Allowed

Tejmal Sancheti v. Indusind Bank Limited

DRT18 Aug 2023SA/685/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal quashed and set aside all actions on the mortgaged property because the claimed security interest was found to be wholly disputed. The bank failed to prove clear ownership or valid mortgage partitions.

What did the court decide?

All actions qua the property in question are quashed and set aside. The Securitization Application is disposed of as allowed with no cost.

Tejmal Sancheti versus Indusind Bank Limited — Property and Title | DRT (2023)

¶1

Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

¶2

¶3

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

¶4

SA No.- 685/2022

¶5

Tejmal Sancheti S/o Sh. Rajmal Sancheti R/o Gandhi Chowk, Ward No. 17, Aasind, Bhilwara.

¶6

.........Applicant

¶7

Versus

¶8

Indusind Bank Limited, Near Tower, Hyatt Regency Complex Block A,

¶9

District Centre, Bhikaji Cama Place, R.K. Puram, New Delhi 110066

¶10

through Authorized officer.

¶11

Sh. Roshan Lal Sancheti S/o Sh. Bheru Lal Sancheti, R/o Plot no. 13,

¶12

Pratika, Milan Talkies Road, Hari Sewa Marg, Bhilwara 311001.

¶13

........Respondents

¶14

Present:-

¶15

Shri Anil Kumar Sharma, Counsel for the applicant

¶16

Shri Vineet Sharma, Counsel for the Respondent Bank/FI

¶17

In this Securitization, the issue involves is with regard to ownership as claimed by the SA applicant in the capacity of one of the Legal heirs and SA applicant admittedly, is neither borrower nor guarantor to credit facilities being sanctioned by respondent bank.

¶18

As per facts of the case, a possession notice (Annexure- 2&3) was issued on 08.08.2022 by the Respondent bank, calling upon the borrowers

¶19

¶20

Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

¶21

¶22

namely Mr. Prateek Sancheti, and Mr. Roshan Lal Sancheti as they after availing credit facility from the respondent bank, committed default, Demand Notice was issued on 09.05.2022 and amount due as on 26.04.2022 was Rs. 98,53,911/-. Description of the mortgaged property is as under:-

¶23

House built up in area measuring 1896.71 Sq. Ft is situated at village Sadar Bazar Asind, Panchayat Samiti, Asind Tehsil, Distt. Bhilwara.

¶24

Sh. Roshan Lal Sancheti is arrayed as Respondent no. 2 but he failed to remain present, to file reply to SA and so, it is clear that he has nothing to say.

¶25

At Annexure-1 of the SA, copy of Civil Suit filed by the SA applicant Mr. Roshan Lal Sancheti, Mrs. Manju Devi and Respondent bank is filed at record and following is family history:-

¶26

TejmalSancheti (Son) Roshan Lal	Raj Mal Sancheti (expired) Bhanwer Lal (Son-expired) Manju Jain	Sunder Bai Gendi Bai (Wife- expired)
(Son)	(Daughter)	(Wife-expired)

¶27

Ld. Counsel for the SA applicant argued that the mortgaged property was owned by late sh. Bhanwer Lal, who expired without execution of Partition Deed of the property and so he is also having part in the said property in the capacity of son, therefore, respondent bank cannot be allowed to proceed ahead for recovery of amount without partition of the subject property.

¶28

During the course of argument Ld. Counsel for the applicant challenged and argued that the respondent bank do not have any document to prove absolute ownership of subject property by borrowers/ defaulter and so

¶29

¶30

Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

¶31

¶32

mortgaged so created is completely illegal, so all actions are required to be quashed and set aside.

¶33

Ld. counsel for the respondent bank strongly objected and argued that the grounds taken by the SA applicant is misuse of process of law as the SA applicant do not have any right over the subject property.

¶34

Ld. counsel for the respondent bank referred “Release Deed” dated 25.01.2008, executed between Smt. Manju Devi Mr. Roshan Lal Sancheti, both Daughter & son of Late Sh. Bhainru Lal Sancheti and Title Search Report dated 09.08.2018 is also filed and as per this Report name of Title holder is mentioned as Sh. Roshan Lal Sancheti andin the light of these documents Ld. counsel for the bank argued that the respondent FI took Legal opinion while creating mortgage of the subject property in the light of above said document and so they are legally entitled to enforce their right over the subject property. Ld. counsel for the respondent FI, prayed to dismiss this SA with heavy cost.

¶35

During the course of argument and IA.no. 1619/2023 was filed on 04.08.2023, as the respondent FI, issued a four weeks advance notice. Heard arguments and perused the record.

¶36

As per record, Possession Notice was issued on 08.08.2022 and prior to it Demand Notice was issued on 09.05.2022 and SA, i.e. 03.11.2022, and so it is clear that since 09.05.2022 till 03.11.2022 respondent FI, failed to take any action for recovery of outstanding amount from the borrowers. Account was declared as NPA on 30.11.2021 and wife, son and Mr. Roshan Lal Sancheti are borrower, guarantor and mortgagor respectively. Respondent FI, filed “Release Deed” dated 25.01.2008, executed by Smt. Manju Devi, who is sister of Mr. Roshal Lal Sancheti and she claims right at “A” part of subject property and has released that part in favor Mr. Roshan Lal Sancheti, but how and who decided Part “A” and Part “B” of said property, is not clear.

¶37

As per Annexure-1 to Demand Notice (page no. 12 of the reply) there are total four properties, but owner of any of the properties, is not mentioned. There are total 20 plots, so claimed as mortgaged, but respondent FI failed to file any document showing ownership of total 20 plots and therefore, it is clear that the respondent FI is bent upon for recovery of

¶38

¶39

Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

¶40

¶41

amount from the subject property only, on which SA applicant claims his right and so ownership is completely disputed.

¶42

The document i.e. Release Deed is filed on record and from details of the subject property, it is nowhere mentioned that if Part “A” or Part “B” was mortgaged because if we see the boundaries, north part of property is claimed as property of Mr. Tejmal Sancheti, the SA applicant but at the Map at page no. 20, it is clear that the property is having two floors and respondent FI, claims security interest only at I^st floor and part of property is simply marked/ included and there is nothing about mortgage of property, so constructed at II^nd floor.

¶43

From perusal of Release Deed, it is not clear that how Mrs. Manju Devi and Mr. Roshan Lal Decided Part “A” and “B” of the subject property and in my considered opinion, the respondent FI, could have filed original/ copy of Bapi Patta no. 11, bearing file no. 42 dated 14.03.2021 because original of it was perused by Advocate Mr. Ramswaroop Asawa who gave opinion on 09.08.2018. Mr. Asawa, while giving opinion, mentioned that sh. Bheru Lal Sancheti died on 19.07.1975, hence, his legal heirs and successors his wife Smt. Sunder Bai, his son Mr. Roshan Lal and his daughter Mr. Manju Devi got possession and so it is clear that the Advocate gave opinion, but remained silent on the fact that how and in which portions property of Mr. Raj Mal, father of Mr. Bhanwer Lalwas distributed in his three children i.e. present SA applicant, Mr. Bhanwer Lal and Smt. Gendi Devi. Original Site Plan (Map) dated 01.04.1981, is also not filed on record and so again it is not clear that how, who and on what basis part “A” and “B” of first floor of mortgaged property was decided. Civil Suit was filed by the present SA applicant for partition and permanent injunction on 29.09.2022, in which the respondent bank is also a respondent claimed his right on subject property, having area admeasuring 1896.71 Sq. ft. and details of possession notice do not claim either “A” part or “B”. In Lease Deed (Annexure R/2) and in site plan (page no. 20) details of area of mortgaged property is not mentioned. As per title Search Report dated 09.08.2018, also the property is claimed as House Built up area admeasuring 1896.71 Sq. Ft. is mentioned and it does not bifurcation Part “A” or “B” of the subject property, so in my considered opinion, if the respondent bank could have collected or placed some more document while creating mortgage, they would have is better position to

¶44

¶45

Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

¶46

¶47

explain their security interest but form the documents, so filed, it is clear that the respondent bank simply relied upon Title & search report dated 09.08.2018 and as the mortgage is found proved so, in my considered opinion, the respondent bank do not have any right to enforce their right over the subject property. Accordingly, all actions qua against the property, in question, stands quashed and set aside.

¶48

It is important to mention here that as per Demand Notice, there are total 35 plots, as detailed at Serial No. 3 of Annexure-A (Page no. 12 of reply) and respondent bank can very well enforce their security interest on those plots instead of claiming their right with is civil litigations and these litigations may increase in future.

¶49

Accordingly, this Securitization Application stands disposed of as allowed with no cost and all pending I.A’s also stands disposed of as infractuous. Copy of the order be given free to the concerned parties.

¶50

File be placed before the Registrar for compliance after compliance file be consigned to record, as per rules.

¶51

(VIVEK SAXENA) Presiding Officer DRT, Jaipur

¶52

Tejmal Sancheti v. Indusind Bank Limited

Case brief

What is this about?

What did the court decide?

Tejmal Sancheti v. Indusind Bank Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Shokat Ali versus Au Small Finance Bank Limited

Jyoti Kanwar versus Vastu Housing Finance Corporation Ltd.

Ms Guru Kripa versus State Bank of India

Ms Umed Fashion versus State Bank of India

Rajbeer Singh versus Paisalo Digital Limited

Patanjali Foods Ltd. versus Invent Asset Securitization Reconstruction Pvt. Ltd.