Dismissed

Nandakishore Soma Dhavade v. Can Fin Homes Ltd.

DRT22 Feb 2024SA/7/2024

Case brief

AI extract

What is this about?

The District Recovery Tribunal dismissed an interim application seeking an injunction to restrain the respondent from taking possession of a flat. The court held the respondent had a prior charge on the property via an equitable mortgage created on the same date as the applicants' alleged sale deed. The applicants also failed to implead the original vendors. Consequently, no case for interim relie

What did the court decide?

The interim relief application under IA No.3490/2023 seeking a restraining order against the respondent regarding possession is dismissed.

Nandakishore Soma Dhavade versus Can Fin Homes Ltd. — Property and Title | DRT (2024)

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22/02/2024	Ex. No.	Before Presiding Officer Dr. Rekha G. Dhakar, DRT-1, Mumbai. *Roznama in SA No.7/2024* *Nandkishore Soma Dhavade Vs. CAN Fin* *Homes Ltd.*	Next date
		Advocate P. Sharma a/w Vaibhav Kulkarni appeared for the Applicant. Advocate appeared for the Respondent. IA No.3490/2023 1. By way of the present IA, the Applicants prayed to direct the Respondent not to take possession of the Flat SF-1, bearing House No.354, Village Panchayat of Karapur-Sarvan on 02^ndFloor, Om Sai Residency, on Plot No.32 of property surveyed under No.76/2 OF Village Sarvan (“property in question”). 2. Ld. Counsel for the Applicants submits that the Respondent issued possession notice dated 09.02.2024 wherein asked the Applicant to handover physical possession of the property in question by 23.02.2024 thus, the Respondent may be restrained from taking possession of the property in question. 3. He submits that the Applicants are the absolute owners of the property in question and purchased the said property from Bank of India, Bicholim, Goa, during which period Morajkar (the erstwhile owner) gave non-encumbrance certificate to the Applicants, based on which the Applicants secured a loan from

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Bank of India, Bicholim, Goa. He submits that registered sale deed dated 22.11.2013 executed between the erstwhile owners Mr. Vishwanath Vasu Morajkar and his wife Mrs. Vrundali Vishwanath Morajkar and the Applicant and the erstwhile owners put the Applicants in peaceful possession after accepting the sale consideration.

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He also submits that the Applicants are regularly paying property tax of the said flat to the local body as well as paying the electricity bill which stands in the name of the Applicants, however, the Applicants were shocked and surprised when they received demand notice from Respondent No.1 for the outstanding amount from Respondent No.2 & 3 and again shocked on 16.03.2020, when they received the possession notice from Respondent No.1 and accordingly, the Applicant preferred a complaint dated 17.03.2020 against Respondent No.1 at Bicholim Police Station, Goa for falsely claiming of the property in question and also filed a Special Civil Suit No.8/2020/A before the Civil Judge, Senior Division, Bicholim, Goa which was rejected vide order dated 27.10.2023 without according sufficient reasons for the same.

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He submits that the Applicants are the absolute owners of the property in question thus, the Respondent may be restrained from taking

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possession and/or any further action in respect of the property in question. 6. On the other hand, Ld. Counsel for the Respondent strongly objected on the present IA and submits that the Applicants concealed various true and material facts before this Tribunal. He submits that the Applicants did not made the builder and developer as necessary parties in the present SA. 7. He also submits that the property in question was mortgaged with the Respondent No.1 by respondent No.2 & 3 in May, 2013 thus, the Respondent No.1 has the prior charge over the Applicant therefore, the present IA is liable to be dismissed.

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Considered the submissions of both sides and perused the record. 9. Admittedly, the Applicants are claiming their charge on the property in question on the basis of alleged Sale Deed dated 22.11.2013 whereas the Respondent No.1 is claiming its charge on the basis of creation of equitable mortgage on May, 2013 by way of deposit of registered sale deed executed between Mrs. Vrundali Vishwanath Morajkar and Mr. Vishwanath Vasu Morajkar in favour of Respondent No.2. Therefore, the Respondent No.1 has the prior charge on the property in question.

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Further, on perusal of the sale deeds, both the sale deeds were executed by Mrs. Vrundali Vishwanath Morajkar and Shri Vishwanath Vasu Morajkar in respect of the property in questions, however, the Applicants did not made them as a necessary parties in the present SA.

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For the foregoing reasons, I do not find a good case for interim relief, therefore, the present interim relief application is hereby dismissed.

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PO DRT-I

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Nandakishore Soma Dhavade v. Can Fin Homes Ltd.

Case brief

What is this about?

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Nandakishore Soma Dhavade v. Can Fin Homes Ltd.

Case brief

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