Dismissed

Mr Paresh Shamaldas Dani v. Punjab National Bank

DRT15 May 2024SA/95/2024

Case brief

AI extract

What is this about?

Applicants sought to restrain a secured creditor from taking possession of a mortgaged flat. The Tribunal found the applicants failed to establish lawful possession and that the authorized officer acted within rules under the SARFAESI Act, dismissing the application.

What did the court decide?

Application to restrain the secured creditor from taking possession of the mortgaged flat dismissed with no order as to costs.

Mr Paresh Shamaldas Dani versus Punjab National Bank — DRT (2024) — LawSathi Research

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Presented on : 18.03.2024 Registered on : 19.03.2024 Decided on : 15.05.2024 Duration : Y M D 00 01 27

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IN THE DEBTS RECOVERY TRIBUNAL No.2, MUMBAI

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SECURITISATION APPLICATION NO.95 OF 2024

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Mr Paresh Shamaldas Dani, Aged 55 years, Occ: - Self-employed, Flat No.304, 3^rd Floor, B-Wing, Vanita Niketan CHS Ltd., Opp. Diamond Cinema, L.T. Road, Borivali West, Mumbai – 400 092.

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Mrs Bhavini Paresh Dani, Aged 49 years, Occ: - Self-employed, Flat No.304, 3^rd Floor, B-Wing, Vanita Niketan CHS Ltd., Opp. Diamond Cinema, L.T. Road, Borivali West, Mumbai – 400 092.

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… Applicants

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Versus

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Punjab National Bank, A Body Constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act V of 1970, Having its Branch Office at 67, Mumbai – 400001 and also having one of its Circle Sastra Centre, Mumbai City, 181-A1, 18^th Floor, E Wing, Maker Tower, Cuffe Parade, Mumbai – 400005. (Transferee Bank of Oriental Bank of Commerce as per notification bearing No.G.S.R. 153 (E) dated 04.03.2020) Through its Authorized Officer.

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Mr Nilesh Jayantilal Amreliya, Aged:Not Known, Years, Occ:Business, Residing at 122, 1^st Floor, Raj Arcade CHS Ltd, Mahavir Nagar, Kandivali (West), Mumbai 400 067

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Mrs Anjali Vrilal Shah, Aged:- Not Known, Years, Occ:- Not Known, Residing at 122, 1^st Floor, Raj Arcade CHS Ltd, Mahavir Nagar, Kandivali (West), Mumbai 400 067 …Defendants

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APPEARANCES
For the Applicants	: Mr Rohan U. Korde and Mr Mukesh Mishra – Advocates
For Defendant No.1	: Mr Bhavesh Poojary i/b M/s. MDP & Partners – Advocates
	Ms Aparajita Das – Bank Officer
For Defendant Nos.2 and 3	: Mr Nikhil Seth and Mr Umesh Sonkar – Advocates

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Shri Deepak M Thakkar Presiding Officer

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HEARING : 15^th May 2024. PRONOUNCEMENT : 15^th May 2024.

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J U D G M E N T

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(1) The applicants approached the Tribunal to prohibit the 1^st defendant (secured creditor) from

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Page 2 of 8

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taking the physical possession of flat no.304, B- Wing, Vanita CHS Ltd., CTS No.705, Opp. Diamond Cinema, L.T. Road, Borivali (West) Mumbai – 400 092 (for short, ‘the secured assets’).

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(2) It is the applicants’ case that on 12^th August 2018, defendants 2 and 3 (the borrowers) entered into an MoU to sell the subject flat. On 19^th October 2018, the applicants claim to have entered into an agreement with defendants 2 and 3. However, the instrument on record shows that defendants 2 and 3 did not sign or execute the sale agreement.

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(3) The applicants filed Bombay City Civil Suit No.2033 of 2019 seeking relief under Order 39 of the Code of Civil Procedure against defendants 2 and 3. The applicants state that they procured leave under Order 2 Rule 2 to file a suit for specific performance against defendants 2 and 3. However, as of date, the applicants did not file suit for specific performance.

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(4) The applicants request the Tribunal to protect the interest as they made substantial payment to defendants 2 and 2 who denied executing the agreement.

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(5) The secured creditor’s counsel opposed the grant of any relief and raised issue on maintainability of

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the Securitisation Application. According to the 1^st defendant, the Securitisation Application in its present form is not maintainable and must be dismissed at this stage. The learned counsel submits that the applicants were aware of the authorized officer taking symbolic possession of the secured asset on 6^th January 2022. The applicants took forceable possession from the borrowers’ licensee. The MoU relied by the applicants is different. However, defendants 2 and 3 terminated the MoU in 2018. Mr Poojary drew the Tribunal’s attention to page 36 of the reply affidavit (exhibit-9) to show that the applicants’ possession is illegal. Paragraphs 1 to 5 of the Society’s letter dated 5^th September 2020 addressed to the Borivali Police Station are relevant to adjudicate the dispute reproduced below:

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1. That on 26/08/2020 at around 11.30 PM, there was a great chaos in the Society and we ran down as to what is happening. We came to know that a big crowd has come to flat no.B/304 in our Building. There were also 7-8 females amongst them. They were shouting and were conducting activities of suspicious nature.

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2. Since we were not known to them and they had not visited our Society any time earlier, we inquired with the Watchman, whether they made any entries in the Register maintained by the Society for the Visitors. The Watchman informed that he asked them to make entries, however, they refused to make any entries and

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since they were more in numbers they forcible entered the Society premises inspite of stopping them.

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3. Thereafter, there was a great noise from the flat no.B/304. We contacted the owner of the said flat Mr Nilesh Amreliya, who had given this premises on Leave and License to one Smt. Sobhana Dhrona. The Owner informed us that the GANG making commotion in our building were hired goons of some Mr Paresh Dani. Thereafter we went to the Borivali Police Station and lodged an F.I.R. against them.

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4. Thus, since 26/08/2020, about 10-12 unknown, unidentified people male and female are inducted in the flat no.B/304, without any information or permission of the Society This is a clear Criminal Tresspass in the premises of the Society.

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5. In the circumstances there is a great atmosphere of terror in out Society as these persons are of suspicious nature, have created a great nuisance to the other residents of the Society. We also apprehend further unlawful incident in our Society and the safety of all the residents in our building is at stake. To prevent any further illegal activities and incident, we require you to call the inducted people in flat No.B/304 in our building and ask them to leave our building premises immediately. We require you to inquire into the matter and intervene immediately in order to maintain law, order and peace in our Society.

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(6) Mr Poojary further submits that the authorized officer conducted the e-auction on (i) 18^th February 2022, (ii) 29^th December 2022 and (iii) 3^rd January 2023 all three e-auctions failed for want of bids. The applicants neither challenged the measure of taking the symbolic possession nor the three auctions. The applicants approached the

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Tribunal only when the advocate commissioner issued notice to take the physical possession. The learned counsel drew the Tribunal’s attention to the final relief in the Securitisation Application to state that the relief in terms of prayer clause 8(a) became infructuous as the advocate commissioner did not take possession as informed to the authorized officer. As far as the relief in terms of prayer clause 8(b) is concerned, the applicants as a third party have no locus to challenge the 13(2) notice. The relief in terms of prayer clause 8(c) is time-barred as the 1^st defendant’s authorized officer took symbolic possession on 6^th January 2022. The learned counsel requests the Tribunal to dismiss the Securitisation Application.

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(7) The borrowers’ counsel also opposed the grant of any relief and requested the Tribunal to dismiss the Securitisation Application stating that the applicants have no locus standi as the borrowers terminated the MoU and there is no contract to sell the mortgaged flat to the applicants. The entry of the applicants in the mortgaged premises is unlawful.

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(8) In rejoinder, the applicants’ counsel drew the Tribunal’s attention to page no.131 of the paper book which shows the settlement between the borrowers’ licensee and the applicants before the

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Metropolitan Magistrate Court.

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(9) Heard the learned counsel for the parties.

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(10) The applicants claim to be a bonafide purchaser for value without notice. Ex-facie, the applicants failed to establish the lawful entry in the secured assets. The letter dated 13^th October 2023 addressed by the applicants clearly reveals that they were not put in possession by defendants 2 and 3 as per the MoU or the unregistered and unexecuted agreement dated 19^th October 2018. Paragraph 5 of the letter dated 13^th October 2023 shows that the applicants attempted to advance the theory of lawful possession handed over by defendants 2 and 3 on 24^th /25^th August 2020 during the pendency of Bombay City Civil Suit No.2033 of 2019. However, the applicants failed to establish or produce any evidence of defendants 2 and 3 handing over the possession of the secured assets. The applicants solely relied upon the light bills and gas bills. The applicants failed to show that the Society allowed them to reside in the mortgaged flat with its prior written permission. In paragraph 4 of the Society’s letter dated 5^th September 2020, the Society refers to the “Criminal Trespass” in the Society’s premises by the applicants.

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(11) The applicants sought the Tribunal’s permission

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to allow them to participate in the future e- auctions that may be conducted by the 1^st defendant. The applicants do not require any permission in this regard and may participate in the e-auction as maybe legally advised.

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(12) After examining the facts and circumstances of the case and the material placed, the Tribunal concludes that the measures taken by the authorized officer under the SARFAESI Act are as per the Rules.

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(13) Hence, the following order:

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ORDER

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(A) Securitisation Application No.95 of 2024 stands dismissed with no order as to costs.

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(B) Pending Interlocutory Applications stand disposed of.

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Sd/-

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(Deepak M. Thakkar) Presiding Officer, DRT-2, Mumbai

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Nidhi

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Mr Paresh Shamaldas Dani v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

Mr Paresh Shamaldas Dani v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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