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Sh. Rakesh Choudhary, Ld. Counsel for the Respondent Bank in both the SAs

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Final Order

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These two SA’s are being disposed of by this common order mainly on the ground that the subject property, so mortgaged is situated at “Plot Number 807/1, Khasra Number 310, Ayodhya Nagar, Senthal Road, Revenue Village, Dausa Distt and at Plot Number 807/3, Khasra Number 310, Ayodhya Nagar, Senthal Road, Revenue Village, Dausa Distt.

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As per facts respondent no. 1, issued a Possession Notice, for the property at “Plot no. 807/3” as the borrower and mortgager Mrs. Asha Sharma and Rajendra Sharma committed default and as on 17.05.2022, the bank was to recover an amount of Rs. 22,68,568/-

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For property at Plot No. 807/01, Mrs. Mamta Sharma and Sh. Goverdhan Sharma, borrower and mortgager, committed default and on 17.05.2022, respondent bank

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was to recover an amount of Rs. 24,52,701/- and so issued Possession Notice on 19.05.2022.

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So, for Plot no. 807/01, SA applicant Mrs. Vimla Devi Sharma filed SA no. 437/2022 and for Plot no. 807/03, her husband Mr. Kailash Chand Shama filed SA no. 438/2022.

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In both the SA’s both the SA applicants claims there right over the subject mortgaged property on the basis of Agreement to sale executed on 19.06.2017 and on 21.07.2018. Photocopies of said agreement to sale are filed at Annexure A/1 in both the SA’s. The Agreements are simply notarised and not registered.

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Further both the applicant filed certified copy of chain documents at Annexure A-2 and copies of documents proving residence at the subject properties at Annexure/3 in both the SA.

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So, except documents, so filed at Annexure/1, 2 and 3, there is no other documents, which can prove ownership of SA applicants, on the subject mortgaged property.

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Before deciding the issue of actions taken by Respondent Bank, it is necessary to have a look of documents, so filed by Respondent Bank along with the reply and it is very necessary to understand the relation of borrowers in both the cases and owners of the property who executed agreement to sale on 19.06.2017 and on 21.07.2018 respectively.

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In SA No. 437/2022, Mr. Jagdish Prasad Sharma is Respondent No. 3 and Mrs. Mamta Sharma is wife of Mr. Govardhan Sharma who is son of Mr. Kalyan Sahay Sharma & brother of Mr. Jagdish Prasad Sharma.

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In SA No. 438/2022 Mr. Narendra Kumar Sharma S/o Sh. Jagdish Prasad Sharma is Respondent No. 3

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who executed agreement to sale with Mr. Kailash Chand Sharma and Asha Sharma w/o Mr. Rajendra Sharma is Respondent No. 4.

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In SA no. 437/2022, bank filed copy of Memorandum of Entry dated 15.07.2020 and documents as mentioned in Schedule first is Original Registered Sale Deed dated 13.07.2020 executed in favour of Mrs. Mamta Sharma W/o Goverdhan Sharma for plot no. 807/01, as credit facility of Rs. 2400000/was obtained by Mrs. Mamta Sharma & Mr. Goverdhan Sharma.

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It is important to mention here that Mr. Goverdhan Sharma is real brother of Mr. Jagdish Prasad Sharma who is witness to Agreement to Sale dated 19.06.2017.

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So, it is clear that Mr. Jagdish Prasad Sharma & Sh. Goverdhan Sharma, both the real brother Knowingfully well executed an agreement to sale with Mrs. Vimla Sharma on 19.06.2017 for Plot at 807/01 and after that executed a Registered Sale Deed on 13.07.2020, in favor of wife of Mr. Gordhan Sharma, who obtained credit facility of Rs. 2400000/- and mortgaged the said property.

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Accordingly, entire role was played by Mr. Jagdish Prasad Sharma, his brother Mr. Gordhan Sharma and his wife Mr. Mamta Sharma.

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In SA no. 438/2022, bank filed copy of Memorandum of Entry dated 14.01.2020 and documents as mentioned in Schedule first is Original Registered Sale Deed dated 13.01.2020 executed in favour of Mrs. Asha Sharma W/o Rajendra Kumar Sharma for plot no. 807/02 by Mr. Narendra Kumar Sharma, as credit facility of Rs. 21,50,000/- was obtained by Mrs. Asha Sharma and Mr. Rajendra Kumar Sharma

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It is important to mention here that Mr. Narendra Kumar Sharma, is son of Mr. Jagdish Prasad Sharma and Patta was issued in his favor on 30.03.2016.

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So, it is clear that same Mr. Narenda Kumar Sharma, who executed agreement to sale in favour of SA applicant on 21.07.2018, executed Registered Sale Deed for the same property on 13.01.2020 and in agreement to sale Mr. Jagdish Prasad Sharma, father of Mr. Narendra Kumar Sharma is a witness.

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Accordingly, in this deal also Mr. Jagdish Prasad Sharma played a vital role of fraud.

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so, from the above discussion it is clear that the respondent bank created valid mortgage in both the cases by depositing original title deeds of mortgaged properties and even if the SA applicants are having physical possession, that may either on account of part of criminal conspiracy or on account of cheating committed by family members of seller, who executed Agreement to sale four and five years back.

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In my considered opinion the applicants do not have any right over the subject mortgaged properties merely on the basis of Agreements to Sales.

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Registered Sale Deeds of both the properties were executed on 13.07.2020 and 13.01.2020 and so the bank is not at fault in sanctioning and disbursing the credit facility in favor of borrowers, who in connivance with their family member committed default with an ulterior motive to cause wrongful loss to the bank.

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Original chain documents, so filed by SA applicants in SA no. 437/2022 be returned to SA applicants for doing the needful at per their own level.

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Mr. Jagdish Prasad Sharma, his son Mr. Narendra Kumar Sharma, Mr. Mamta Sharma w/o Mr. Gordhan Sharma and Mrs. Asha Devi have already been prosecuted and are facing criminal actions but Mr. Gordhan Sharma is

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also required to be prosecuted for the same cause and relation of both the SA applicants with their respective respondent is also required to be looked into by investigating officer of FIR no. 231/2020 and so authorized officer of the respondent bank is directed to file a complaint with the investigating officer of FIR no. 231/2020, in the light of above said observations. Investigating officer is at liberty to investigate role played by other persons, who are parties to agreement to sale as well sale deeds in the capacity of witness also.

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All pending IA’s if any stands disposed of as infractuous.

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The Securitization Application being devoid of any merit is dismissed.

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Copy of this order be given free to the parties.

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Put up before 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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Kailash Chand Sharma v. Bank of Baroda

Case brief

What is this about?

What did the court decide?

Kailash Chand Sharma v. Bank of Baroda

Case brief

What is this about?

What did the court decide?

What the court decided

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