The DRT dismissed an application challenging the Respondent's notice for physical possession of a flat. The court rejected claims of defective demand service, non-restoration of prior symbolic possession, and invalidity of mortgage due to non-registration under the Registration Act.
Application dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
SECURITISATION APPLICATION NO.260 OF 2022
DEBTS RECOVERY TRIBUNAL No.2, MUMBAI
PRESIDING OFFICER: HARISH KUMAR KAUSHIK
SECURITISATION APPLICATION NO.260 OF 2022
Date of Institution: 23.08.2022 Date of Decision: 14.01.2026
Ramchandra Sadigale sole proprietor of ORSS Impex the Proprietary Concern having address Flat No.4602, 46th Floor, Wing C, Roma Lodha Fiorenza Behind Hub Mall, WE Highway, Goregaon (E), Mumbai 400063 Through CA Ajay Mohan Kachare
… Applicant
Versus
After amendment,
SMFG India Home Finance Company Ltd. Corporate Office at 503 & 504, 5th Floor, G Block, Inspire BKC, BKC Main Road, Bandra Kurla Complex, BKC Mumbai 400051.
…Respondent
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SECURITISATION APPLICATION NO.260 OF 2022
| APPEARANCES | |||
|---|---|---|---|
| For the Applicant | : Mr Sunil Humb |
re, | Mr |
| Parameshwar Andil Abhishek U. Arote - A |
i/b dvoc |
Mr ates |
|
| For Respondent | : Mr Rajesh Nagori |
and | Mr |
| Krishna Jaiwar i/b | Mr | R.L. | |
| Motwani – Advocates |
Final Order
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SECURITISATION APPLICATION NO.260 OF 2022
the borrower was classified as Non-Performing Asset on 30.09.2019. The Respondent issued first Demand Notice u/s. 13(2) of SARFAESI Act,2002 on 01.10.2019 calling upon the Applicant for an amount of Rs.2,97,49,106/-. The Applicant did not comply with the said 13(2) notice consequently, the Respondent took symbolic possession of the mortgaged property on 19.12.2019.
(3) That the Applicant on 21.08.2020, paid a sum of Rs.33,69,834/- for regularization of account and thus, the Respondent withdrew the SARFAESI measures on 24.08.2020. The Applicant paid EMIs’ regularly till March, 2021 and since then, no amount was paid. So, the Respondent second time, classified the account of the borrower as NPA on 31.05.2021 and a second Demand Notice under Section 13(2) of the SARFAESI Act, 2002 was issued on 21.06.2021 for an amount of Rs.2,97,49,106/- and symbolic possession of the said flat was again taken on 10.11.2021.
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SECURITISATION APPLICATION NO.260 OF 2022
12.00 p.m. Thus, being aggrieved by the action taken by the Respondent Bank the Applicant filed the present S.A. No.260 of 2022 on 23.08.2022 with prayer that the Respondent be restrained from further proceeding due to non-compliance of the provisions of SARFAESI Act, 2002 and Rules made thereunder.
The reply affidavit filed by Respondent as follows:
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SECURITISATION APPLICATION NO.260 OF 2022
of the Registration Act, 1908, every person who has mortgaged immovable property by depositing title deeds under Clause (f) of Section 58 of TPA Act, 1882 shall within 30 days from the date of mortgage, file a notice of intimation. Hence, the Applicants are bound by the Terms and conditions of the documents executed in favour of the Respondent Company.
(8) That the Applicant was given enough opportunities for repayment of the said loan but he has still defaulted. Thus, the present S.A. has no merit in his favour. Hence, needs to be dismissed.
The re-joinder affidavit filed by the Applicant as follows:
(9) In rejoinder, the Applicant has denied all the contentions made by the Respondent in their Reply dated 27.11.2024 and stated that the Respondent is claiming its mortgage over the said flat and the Respondent is relying upon a single document i.e., the MOE for loan allegedly executed between the Applicant and Respondent on 22.06.2018. However, it is pertinent to note that the neither the mortgage deed is registered nor properly stamped. As per amendment in registration Act in Maharashtra with effect from 01.04.2013 agreement relating to Section 17(1)(f) of Registration Act 1908 as under section 17(1)(f), the agreement relating to the deposit of title deeds,
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SECURITISATION APPLICATION NO.260 OF 2022
where such the deposit made by view of security for the repayment of loan on existing and future debts . As per this proviso, the registration of mortgaged is compulsory in the state of Maharashtra and same is not done by the Respondent. Hence, mortgage is defective, void ab initio.
(10) Further the Applicant states that the Respondent claims to have issued the Demand notice dated 21.06.2021 and the said notice was not served upon the Applicant. However, a mere perusal of the said notice clearly shows the non-compliance of the mandatory provisions of Section 13 (2) and Rule 3 of the SARFAESI Act, 2002 and the Rules framed under Rule 3 of the SARFAESI Rules, 2002. The proceeding of the Application filed by the Respondent before Ld. CMM, Mumbai shows that the Respondent has not affixed a copy of the said Demand Notice on the outer door or some other conspicuous part of the house. In the reply, the Respondent has annexed only postal acknowledgment and intentionally avoid to annexed the tracking reports of the service of the demand notice. The Respondent has not annexed the returned AD Card to the above reply which shows that the demand notice has not been properly served upon the Applicant. The mere postal acknowledgment cannot show the delivery of the demand notice upon the Applicant. The
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SECURITISATION APPLICATION NO.260 OF 2022
Respondent has annexed the pasting of a demand notice. Nevertheless, the Respondent has failed to present evidence that the said demand notice is fastened to the applicant's outer door or to someone else's door.
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SECURITISATION APPLICATION NO.260 OF 2022
Thus, the Applicant states that on all the above grounds the present S.A. deserves to be allowed.
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SECURITISATION APPLICATION NO.260 OF 2022
any support from the principle laid down in that judgment. Resultantly, no prejudice is caused to the Applicant simply because there was no communication regarding the officially restoration of symbolic possession of the said flat which was in possession of the Applicant since beginning.
(17) The other submission of the Ld. Advocate for the Applicant was that the mortgage was not registered as per provision of Section 17(1)(f) of the Registration Act, 1908. So, Respondent cannot proceed upon the basis of so-called mortgage. The Ld. Advocate for Respondent opposed and submitted that the above section 17(1) of the Registration Act, 1908 should be read with Section 89(b) of the Registration Act. According to which, it is the duty of the mortgagor to file a notice of intimation within 30 days from the date of mortgage regarding details of the mortgagee and the date of mortgage which was not done by the mortgagor and mortgagor failed to pay the requisite amount for registration. So, now it cannot take its benefit for its own fault.
Others 2021 dated 29.11.2021 in which it was held that in view of the Maharashtra amendment to the
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SECURITISATION APPLICATION NO.260 OF 2022
Registration Act, the obligation is on the mortgagor to file the notice of intimation of having mortgage the property by giving details of the name and address of the mortgagee, date of mortgage and the amount of mortgage debt, rate of interest payable and list of documents deposited and description of the immovable property such intimation is to be given to the Registering officer in the local limits of whose jurisdiction whole or any party of the property situated. It is also pertinent to note that the Applicant/mortgagor has to pay the registration fee. Hence, in the facts and circumstances of the case and in the light of principle laid down in the judgment, the Applicant is not entitled for any relief in view of provision of Section 17(1)(f) of the Registration Act,1908.
(19) Ld. Advocate for the Applicant also contended that no name and designation was mentioned in the subsequent demand notice dated 21.06.2021 without which demand notice is liable to quashed. The Respondent’s Advocate opposed and submitted that the notice was given by Authorized officer, Mr Mukesh Kumar Chaudhary whose name is shown in the appointment of authorized officer approved in the resolution passed on 19.03.2020 at Mumbai of Respondent Company. The name of the authorized officer is shown in the list Exhibit-D filed in the reply by the Respondent. So, in the
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SECURITISATION APPLICATION NO.260 OF 2022
above facts and circumstances of the case, the arguments of Ld. Advocate for the Applicant does not seem to be of value.
(20) Regarding the submissions of non-service of demand notice upon the Applicant, it is pertinent to note that after the return of the Envelop through RPAD, the Respondent pasted the notice upon the said flat and also paper publication was done. The Applicant never objected at the relevant time. It is also significant in the matter that after issuance of possession notice dated 16.07.2022, the Applicant wrote letter to the court commissioner Advocate Trupti M. Kamble, with a request not to take physical possession of the said flat as per order dated 05.05.2022 which is scheduled on 29.08.2022 as the talk is going on about payment of pending EMIs and regularizing of loan account and settlement. Hence, the contention of the Applicant’s Ld. Advocate is not acceptable.
Sd/-
(Harish Kumar Kaushik) Presiding Officer, DRT-2, Mumbai
Radhika
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3 issues framed by the court
Whether SARFAESI measures should be upheld despite prior symbolic possession not being restored before issuing a second demand notice.
Whether a mortgage created by deposit of title deeds is valid in Maharashtra where the registration notice under Section 17(1)(f) was not filed.
Whether non-registration of mortgage due to mortgagor's fault under Section 89B of the Registration Act invalidates the security interest.
Colour shows how this judgement treated each authority
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4 provisions across 2 enactments
Ramchandra Sadigale ORSS Impex
Fullerton India Home Finance Company Limited SMFG India Home Finance Company Ltd.
HARISH KUMAR KAUSHIK
As recorded by the court registry
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