Partly allowed

Ashok Singh v. Tata Capital and Housing Finance Ltd.

DRT19 Jun 2025SA/75/2023

Case brief

AI extract

What is this about?

Applicant sought to set aside a bank auction alleging procedural violations and lack of CERSAI registration. Tribunal quashed auction and settlement due to unregistered charge, directed restitution of deposit with interest, and ordered deviation from the provisional settlement.

What did the court decide?

Auction sold under SARFAESI set aside; ₹3,00,10,000 returned to purchaser with 6% interest; Applicant directed to pay outstanding dues.

Ashok Singh versus Tata Capital and Housing Finance Ltd. — Banking and Recovery | DRT (2025)

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING OFFICER: SH. VIMAL GUPTA

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SA No.- 75/2023

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Order Reserved on 26.05.2025.

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Order Pronounced on 19.06.2025.

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Ashok Singh, Authorized Singatory, F.S. Housing Pvt. Ltd. (Formerly Known as M/s Shree Shyam Kripa Landmart Private Limited), having its registered office at Plot no. A-4, Airport Enclave Scheme, Durgapura, Tonk Road, Jaipur (Rajasthan).

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………Applicant

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Versus

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1. TATA CAPITAL AND HOUSING FINANCE LTD. having its Registered Office At- 11^th Floor Tower A peninsula Business Park Ganpatrao Kadam Marg Lower Parel Mumbai 400310 and Branch office at Ground Floor, the Guman-1, Amrapali Circle, Vaishali Nagar, Jaipur (Rajasthan) through its authorized officer.

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2. Ankit Khandelwal son of Mr. Suresh Chand Khandelwal Aged about 30 years R/o 202, Shivam Apartment, Central Spine, Vidhyadhar Nagar, Jaipur (Rajasthan)

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3. Anand Jain son of Shri Ladu Ram Jain, aged 62 years, R/o 117/692, Agarwal Farm, Mansarover, Jaipur – 302020, Rajasthan.

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..….. Respondents

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Counsels:-

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Shri Bhrigu Sharma, Counsel for the Applicant

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Shri Pramod Kumar, Counsel for the Respondent No.1 None for the Respondent No. 2

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Shri Kirti Kapoor, Counsel for the Respondent No. 3

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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(Final Order) (19.06.2025)

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This Securitization Application was filed by the applicant on 27.01.2023 being aggrieved by the actions initiated by the Respondent FI. Vide order dated 31.10.2023 this Securitization Application was disposed of.

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On 21.03.2024 the applicant has filed Misc. Application for restoration of the Securitization on the ground that this SA was disposed of on the certain conditions in which one the conditions was that if the account did not get settle the SA may be revived. Misc. application was allowed vide order dated 22.04.2025 and SA revived on this original number.

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Counsel for the applicant submits that the auction is liable to be set aside for several reasons, including procedural non-compliance with the Security Interest (Enforcement) Rules, 2002, the Bank's acquiescence and subsequent deviation from a confirmed settlement , and the disregard of a prior court directive.

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It is further submitted that Rule 8(6) mandates that the authorized officer must serve the borrower a 30-day notice for the sale of immovable secured assets. Rule 9(1) further stipulates that the sale cannot take place before the expiry of 30 days from the date of public notice publication or service of notice to the borrower in case of first auction and for successive auction 15 day's notice which will come after 30 days redemption notice under rule 8(6), but the respondent bank was issued auction notice on 14.05.2024 and the auction was scheduled on

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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30.05.2024, which is less than the mandatory 15-day period. While the Bank submits that auction was valid, but there is no clear 30 days Rule 8(6) notice and no valid 15-days’ notice in terms of Rule 9(1) as there is no service or affixation. Thus, non-compliance of Rule 8(6) and Rule 9(1) renders the auction sale invalid.

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It is submitted that the auction notice dated 14.05.2024 was never served on him nor affixed on the subject property as proper service and affixation are crucial aspects of the auction procedure under the rules.

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The SA Applicant argues that the publication in "Seema Sandesh" newspaper is inadequate due to its "minuscule circulation in Jaipur". Rule 8(6) requires publication in two leading newspapers, one in vernacular language, having "sufficient circulation in the locality" or "wide circulation" to ensure adequate publicity. The purpose of such publication is to attract the best price. Courts have set aside sales where there was insufficient or improper publicity, such as a vernacular newspaper publishing the notice in English or where it lacked wide circulation.

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It is submitted that as per Rule 8(6)(a) mandates, the sale notice must include "the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor". The SA Applicant alleges that the Bank deliberately concealed the fact of ongoing court proceedings (SA No. 75/2023 and MA/42/2024) and other encumbrances in the auction notice. This non-disclosure of known encumbrances is a violation of the rule and could mislead potential bidders.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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It is submitted that the Bank issued a composite auction notice for more than eight loan accounts, which is illegal.

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It is further submitted that the valuation report is botched up and is said to be given by one BG Associates and therein the visit is stated to be made by one Ishab Khan wherein Valuer name in end is stated to be Navin Kumar Gandhi and there is no mention w.r.t. the fact that he is registered and approved valuer and there is no registration details. Further, there is a remark that - "On agency request we have seen the property from outside only, valuation is based on best judgment method. The above value given by us is only indicative. All the required data has been considered from the old valuation report. Even the value of property is taken almost same as to last valuation which is of year 2018. Further, this Tribunal in the matter of SA/398/2022 doubted the validity of report submitted by Valuer NK Gandhi and rejected the valuation on the basis of similar facts & circumstances.

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10.It is submitted that the Bank has failed to show any documents wherein they demanded entry in property and refused by the SA Applicant which prevented them from valuation or affixation. Further, the purported possession is no where stated to be taken by the Bank in pursuance of Section 14 order or under police assistance.

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11.It is submitted that with consent of Bank, the bank was party to the DRT order dated 31.10.2023, which formalized the OTS settlement with the SA Applicant and specified the release of title documents to him. The SA

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Applicant subsequently deposited Rs. 55 Lacs as agreed. By agreeing to this order, the Bank demonstrated its acceptance of the SA Applicant's standing in the matter and the terms of the settlement.

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It is submitted that the Bank is estopped from re-agitating issues of maintainability or the SA Applicant's rights, as these matters were settled and attained finality through 31.10.2023 order . This implies acquiescence and waiver by the Bank of any prior objections. The principle of acquiescence can "virtually destroy the right of the person".

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The counsel for the applicant further submits that the Bank subsequent forfeiture of the deposited amount and refusal to release documents, despite the SA Applicant ready to pay the balance, goes against this established understanding and the spirit of the court's order. The doctrine of equitable estoppel bars a party from complaining of a violation when their conduct has put the other party at a disadvantage. The Bank's actions, after accepting partial payment and an agreed settlement, may be seen as disingenuous.

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Counsel for the applicant submits that the respondent bank violates the order dated 31.01.2023 in which the bank was directed to provide 4 weeks' advance notice to the SA Applicant before taking any coercive action regarding the mortgaged property. This interim order revived automatically when SA No. 75/2023 was restored by the MA/42/2024 order on 22.04.2024. It is a settled legal position that when a suit or petition is restored, all

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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previous proceedings and interim orders automatically revive and do not require a fresh order. Despite this, the Bank conducted the auction on 30.05.2024, which falls within the 4-week period from the SA's restoration (22.04.2024), and without providing the mandated notice. This direct violation of a court order is a strong ground for setting aside the auction.

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15.It is submitted that in the MA/42/2024 proceedings (which led to the SA's restoration on 22.04.2024), the SA Applicant clearly expressed his readiness and willingness to deposit the balance Rs. 1.20 Cr. of the OTS amount, plus interest. This offer was made before the auction on 30.05.2024. The SA Applicant alleges that the Bank proceeded with the auction in a "malafide and vindictive manner" at a "throw away price," in collusion with the borrower, and despite the SA Applicant's willingness to settle. The SA Applicant states that the Bank concealed the auction fact from him and made false statements.

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It is submitted that the Bank claims to have physical possession of the property whereas the Bank state in its reply that the SA Applicant (builder) is not permitting them to access it. Thus, the bank never had possession and there is no substance in their allegation of trespass and by filing IA the SA Applicant herein in the year 2023 seeking appointment of court commissioner and bank did not accepted the same and later on when court commissioner was appointed it was verified that Bank is not in possession while in the impugned possession notice they state that the status of property is physical

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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possession whereas even the auction purchaser has not visited the property as it is admitted position during arguments and also valuation report verify the said fact. Further, the auction was stated to be conducted for an amount of Rs. 3,00,10,000/- whereas only an amount of Rs. 2,97,09,900/- was deposited and thus, in absence of deposit of entire sale consideration amount, the sale is liable to be set-aside.

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Finally, the counsel for the applicant submitted that the Securitization Application deserves to be allowed, and the auction conducted by the Bank on 30.05.2024 is liable to be set aside, as the Bank's actions demonstrate a clear disregard for established legal procedures, prior court orders, and an agreement reached with the SA Applicant as per order dated 31.10.2023 and SA Applicant is ready and willing to comply with the same.

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18.Counsel for the respondent bank has filed reply to SA and submitted that SA applicants is not having any locus standi to file the present SA as SA applicants had already sold the property to Borrower of TCHFL and had also created mortgaged right in favor of answering respondent. The present petition filed by SA applicant being third party to SAFAESI measures is nothing but a delay tactics so that SA applicant be able to involve the respondent in a false vague and frivolous litigation just to enrich by way of fraudulent means.

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19.It is submitted that the SA applicant has not come before this Tribunal with clean hands and has concealed and misrepresented material facts with the sole intention to

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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get a favorable order and to delay the recovery proceedings initiated by the respondent. In the matter of Ramjas Foundation and another vs. Union of India and others, (2010) 14 SCC 38 the Hon'ble Supreme Court has held that a party who approaches the court with unclean hands or conceals material facts from the court is not entitled for any of the relief from the Court.

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20.It is submitted that firstly SA Applicant had illegally created third party right over the mortgaged property without having any permission from the respondent bank, and thereafter break the seal and trespass into the mortgaged property. The said facts sufficiently prove that the SA applicants, having malice, is not having any regards of law and repeatedly taking law of land in their hands.

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21.It is submitted that amended SA is liable to be dismissed on the ground of limitation as SA applicant had failed to challenge the SARFAESI measures taken by the respondent Bank within a period of 45 days from the date of action, as the SA applicant was very well aware of entire SARFAESI from initial i.e. from the date of issuance of demand notice dated 13.08.2021 u/s 13(2) of SARFAESI Act, but despite that SA applicant remained silent and intentionally, once SARFAESI proceeding had been initiated by respondent bank, SA applicant in spite of knowing that the asset is already mortgaged with respondent bank had gone into illegal transactions in the year 2022 without obtaining any no objection from the Respondent Bank. SA Applicants not only gone into illegal

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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transaction, but also had created false and frivolous back dated document that i.e. at page no 81 of amended SA, Agreement to sale execution date is mentioned 21.01.2020, however, the same is notarized on July 2022 thereafter another supplementary agreement was executed on June 2022 (At page no 86), stamp paper has been used of another company name (at page no. 87) and in the said supplementary agreement, previous agreement to sale dated 05.05.2021 has been referred which was not filed. These facts clearly show that SA Applicants in order to vitiate the legal recovery of answering respondent Bank not only had created false and frivolous document after measure has been taken by respondent bank, but also to convert their illegal action into legal have proceeded for filling SA being time barred, therefore, SA applicant is debarred from challenging the same.

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22.It is submitted that applicant is making false statement that he came to know about the action of answering respondent when few persons visited the property on 25.01.2023. On the contrary, fact is this that possession was taken by answering respondent and on the date of possession one of the promoter was present at the site/flat and the same is evident from the photographs taken at the time of possession. Therefore present SA is liable to be dismissed solely on this ground that applicant has filed present SA by concealing material facts.

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23.Further, it is pertinent to mention that company has given a letter to answering respondent which is permission to mortgage and there was specific version as

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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to mortgage which are reproduced hereunder for the sake of brevity-

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“And Notwithstanding anything to the contrary contained in the said Agreement for sale. We hereby agrees to note the said charge in our books in respect of the said flat and Mr Ankit Khandelwal will not be permitted to transfer, assign, sell off, cancel or in any other way/manner deal with the said flat prejudicial to the interest of Tata Capital Housing Finance Limited/it’s security trustee, without the prior written consent of Tata Capital Housing Finance Limited/its security trustee. We understand that as soon as the registration formalities are completed, we will send the registry documents to Tata Capital Housing Finance Limits/it’s security trustee directly.

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We also undertaken to inform and give proper notice to the co-operative housing society as and when formed, about the flat being so mortgaged.”

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24.It is submitted that as per letter dated 30.01.2018, it is ample clear that respondent no.-2 had no right to cancel the said flat as well as that applicant was also aware of the said fact that the property is mortgaged with respondent and they have also recorded charge of answering respondent in their books and thus applicant was also debarred from entering into agreement of cancellation of the said flat. Despite being aware of these

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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facts applicant has concealed all these facts from this Tribunal which proves that applicant and respondent no2 has joined hands together just to cause prejudice to answering respondent and entered into an agreement for which they has no right to do so and thus such an agreement which was said to be executed between applicant and respondent no-2 regarding cancellation of flat is null and void in light of ANNEUXRE-R/3. Thus all pleas taken herein are devoid of merits and are liable to be rejected with cost.

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25.It is submitted that agreement to sale dated 31.05.2022 does not give right to Anirudh Mehra as the property is duly mortgaged with respondent nor applicant had any right to enter into any such agreement without permission of respondent and such an act on the part of applicant amounts to criminal breach of trust for which respondent will take appropriate action as respondent has come to know about the said agreement on receipt of the said agreement to sale which is nothing but a nullity. It is relevant to mentioned that as per admission of applicants, supplementary agreement had been executed on 15.06.2022 however applicant admittedly had further allotted unit to one Mrs. Anirudh Mehra in the month of 31.05.2022 that is prior to the execution of supplementary agreement . The said facts clearly reveal that the fraud had been played by applicant in connivance with borrower and the applicants along with Borrower Mr. Ankit Khandelwal had tried to move the secured assets. It is also to be placed

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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on record that applicant had also not placed on record the details of fund transfer to borrower in respect to the supplementary agreement.

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It is submitted that auction was resulted into failure and therefore, pleas taken by the applicant has become infructous. However, it is pertinent to mention that there is no provision under law to mention date of possession in the auction notice and pleas taken herein are against law and also that there were no encumbrances on the property which can be said to be known to the respondents and it was clearly mentioned in the auction notice.

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It is submitted that applicant is authorized signatory of company i.e. company is the applicant in the present matter and one of the promoter was present when possession was being taken and the same is proved from the photographs placed on record along with possession notice and thus applicant is making false statement that applicant was not aware of the proceedings and present SA is liable to be dismissed with cost solely on this ground.

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28.It is submitted that demand notice has to be served on borrower and guarantor and answering respondent duly complied with the said legal requirement. It is further submitted that applicant has no right to challenge the action of answering respondent being a third party and to get any relief from this Tribunal being a person involve in criminal activity i.e. an offences under criminal breach of

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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trust, trespasser and/or breaking the seal and to create false and frivolous documents .

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29.It is submitted that respondent no- 2 mortgaged the property in question with respondent bank and availed loan facility from respondent Bank and further applicant gave permission to mortgage containing conditions. It is submitted that despite such specific conditions and admission, applicant and respondent no-2 in collusion with each other, without permission of respondent Bank, cancelled the said agreement and such cancellation does not any right to applicant or respondent no- 2 to cancel the agreement unless and until permission is taken from respondent Bank and therefore, the said agreement of cancellation executed between applicant and respondent no- 2 is a nullity and did not confer any right on applicant to deal with the mortgaged property and thus all pleas are liable to be rejected. It is further replied that the agreement to sale which is mortgaged with respondent Bank is a registered document. It is SA applicant’s own admission that SA applicant and respondent no.2 had with malice gone ahead and cancel the unit over which mortgaged right in favor of respondent Bank was created and SA applicants & Respondent no 2 not allowed to do the same under law. By doing said illegal acts, SA applicants and respondent no2 cheated the respondent Bank for which the respondent bank already had proceeded under criminal law. Further, it is to be submitted that SA Applicant had created false and frivolous back dated documents that i.e.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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at page no 81 of amended SA, Agreement to sale execution date is mentioned 21.01.2020, however, the same is notarized on July 2022 thereafter another supplementary agreement was executed on June 2022 (At page no 86), stamp paper has been used of another company name (at page no. 87) and in the said supplementary agreement, previous agreement to sale dated 05.05.2021 has been referred which was not filled. These facts clearly show that SA Applicants in order to vitiate the legal recovery of respondent no 1 not only had created false and frivolous documents but also trying to get favorable order on the basis of the same and by filing present SA, SA applicant wants to convert their illegal action into legal by having favorable order from the Court.

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30.It is further submitted that Hon’ble Rajasthan High Court in the matter of Atma Ram Bishnoi & Anr Vs District Collector & Ors has held that “ This Court is surprised that on one hand, a person had taken loan and when the same was not repaid, the possession of the mortgaged property was taken over by the petitioner bank as per law but by sheer muscle power, the petitioner bank has been dislodged and possession of the mortgaged property has been forcibly taken over by the respondent No.1 and despite having represented to the law enforcing officer, nothing has been done to uphold majesty of law till date. The situation is alarming and the State functionaries are warned that if they do not act in such a situation, it will create lawlessness in the

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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State of Rajasthan which will be viewed very seriously by this Court. Therefore, this court is of the view that stern action should be taken against the respondent No.1 for restoring possession of the mortgaged property immediately to the petitioner ”.

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31.It is further submitted that loan of LIC housing availed by third party on the mortgaged property basis on false and frivolous documents is also bad in law and is not permissible without NOC from respondent Bank. It is further submitted that in case applicant had made any payment the same is completely at the risk and cost of applicant.

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It is submitted that applicant himself did not honor his words and did not comply with the orders passed by this Court. It is further submitted that applicant did not make payment as per the orders and has committed default in complying with the orders passed by this Tribunal.

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33.It is vehemently denied that property ever vested in applicant as the property is duly mortgaged with respondent no. 1 and respondent no. 1 do have a first and exclusive charge over the said property. It is further replied applicant did not have any right to cancel the agreement and the same is proved from the condition incorporated in permission to mortgage and details of which have been herein above. It is replied that the agreement executed between applicant and third party is nothing, but a nullity and an illegal attempt on the part of applicant to deprive respondent no. 1 from recovering their lawful dues. It is to be submitted that the auction

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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proceeding has conducted as per applicable rules and regulation and by way of publication, intimation of sale proceeding has been given to general public at large therefore claim of SA applicants to give the intimation is wrong and denied.

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i. It is submitted that respondent no. 1 had not taken any action during the period of interim order. It is relevant to mention here that vide speaking order dated 31.10.2023 the Tribunal had disposed off the SA, directing respondent no. 1 that in case SA Applicant had failed to settle the matter, respondent no. 1 can proceed. It is stated that direction given vide order dated 31.01.2023 had been modified vide order dated 31.10.2023 and liberty had been given to respondent no. 1 to proceed further as per SARFAESI rules and regulation to recover its dues. After disposal of the SA, SA applicant had failed to honor the settlement and not paid the settlement amount on time. Having no option left, respondent no. 1 sent forfeiture-cumintimation notice stating that respondent no. 1 would be proceeding for auction of the property. It is stated that SA Applicant was having all knowledge about auction proceeding conducted by respondent no. 1 in spite of the same, while filing the MA and also at the time of arguments for allowing the MA for revival of SA, SA Applicants had never taken any prayer for specific direction of prior intimation, therefore, plea taken by SA Applicants at this stage for automatic revival of interim relief is devoid of any merit when interim relief has already been modified in terms of order dated 31.10.2023. It is submitted that

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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interim order, if any given during pendency of the petition/SA, could not be given effect to beyond the terms of the final order, unless the contrary is provided for in the final order, therefore, once the SA has been disposed vide order dated 31.10.2023 then in such scenario the effect of direction if any given by way of interim order is also been ended at the time of final order its self, therefore, at this point of time, SA applicants cannot take such plea. Thus it proves that applicant is regularly making absolute false statement before the Tribunal in order to get the favourable order. It is further submitted that applicant was never ready to make payment, auction has become successful in this matter and all pleas are taken herein just to frustrate the lawful proceedings of respondent no. 1.

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34.It is submitted that respondent no. 1 never concealed any material fact and there is no requirement to serve auction notice on such a person who is neither borrower nor guarantor nor co-applicant. It is submitted that applicant being a powerful person and a person involved in criminal activity of trespassing into the property and created false and frivolous documents. It is submitted that authorized officer of answering respondent went to affix the auction notice on the conspicuous part of the property but applicant using his power did not allow authorized officer to enter into the premises due to which authorized officer got their photographs clicked along with auction notice in hand Apart from this auction notice was also

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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published in 2 leading newspapers and uploaded on website.

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It is further submitted that respondent no. 1 put the property to auction seven (7) Times and succeeded in seventh time and from last three (3) auctions did not reduce the reserve price which is proved from the tabular sheet placed on record as to auction and then in this auction got a bidder revealing that even valuation was proper.

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It is submitted that the applicant who has no locus standi and a trespasser, always attempted to frustrate the lawful proceedings of answering respondent else applicant himself could have participated in auction when he was aware of all auctions. Therefore, all pleas being vague are denied and are liable to be rejected. It is submitted that applicant is challenging the auction price of answering respondent which is more that Rs 300 Lakh whereas applicant himself has sold the property (though illegally and giving no right to such person and by doing the act of cheating and fraud) in Rs 224 Lakh approximately and the said null and void sale deed is placed on record by Court Commissioner while submitting it’s report.

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It is submitted that the applicant himself has categorically admitted in his letter of permission to mortgage letter. Thus when applicant himself did not have any kind of right, title or interest in the said flat then how he could have passed any right, title or interest to any other person and the said person has entered into

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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agreement solely as his own cost, risk and consequences or in alternative in collusion with the applicant and no person can claim any right over the property.

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It is humbly prayed that the applicant has no locus to challenge the proceedings of respondent no. 1 and therefore, no prima facie case exists in favour of SA Applicant. Rather applicant has done the act of cheating and trespass and thus is not entitled to any kind of relief rather present SA itself deserves to be dismissed with exemplary cost.

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Heard the arguments of all parties.

¶112

That one SA has been filed by Mr Ankit Khandelwl, borrower of Respondent no1 the same is dismissed with cost by order dated 19.06.2025 in the said SA.

¶113

Admittedly the loan was rightly granted by the Respondent no 1 to respondent no. 2 against the said property on the basis of agreement to sell & an undertaking was executed by Applicant in favour of Respondent no 1.

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The allegation of Respondent no1 that without their charge being satisfied the Applicant has cancelled the agreement with the Borrower. Yes there is negligence on the part of Applicant having not obtained clearance certificate from the Respondent no1 but can that be fatal to their legal rights is to be seen.

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43. The respondent no 2 outplayed applicant by producing the demand drafts favouring Respondent no 1 and under Bonafide belief the Applicant accepted that the borrower has given Demand Drafts to Respondent no 1 and that

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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the liability of Respondent is cleared and property is free from the charge of Respondent no 1. But playing fraud with Applicant and Respondent no 1 the borrower did not gave those demand drafts to bank but got them cancelled thus the cancellation of agreement to sell was rightly done but the applicant could & should have been vigilant and could have addressed a letter informing them about Demand Drafts and clearance of charge.

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44. Be that it may be since one time settlement was agreed by Respondent no 1 from applicant it shows that they have also accepted the fact that property devolved upon or devolved back to builder though with their charge.

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The fraud played by the Respondent no 2 is writ large on the face of it as he remained absent from the present proceedings for long and only when both SAs were listed together the counsel appeared. He knew everything as is clear from his arguments filed in SA filed by him.

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Borrower has no interest left in the property after the cancellation of Agreement to sell on the basis of which loan was taken and property went back to builder. The negligence of the builder in not taking No dues certificate from the Respondent Bank is fatal and he is liable to clear the dues of the Respondent no1.

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The Securtisation action of the Bank is liable to be set aside as there are two basic ingredients to initiate action under SERFASAI act (1) account must be NPA (2) the Charge of lender must be registered with CERSAI. Only

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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first condition is satisfied but there is no confirmation of registration of charge with CERSAI and it gets admitted during the arguments that no charge was registered with CERSAI. Thus, entire action of the Respondent is likely to be quashed and accordingly quashed.

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Auction conducted by Respondent also get cancelled in view of above observation. The amount deposited by purchaser be returned with 6% interest (simple).

¶127

Account No. 50100253099813 HDFC, 3 D Villa Station, Jaipur was attached and account is in joint name of Suresh Chand Khandelwal and Ankit Khandelwal. Thus, Branch incharge of Branch is hereby directed to prepare one DD for Rs. 50,000/- in name of DRT Bar Association, Jaipur and another DD of Rs. 3,00,100/- in name of Tata Capital Housing Finance Ltd. and both DDs be deposited with the Registry of DRT within one week from today.

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Copy of order will be served by Applicant to HDFC Bank.

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Registry is directed to handover the DDs to payee upon its receipt.

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It is already noted that the property reverted back to Builder thus now it is his duty to clear the dues as per one time settlement already arrived at with certain enhancement after negotiation as the Tribunal feels that after court orders the Respondent should not have acted upon letter of borrower who had already played fraud by making DDs and not handing over to Respondent no 1. The fraudulent intention of Respondent no 2 were clear

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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and DDs were prepared, shown in original to builder, photocopy given then immediately were cancelled. The Counsel for the Applicant submits that he will pay OTS amount and an amount of Rs. 55.00 Lac is already deposited. The Respondent shall value date of such deposit and arrive at balance amount of OTS.

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The Securtisation Application stand allowed with no order as to cost.

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File be consigned to record, as per rules. Copy of order be uploaded on website. The parties are at liberty to move application in case of exigencies.

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Dasti

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(Vimal Gupta) Presiding Officer Debts Recovery Tribunal, Jaipur

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Ashok Singh v. Tata Capital and Housing Finance Ltd.

Case brief

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Ashok Singh v. Tata Capital and Housing Finance Ltd.

Case brief

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