Allowed

Indu Choubey v. Aditya Birla Housing Finance Limited and Ors.

DRT4 Nov 2025SA/142/2023

Case brief

AI extract

What is this about?

A single bench of the DRT-III, Kolkata allowed the Sale Certificate Applicant's Special Appeal against the purported order under Section 14 of the SARFAESI Act. The court held that the FI obtained possession of property belonging to the applicant, who was the sole and absolute owner, without lawful authority. The order directing restoration of possession was made.

What did the court decide?

The order dated 25.05.2022 passed by the DM under Section 14 of the SARFAESI Act was set aside and the respondent F.I. was directed to restore physical possession of the property to the SA applicant i

Indu Choubey versus Aditya Birla Housing Finance Limited and Ors. — Property and Title | DRT (2025)

¶1

DEBTS RECOVERY TRIBUNAL-3, KOLKATA Order Sheet (Continuation)

¶2

caseNo.	sA/L42/2023 InduChoubey Ltd.&Ors, Vs,Aditya BirlaHo	usingFinance
Dateof Order Order No.14 Dr.04.11.2025 sL!e. /tsm l	Orderwithsignature Present: -For SAapplicant :LdcounselMr.SamikBasuwith MrSukantachoshandMr.ArghyaChatterjee For RespondentBank :LdcounselMrAvishekGuhawithShreyasiSen Challengeinthe instantSAisagainstthepurported stepsandmeasurestaken bytherespondentNos.1 to4bytakingphysicalpossessionofthepropertyas describedinthescheduleofthepetitionon 04.o7.2023. Theapplicant's casein shortisthat theapplicant hadenteredinto anagreementforsalewith oneMr. Dipankar Mondal, sonoflateSubodhChandraMondal ofNandan Kanan, Benerjee Para, P.O. Raypur,^p.S. Maheshtata,Kolkata-700141,DistrictSouth24 Parganas,forpurchasingthesubject propertybeing "Allthatpieceandparcelofbastu landmeasuring4 cottahs 3chittacks33sq.ftmoreorlesstogetherwith adoublestoriedcementedflooringbuildinghaving coveredarea796sq.ft.moreorlessontheground floorandacoveredarea 602sq.ft.atMouza Raypur, ParganasBalia,J.L.No.15,RevenueSurveyNo.73, Touzi No.65,comprisedindagNo.509,underR.S. khatianNo.309,L.R.KhatianNo.1373,presently withinthelimitsofMaheshtalaMunicipality,Ward No.23,underPoliceStationMaheshtala,Addl.District Sub-registrar offlceatBehalain thedistrictofSouth 24Parganaswithalleasementrights andbenefitsof existing6'widecommonpassageonthewesternside	Officeaction withdate and dated Signatureof parties when necessa

¶3

to the property. " After the said agreement for sale dated 15th July, 2014 applicant completed the conveyance proceedings by entering into a deed of conveyance dated 2gth December, 2016 which was presented before the Additional Sub-registrar, Behala, South 24 parganas for registration and was registered on 16th January, 2017. The applicant has taken peaceful khas possession of the said property and started to live in the said property with her family. All of a sudden, the respondent No.1 to 5 on 04.0L,2023 came to the residence of the applicant and called out applicant to come out from the said property and informed her that the respondent No.1 to 5 will take physical possession of the said property and oust the applicant and her family members from the said property.

¶4

The applicant requested the respondent No.1 to 5 to provide some time but the respondent No.1 to 5 did not pay any attention and ousted the applicant from the said property and took physical possession of the same.

¶5

The applicant was not provided the copy of the inventory, even the respondent No.1 to 5 did not provide the legible copy of the order under Section 14 of the SARFAESI Act by virtue of which the physicat possession of the property was taken. It is alleged that fraud and deep rooted conspiracy was played behind the back of the applicant to oust her from her lawful ownership of the said property. It is alleged that the purported action of the respondent No.1 to 5 to take physical possession of the property is bad in law. It is stated that the applicant has never took loan or mortgaged nor stood as guarantor before any financial institution after purchaslng and taking peaceful khas possession of the same, It is stated that the defendants, acts are wholly without jurisdiction. SA applicant has prayed for quashing and/or setting

¶6

asidethepurportedorder dated t6thAugust,2022
undersection140ftheSARFAESIAct,2002.
Itisalsoprayedthatactionsandstepstakenby
thedefendantsare notmaintainable.Theapplicant
hasalsoprayedforrestorationofthepossessionof
thesecured assettotheapplicantwithimmediate
effect. Byfiling affidavitin opposition,thedefendantshave
allegedthatUrmilalaiswal, AnujJaiswalandM/s.
Swastick Engineering had approachedtherespondent
financial companyforafinancefacilitiesintheformof
homeloanamountingtoRs.30,00,000/-andtopup
loanofRs.1,80,000/-.Theaforementionedamount
proposedtobetaken byUrmila Jaiswal,Anujlaiswat
and M/s.SwastickEngineeringfromtherespondent
finance companybywayofloan application submitted beforetherespondent finance companyon17thluly,
201-7. Theloan wassanctionedinfavourofUrmila
Jaiswal,AnujJaiswaland M/s.SwastickEngineerinq
by therespondentfinancecompanybywayof
sanctionletterdated22ndAugust,2017.
It isstatedthat thefollowingpropertywas
mortgaged-
"Allthatpieceandparcelof4cottacks3chittaks
33sq.ftlandsituatedunderMouzaRaiput, J.L.No.15,
ReSaNo.73,R.S.khatianNo.1373,R.S. Dag No.509,
underMaheshtalaMunicipality,District South24
Parganas,alongwithatwostoried buildingstanding
thereon,theproperty having holdingNo.D-7l119/1,2,
BanerjeeParaRoad,P.S.Maheshtala,Kolkata-
700141, underMaheshtalal4unicipality,wardNo.23,
having cementedfloor,standingthereon, having950
sq.ft.superbuiltup areain thegroundfloor,and720
sq.ftsuperbuilt upareainthe1stfloorhaving
cementedflooring.
Itis statedthatinitiallytheborrower wasmaking
payment regularly butsoonthereafterthepayment of
theapplicantturnedirregularandtheapplicant
starteddefaultinginrepaymentoftheloanfacility

¶7

frequently. Consequenull tire l,lan account was classified and declared as Non performing Assets on 3oth June, 2021. It is stated that the appltcant did not take steps for regularizing their account and as such. respondent finance company was constrained to issue a demand notice under Section 13(2) of the SARFAESI Act, 2OO2 by way of the tetter dated 16th )uty, 2O2t and demanded the outstanding amount of Rs.34,12,158.03p. It is stated that the applicant even after receipt of the demand notice under Section 13(2) of the SARFAESI Act, 2002 did not suppty to the same within 60 days from the date of receipt of the same and failed and/or neglected to pay the amount demanded in the letter dated 16th )uly, 2OZ!, the respondent Rnance company was constrained to take symbolic possession of the mortgaged property on 19th October, 2021. It is stated that the respondent finance company has approached the Ld District Magistrate, South 24 Parganas under Section 14 of the Act and the Ld District Magistrate, South 24^parganas vide an order dated 25th May, 2022 directed the Ld Executive Magistrate to take possession of the said property and hand over the same to the authorized officer of the respondent finance company. It is stated that the appticant had cha enged the possession notice as well as the order passed under Section 14 of the Act by the Ld DM, South 24 Parganas by way of the writ petition being W.p.A. No.1456 of 2023 and the said writ petition was disposed of with a leave to the writ petitioner to move before the Ld DRT by 3.d March, 2OZ3 and the respondent was restrained from taking steps against the petitioner ti 3.d March, 2023. It is stated that the applicant preferred an appeal before the Hon'ble High Court at Calcutta which was numbered as M.A.T. No.371 of 2023 and the said appeal was heard and disposed of when the limited

¶8

protection wasgrantedbytheLearned Singteeencir wasextendedtill7thApril,2023. Itisstatedthatauthorized officer oftherespondent finance companyincomplianceoftheorderdated 25,05.2022passedbytheDM, South24parganas underSection14ofthe Acthad takenphysical possessionofthemortgagedpremiseson19.10.2023. Itisdeniedthat therespondentNo.l to5ousted theapplicantfrom thesubject property andhadtaken physical possessionunlawfully. Itisdeniedthat theapplicantwasnotprovided withthecopyofinventoryor withanylegible copyof order dated 25.05.2022 under Section14of theAct. Itisdeniedthatfraud and deep rootedconspiracy was played behindthebackof theappticanttooust herfromher lawfulownershipof the said property. Itis statedthattheapplicanthasbeenset upby theoriginalborrowerandtheapplicantisnotthe owner ofthemortgaged property. Respondentshaveprayedfordismissalofthe petitionunderdisposal. Decisionwithreasons Thegamutofcontroversyisthatwhetherthe l
mortgage createdbytheborrower, namely,Urmila Jaiswalinrespectofthepropertyinquestionisvalid inlaw? Toputitotherwise whethertheSAapplicanthas beenwronglyandunlawfullydispossessedfromher propedy on04.07.2023bytherespondentF.I.? ItappearsfromthematerialsonrecordthatSA applicant^purchasedthesubject property bydint ofa deedofconveyancedated28.12.2016whichwas presentedforregistration beforetheAdditionalSub- registrar, Behal,South24Parganasandwas registeredon16.01.2017. Scheduleofpropertyaspurchasedby theSA applicantis asfollows:- Allthatpieceandparcelofbastu land measuring4 cottahs 3 chittaks 33sq.ft.moreorlesstogetherwith
adoublestoriedcementedflooringbuildinghaving

protection wasgrantedbytheLearned Singteeencir
wasextendedtill7thApril,2023.
Itisstatedthatauthorized officer oftherespondent
finance companyincomplianceoftheorderdated
25,05.2022passedbytheDM, South24parganas
underSection14ofthe Acthad takenphysical
possessionofthemortgagedpremiseson19.10.2023.
Itisdeniedthat therespondentNo.l to5ousted
theapplicantfrom thesubject property andhadtaken
physical possessionunlawfully.
Itisdeniedthat theapplicantwasnotprovided
withthecopyofinventoryor withanylegible copyof
order dated 25.05.2022 under Section14of theAct.
Itisdeniedthatfraud and deep rootedconspiracy
was played behindthebackof theappticanttooust
herfromher lawfulownershipof the said property.
Itis statedthattheapplicanthasbeenset upby
theoriginalborrowerandtheapplicantisnotthe
owner ofthemortgaged property.
Respondentshaveprayedfordismissalofthe
petitionunderdisposal.
Decisionwithreasons
Thegamutofcontroversyisthatwhetherthe
l

mortgage createdbytheborrower, namely,Urmila
Jaiswalinrespectofthepropertyinquestionisvalid
inlaw?
Toputitotherwise whethertheSAapplicanthas
beenwronglyandunlawfullydispossessedfromher
propedy on04.07.2023bytherespondentF.I.?
ItappearsfromthematerialsonrecordthatSA
applicant^purchasedthesubject property bydint ofa
deedofconveyancedated28.12.2016whichwas
presentedforregistration beforetheAdditionalSub-
registrar, Behal,South24Parganasandwas
registeredon16.01.2017.
Scheduleofpropertyaspurchasedby theSA
applicantis asfollows:-
Allthatpieceandparcelofbastu land measuring4
cottahs 3 chittaks 33sq.ft.moreorlesstogetherwith

adoublestoriedcementedflooringbuildinghaving

¶9

covered area 796 sq. ft, more or less on the^ground floor and a covered area 602 sq.ft. more or less on the flrst floor standing thereon, lylng and situated at Mouza Raypur, Parganas Balia, J.L. N0.15, Revenue Survey No.73, Touzi No.55, comprised in dag No.509, under R.S. khatlan No.309, L.R. Khatian No.1373, presently within the limits of Maheshtala Municipality, Ward No.23, under Police Station Maheshtala, Addl. District Sub-registrar office at Behala in the district of South 24 Parganas with all easement rights and benefits of existing 6' wide common^passage on the western slde to the property. It appears that after^purchasing the said^property from the said Mr. Dipankar Mondal, applicant^got mutated her name before the concerned Bengal Land and Land Reforms office and started to^pay her taxes payable for the said property. Copies of the record of rights and tax receipt as provided by the concerned Bengal Land and Land Reforms office and municipality are enclosed with the SA as annexure "B". It also appears that one Urmila Jaiswal purchased the self same property from the self-same vendor, namely, Dipankar Mondal subsequently by a deed dated 30.08.2017. Copy of the deed being No.I-9109117 is filed on behalf of the respondent F.I. and marked as Annexure "A" in the supplementary affidavit in opposition. It appears that Dipankar Mondal is the common vendor in respect of both the sale. Ld counsel for respondent F.I. has argued that holding number is not appearing in the schedule of the purchased property of the SA applicant but I Rnd that holding No.D5-7/11911,2, Banerjee Para Road, P.S. Mahestala, Kolkda-700141 ls appearing in the municipal tax receipt as filed from the side of the SA applicant. On^perusal of two deeds, it appears that subject property is self-same as it appears from the comparative study of the schedule of the two deeds.

¶10

Moreover,itappearsthatat the time ofsanctioningrcf loantherewas noexistenceof thedeedinthename of borrower.
Loanwassanctionedon22.08.20L7butthe mortgageddeed wasregisteredon30.08.2017. ItappearsthatrespondentF.I.hasnotobtained any reportoftitlei.e.non-encumbraces certificate
fromtheappropriateauthorityinrespectofthe mortgaged property. Novaluation wasalsoconducted bytherespondent F.I.atthetimeofsanctionofloan.Infact,no valuationhas beenobtainedbytherespondentF.I.,so thesanctityofthemortgagecouldnotalsobe ascertained. Onmaterialsonrecorditappearsthatthesaid DipankarMondalsoldandtransferredtheproperty flrstinfavouroftheSAapplicanton28.12.2016and subsequentlysold andtransferredinfavourofone UrmilaJaiswal(borrower)whocreatedmortgage of
theselfsame propertyinfavouroftherespondentF.I. Nootherdocumentslikemutation certificateand I
propertytaxreceiptetc. arealso forthcominginthe nameoftheborrower.Soitisapparentthatthe respondent Nos. 1to5on04.01.2023tookphysical possessionofthepropertybelongingtotheSA applicant beingthesoleandabsoluteownerofthe property,in termsoftheorder under Section14 ofthe SARFAESIAct,2002. ItappearsthatSAapplicanthas been ousted from her lawful ownershipofthesaid^property. PurportedactionoftherespondentNos. 1to5to take physical^possessionofthe^propertyisbad inIaw. ItappearsthatSAapplicant never mortgagedthe subject propertynorstoodas^guarantorbefore^the respondentF.I. after^purchasingand taking^peaceful khas possessioninrespectthereof. Soany^proceedinginitiatedbythe^{respondentF.I.} isnotbindingupontheSAapplicant andis badinlaw. Nonoticeand/orintimationof^{possessionwas ever}
also served upontheSAapplicantwhich^iscontrary

¶11

andin violati	on@
thereunder.Itapp soleandabsolute	earsthat theSAappllcantisthe ownerofthesubjectproperty.
Consequently,the	instantSAmeritssuccessand
deservetobeallow Sarfaesiapplication	ed.Hence, Ordered being S.A.f42/2023isallowedon
contest.Thepur	portedorderdated25.05.2022
passedby theLd	DM, South24parganasunder
Section14ofthe	SARFAESIActfortakingphysical
possessionofthep	ropertyof theSAapplicantisset
aside.Respondent	F.I.isdirectedtorestorethe
physical possession	ofthepropertyto theSAapplicant
withimmediateeff	ect.pendingI.As,ifanyarealso
disposed of accordin	gly.

¶12

PRESIDINGOFFICER
DRT-III,KOLKATA

Indu Choubey v. Aditya Birla Housing Finance Limited and Ors.

Case brief

What is this about?

What did the court decide?

Indu Choubey v. Aditya Birla Housing Finance Limited and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State Bank of India versus M/S Tirupati Assets Pvt. Ltd. and Ors.

Tapas Sadhukhan and Anr. versus Indian Bank

Bank of India versus Siddharta Batabyal and Anr.

Mrs Reshmi Majumder versus LIC Housing Finance Ltd.

Punjab National Bank versus Ms Global Traders and Ors.

State Bank of India versus Subhankar Praharaj and Anr.