Partly allowed

Sandeep Jhanwar v. Reliagre Housing Development Finance Corporation Limited

DRT7 Jun 2023SA/605/2022

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal quashed the Special Appeal of Sandeep Jhanwar regarding a flat mortgaged before his registered sale deed and dismissed his co-appellant's appeal for lacking proof of ownership via a notarized document alone.

What did the court decide?

The Special Appeal filed by Sandeep Jhanwar is quashed; the Special Appeal filed by Dr. Farah Khan is dismissed.

Sandeep Jhanwar versus Reliagre Housing Development Finance… — Property and Title | DRT (2023)

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SA No. 605/2022

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

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SA No. 605/2022

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Sandeep Jhanwar S/o Shri Chiranji Lal Jhanwar, aged about 45 years residing at House No. A-07, New Light Colony, Tonk Road Jaipur-302018.

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Dr. Farah Khan D/o Md. Ali, aged 35 years residing at D-510. Adarsh Nagar, Krishna Colony, Ward No. 19, Tehsil Tonk. District Tonk.

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..Applicants

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V/s.

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Religare Housing Development Finance Corporation Limited, having its registered office at First Floor, P 14. 45/90 P-Block, Connaught Place, New Delhi-110001, New Delhi, Central Delhi, DL 110001 IN, India and having branch office at 9th Floor Paras Twin Towers, Tower-B Sector-54, Golf Course Road, Gurgaon-122002 and Also at K-14. 7th Floor Ashok Marg, C Scheme, Jaipur, Rajasthan-302001, through Its Authorized Officer.

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M/s Guru Pragya Infra Private Limited, having its registered office at Flat No. 102, First Floor, Gurupragya Sumeru, P.No.7, Green Triveni, Nindar, Near Sun City, Sikar Road, Jaipur Jaipur RJ 302013 IN.

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Shri Subhash Chand Saini S/o Shri Tejmal Saini, Director M/s Gurupragya Infra Pvt. Ltd., R/o Number37, Guru Pragya Chankaya Marg, Nirman Nagar, B. Jaipur, Rajasthan-302019 also at Plot No. 2, Village Nanakpura, Alias Hema Ki Nagal, Sanganer Distt. Jaipur, Rajasthan- 302022, Gurusikhar-Tonk Road, Jaipur, Rajasthan.[Guarantor]

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Mr. Shankar Dutt Pathak, R/o CH-56, Housing Board. Shastri Nagar, Jaipur, Rajasthan -302016 and also at Plot No. 2, Village Nanakpura, Alias Hema Ki Nagal, Sanganer Distt. Jaipur, Rajasthan-302022, GurusikharTonk Road, Jaipur, Rajasthan, Guarantor

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...Respondents/Defendants

Present:

Sh. Yash Sharma, Ld. Counsel for the Applicant

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Sh. Manu Bansal, Ld. Counsel for the Respondent Bank/FI

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Sh. Raghav Sharma, Ld. Counsel for the Respondent No. 2 & 3

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(Final Order)

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(07.06.2023)

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This SA was filed by two SA applicants namely Mr. Sandeep Jhanwar and Dr. Farah Khan being aggrieved by the actions initiated by Respondent FI and M/s Guru Pragya Infra Private Limited through its directors and power of attorney holder as Respondent no. 2, 3 and 4.

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Both the SA applicants are third parties as they are neither borrower nor guarantor to the credit facilities sanctioned by Respondent no. 1 as loan was sanctioned in favour of Respondent No. 2, 3 & 4.

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Both the SA applicants claimed their right over flat no. A-902 and G-404 situated at Gurushikhar, Shivdaspura, Sanganer, Jaipur on the basis of agreement to sale dated 06.07.2011, which is in the name of Smt. Sonu Jhanwar wife of SA applicant and Registered sale deed dated 29.01.2016 executed in favour of SA applicant no. 1 for flat no. A-902, SA applicant no. 2 claims her right over the Flat no. F-404 on the basis of agreement to sale dated 30.07.2014.

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Both the above said agreement to sale/ sale deed were got registered by M/s Guru Pragya Infra Private Limited, who is Respondent no. 2 and they have availed credit facility from Respondent no. 1.

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The SA applicant is aggrieved by possession notice dated 26.07.2022 (Annexure 10) as Respondent FI affixed the said possession notice at the subject mortgaged property, whereas these two flats are also situated and Ld. Counsel appearing on behalf of both the applicants submitted that the SA applicants are owner of the said flats on the basis of

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agreement to sale/ sale deed and therefore the Respondent FI do not have any right to initiate proceedings against the Respondent No. 2, 3 and 4 and he also submitted that mortgage was created illegally and therefore Ld. Counsel for both the applicants argued that the SA is required to be allowed and all the actions initiated by the Respondent bank are required to be quashed and set aside.

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Reply to SA was filed and matter was heard finally.

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Before proceeding ahead into the merits of the case as objected by Ld. Counsel for the Respondent FI and as primary objections taken by the Respondent FI in their reply dated 06.12.2022, objections are required to be considered.

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It is an admitted fact that Respondent no. 1, Religare Housing Development Finance Corporation is a registered finance company and it has sanctioned credit facility in favour of Respondent no. 2, through its directors, Respondent no. 3 and 4 for an amount of Rs. 10.00 Crore vide sanction letter dated 04.09.2014 and total 68 units/flats at its project (Gurushikar, Jaipur) were mortgaged with the Respondent FI.

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CERSAI charges were created and as Respondent no. 2 failed to maintain the account regularly, their account was declared as NPA on 31.05.2017.

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Copies of loan application form, sanction letter, loan documents, title deeds and CERSAI registration certificate are filed at Annexure R/2.

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As rightly pointed out by Ld. Counsel for the Respondent FI the SA applicant no. 1 Mr. Sandeep Jhanwar claimes his right over the flat no. A-902 on the basis of sale deed dated 29.01.2016, whereas Smt. Sonu Jhanwar wife of Sh. Sandeep Jhanwar got executed the agreement to sale for the same flat on 06.07.2011 and said agreement to sale is simply a notarized document, so the applicant do not have any right to challenge the actions taken by them.

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This registered sale deed was executed by Mr. Sandeep Jhawar, Flat no. A-902 whereas the credit facility was

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sanctioned by Respondent FI in favour of Respondent no. 2 for entire project including this flat also on 04.09.2014 therefore right of ownership as claimed by SA applicant no. 1 is not legally sustainable because the subject unit including flat no. A-902 was mortgaged with the Respondent FI on 04.09.2014 by Respondent no. 2, 3 and 4 and applicant without taking any kind of due diligence got executed the registered sale deed on 29.01.2016, therefore right of SA applicant is not legally sustainable.

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Ld. Counsel for the Respondent FI referred reply filed by them on 23.03.2023, through which they have enclosed the copy of share holding status (as on 30.09.2016) as per Annual Return in financial year 12-13 and he argued that Mr. Sandeep Jhanwar, who is appearing at Serial No. 6 is one of share holder of Respondent no. 2, having 10% of the share in the firm, Respondent No. 2 and so he was very well aware with the fact that entire project is mortgaged with the respondent FI, but he with an intention to cause wrongful loss to the Respondent FI through execution of the registered sale deed in the year 2016, and Ld. Counsel for the Respondent FI further argued that here this is not a case where the SA applicant being third person was not having any kind of knowledge with regard to mortgage on entire project with the Respondent FI and so he argued that the SA applicant has approached to this Tribunal with concealment of facts and so this SA is required to be dismissed with heavy cost.

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I have perused the Reply to IA No. 399/2023, filed by the Respondent Bank on 23.03.2023 and along with copy of share holding status is also filed, which clearly shows that Mr. Sandeep Jhanwar, SA applicant no. 1 is appearing at sr. no. 6 and so in my considered opinion the fact of mortgage of entire project including flat no. A-902, was very well within the knowledge of SA applicant but, he in connivance with Respondent no. 2,3 and 4 got executed registered sale deed in the year 2016, obtained credit facility from other banks and now one of the bank is struggling for recovery of the

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outstanding amount, as stated by Ld. Counsel for the Respondent Bank during the course of final arguments.

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Considering the bare fact, that the SA applicant claims his right over the subject flat i.e. A-902 on the basis of registered sale deed, which was executed after creation of mortgage of entire housing project including the present flat, SA applicant do not have any right to challenge any of the actions initiated by the Respondent FI and therefore SA filed by him is required to be quashed and set aside.

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The SA filed by applicant no. 2 Dr. Farah Khan who claims her right over flat no. G-404, the SA applicant no. 2 have simply filed Agreement to Sale executed on 30.07.2014 that too only on the basis of an amount of Rs. 1.00 Lac deposited in cash and further failed to file any documents to show that she is rightful owner of the flat at G-404.

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Sale deed is simply notarized document which do not at all confirms any right over the subject flat (G-404) under any provision of Transfer of Property Act, therefore SA filed by SA applicant no. 2 is not maintainable, and so stands dismissed.

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SA stands disposed of as dismissed and Respondent FI is at liberty to proceed ahead as per law.

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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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Sandeep Jhanwar v. Reliagre Housing Development Finance Corporation Limited

Case brief

What is this about?

What did the court decide?

Sandeep Jhanwar v. Reliagre Housing Development Finance Corporation Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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