Dismissed

Shri Bhupendra Singh Tomar v. India Bulls Housing Finance Ltd.

DRT15 May 2023SA/663/2022

Case brief

AI extract

What is this about?

The DRT dismissed a stay application filed by an applicant claiming ownership of the third floor of mortgaged property via an unregistered Agreement to Sale. The court held an Agreement to Sale is insufficient for ownership and noted the applicant admitted being a tenant who provided a No Objection Certificate for the mortgage.

What did the court decide?

Stay application dismissed; Financial Institution at liberty to proceed for recovery of outstanding amount from the entire property.

Shri Bhupendra Singh Tomar versus India Bulls… — Contract and Commercial Disputes | DRT (2023)

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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

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SA No.- 663/2022

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Shri Bhupendra Singh Tomar S/o Sheri Chandraveer Singh Tomar, Resident of 1/15 Sanket Nagar, Housing Boardm Beaar- (District-Ajmer)

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.........Applicant

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Versus

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Indiabulls Housing Finance Ltd. through its Branch Head having office at 1^st floor, Vaishali Complex, Amrapali Circle, Vaishali Nagar, JaipurRajasthan.

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The Authorized officer, Indiabulls housing Finance Ltd. through its Branch Head having office at 1^st Floor, Vaishali Complex, Amrapali Circle, Vaishali Nagar, Jaipur-Rajasthan.

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Sheri Devendra Tolani Son of Sheri Nihalchand Tolani, Prop. Pappu Cycle Company, College Road, Beawar (Ajmer) and Plot no. 44, Gali no. 2, House No. 22, Labour Colony, Tatgarh Road, Beawar (Ajmer) Rajasthan.

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Harsha Tolani @ Harsha Devi wife of Shri Devendra Kumar, Resident of C/o Pappu Cycle Company 6/29, Pratap nagar, College Road, Beawar (Ajmer) And 95, Pratap Nagar Gali No. 03, Ward No. 29, Beawar (Ajmer) and plot no. 44, Gali No. 2, House No. 22, Labour Colony, Tatgarh Road, Beawar (Ajmer) (Rajasthan)

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Shrawan Kumar Tolani Son of Sheri Nihal chand Tolani, Residential of 36, Gali No. 2, Sanjay Nagar, Ward no. 31, Beawar (Ajmer) and C/o S.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Kumar Cycle, Resident of 36/647, Fatehapuiya Doyam, Sanjay Nagar, Ajmer And Plot No. 44, Gali no. 2, House no. 22, Labour Colony, Tatgarh Road, Beawar (Ajmer), Rajasthan.

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Jayendra Kumar Tolani Son of Shir Shrawan Kumar Tolani, Prop. Pappu Cycle Company, College Road, Beawar (Ajmer) And House no. 29, Gali no. 03, Pratap nagar, Beawar (Ajmer) and Pot no. 44, Gali no. 02, House no. 22, Labour Colony, Tatgarh Road, Beawar (Ajmer), Rajasthan and Jamalpura Road, behind Shiv Tample, Beawar (Ajmer).

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Meena @ Meena Tolani Wife of Sheri Shrawan Kumar Tolani, Prop. S. Kumar Cycle store, Resident of House no. 29, Gali no.3, Pratap Nagar, Beawar (Ajmer) And Plot no. 44, Gali No. 2, House no. 22, Labour Colony, Tatgarh Road, Beawar Ajmer, Rajasthan.

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........Respondents

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Present:-

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Sh. R K Salecha, Ld. Counsel for the Applicant Sh. Pramod Kumar, Ld. Counsel for the Respondent no. 1 & 2 None for the Respondent no. 3 to 7

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This SA was filed by SA applicant on 20.10.2022 (in the capacity of purchaser based on Agreement to sale dated 20.01.2016), against the Respondent FI, who took actions as defined under the provisions of SARFAESI Act of 2002 against the borrowers/guarantors i.e. Respondent No. 3 to 7.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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The SA applicant claims that through Agreement to sale dated 20.01.2016, he entered into an agreement to purchase, III floor of the property, which was isutaed at Plot no. 44. Labour Colony, Tatgarh Road, Gali No. Beawar and the area of subject property is admeasuring 1863 Square feet, from Mr. Devendra Tolani, the applicant is running an office as Advocates Chamber, is having separate electricity connection in his name, is having separate entrance to reach at III floor and so the Respondent FI, do not have any right to proceed for taking possession of III floor for recovery of outstanding amount from Mr. Devendra Tolani & four others in the light of Possession Notice dated 25.11.2021.

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As argued by Ld. Counsel for the Respondent FI, the property situated at Plot No. 44 was mortgaged with them by Respondent No. 3 to 7 and as the right over the subject mortgaged property from land to limit of the sky was transferred, so the SA applicant do not have any right over the subject mortgaged property, even on the basis of an Agreement to sale. Ld. Counsel for the Respondent FI also referred letter dated 24.06.2016 given by SA applicant in the capacity of Lessee/ Licensee, which was given as “No Objection Certificate” to mortgage that has been created in favour of the IHFL.

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So, before proceedings ahead, it is necessary to decide the area of property, so mortgaged with the Respondent FI, by the borrowers.

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As per copy of Registered Sale Deed dated 19.02.2013, Mr. Devendra Tolani & Mr. Shravan Kumar Tolani, purchased the property as described at page no. 6 & 9 of sale deed and said description is reproduced here as under for ready reference:-

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44 . 02 . . 22 207 . 09.10.1991 . . . " इ उ . 1 . 1315 . 1866 130 . 12.11.1991

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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इ उ उ , , . 22 ( उ . 17.03.2004 ए ) . 22 . 22 207

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So, it is clear that the subject mortgaged property was sold out by its owner, in favour of Respondent no. 3 and 5 and they purchased the property with right from bottom up to open sky.

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Later on, on 24.06.2016, Respondent No. 3 to 7, obtained credit facility from Respondent No. 1 and 2, executed an Agreement of Loan, the property in question i.e. Plot No. 44, Gali No. 22, House No. 22, Labour Colony, Tatgarh Road, Beawar, Ajmer was mortgaged by them. As Respondent No. 3 to 7 committed default, so Respondent FI, started proceedings for recovery of outstanding amount and took physical possession of entire property.

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The SA applicant claims his right at 3rd floor of the subject mortgaged property as owner on the basis of Agreement to Sale dated 20.01.2016.

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As per reply filed by Respondent No. 5, 6 & 7, the Agreement to Sale dated 20.01.2016, is a forged & fabricated document, it is not registered, it is not admissible as per provisions of SARFAESI Act of 2002 and moreover Said agreement was valid for six months only and so as of now void.

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Now, copy of letter dated 24.06.2016 requires, consideration as the present applicant claims himself as Tenant at the subject property and gave NOC to mortgage and further admitted that he do not have any charge over the said property.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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For ready reference copy of letter dated 24.06.2016 (Annexure R/3) is

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copied/ scanned here as under for ready reference:-

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After filing reply to the SA, applicant filed rejoinder on 24.11.2022 and in Para 5.1.3, took plea which is not clear and is reproduce here as under:-

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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5.1.3 That the Respondent FI has deliberately concealed the factum about the documentary evidence about purported creation of the mortgage in respect of third based on R/2 coupled with Non-Entrance title clearance Report rendered by its Advocate, Valuation Report of the Valuer, declaration etc. having been obtained from the mortgagors and in absence of it is estopped from assisting the purported Security Interest having been created relatable to the said property of the SA Applicant. it was under obligation to ascertain the position of possession of the various parts in the subject plot of land and it would have been very well revealed that in the third floor in the said are which obviously enough does not form the part of the described immovable property in the order dated 1.4.2021 passed by Ld District Collector and Magistrate, Ajmer, the Possession Notice dated 25 11 2021 as well as various auction notice and hence any interpretation on any ground that the R-3 related to the subject property is frivolous and baseless.

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It is further stated that the Respondent Bank while granting big ticket finance is under avowed obligation to ensure the report about lille clearance which is supposed to contain the details which is supposed to have the actual inspection carried out by the concerned official, architect/valuer, is to have the possessory status established and in case of failure of the Respondent Ft. it is liable and responsible for consequences arising out of the same It is stated that since the issue relating to the authenticity of the agreement for sale dated 20 1 2016 In view of the insertion of the reverse part of stamp No AC498934 having been left out, the certified copy of the said agreement for sale dated 20 1.2016 obtained from the Ld ADJ-1, Beawar where original is filed in connection with "Suit for Specific Performance has been annexed marked as Annexure A-1A and to be read during the course of these proceedings in substitution of the same is being filed herewith marked as Annexure A1A. Thus, the manner in which the craving for dismissal of SA with exemplary cost is made by the Respondent FI deserves to be dismissed.

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So, on the basis of “agreement to Sale dated 20.01.2016 SA applicant claims himself as owner of IIIrd floor at subject mortgaged property but on the basis of letter dated 24.06.2016 (Annexure R/3) applicant is “Tenant” and in rejoinder to reply, no such clarification with regard to letter dated 24.06.2016 is given. If the status of SA applicant is to be ascertain, the same is now doubtful because as per agreement to Sale, the applicant

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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claims himself as owner since 20.01.2016 whereas as per letter dated 24.06.2016, he is Tenant.

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Accordingly, SA filed by SA applicant is dismissed on the following grounds:-

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The SA applicant do not have any right at 3^rd floor at mortgaged property, because merely “Agreement to Sale” is not sufficient to hold that the applicant is owner of 3^rd floor.

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The letter dated 24.06.2016 (Annexure R/3) is clear to show that the applicant was a Tenant and in rejoinder to reply, applicant failed to give any admissible/ legally sustainable explanation, with regard to owner or tenant. Further “no objection to mortgage” the property was also given, so now the bank, do have every right to recover the outstanding amount from the entire property.

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As pointed out by Ld. Counsel for the respondent FI the applicant including others in the capacity of advocates created, different type of hurdles and so they are not in position to execute their security right.

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Accordingly, as the SA is being devoid of any merit, so stands disposed of as dismissed. Respondent FI, is now at liberty to proceed for recovery of outstanding amount.

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Copy of the order be given free to the concerned parties.

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File be placed before the 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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Shri Bhupendra Singh Tomar v. India Bulls Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

Shri Bhupendra Singh Tomar v. India Bulls Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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