IN THE DEBTS RECOVERY TRIBUNAL, II, MUMBAI Before Shri Md. Zafar Imam, Presiding Officer. SECURITISATION APPLICATION NO. 216 OF 2018 Ranvar Alloys Pvt. Ltd. & Ors. . . .Applicants. V/s. Xander Finance Pvt. Ltd. & Anr. . . .Respondents. Mr. Rajesh Nagori, i/b Ms. Sanjana Ghogare, Advocate for the Applic ants. None is present for Respondent s. Order On Interim Application No. 493 of 2018 (Exh. No. 8) Dt. 3rd April, 2018
1. The Applicants have filed Interim Application (I.A.) No. 493 of 2018 (Exh. 8) in Securitisation Application (S.A.) No. 216 of 2018 praying therein that pending hearing and final disposal of the present S.A. the respondent no.1 be restrained from in any manner taking physical possession of the suit properties being Flat Nos. 603, 1204, 1803 and 2003, Wing B, Bhagtani Krishaang Building, Hiranandani Garden, Powai, being and situated at Chandivli, Mumbai-400076.
2. Heard the learned counsel of applicants.
3. The Applicants submitted that they are third parties and bonafide purchasers of the suit flats and they are neither borrowers nor mortgagors in the present matter .. 2 .. and there is no any brevity of contract or any banking relationship with the respondent no.1. It is submitted that the respondent no.2 Jaycee Homes Pvt. Ltd. have no share, right, title or interest of whatsoever nature in respect of the suit flats. The respondent no.1 do not have its charge on the said flats. Hence, the action initiated by the respondent no.1 is not in accordance with the provisions of the sarfaesi act and the rules made thereunder. The applicants are the owners and are in possession of the suit flats. The said flats were purchased by the applicants from respondent no.2 as per the registered agreement for sale dated 27.10.2017, 30.10.2017, 01.11.2014 and 02.12.2014. Flat No. 603-B was purchased by the applicant no.1 Ranvar Alloys Pvt. Ltd. from the respondent no.2 under the registered agreement for sale, dated 27.10.2017. The respondent no.2 is the borrower, mortgagor and builder. The Flat No.1204-B was purchased by the applicant no.1 from the respondent no.2 under the registered agreement for sale, dated 30.10.2017. Flat No. 1803-B was purchased by applicant no.3. - Anupama under the registered agreement for sale, dated 01.11.2014. Flat No. 2003-B was purchased by applicant no.2 Udayan Grover from .. 3 .. the respondent no.2 under the registered agreement for sale, dated 02.12.2014. It is submitted that all the suit flats were mortgaged with the respondent no.1 on 19.06.2015. It is submitted that the respondent no.1 do not have a valid mortgage in respect of the suit flats.
4. I find that the respondent no.1 issued demand notice dated 15.09.2017 u/s 13 (2) of the SARFAESI Act to respondent no.2 & Ors. calling upon them to pay the sum of Rs.12,87,57,283/- to the respondent no.1. The respondent no.1 obtained order dated 15.01.2018 u/s 14 of the SARFAESI Act for taking physical possession of the suit flats. Pursuant to that the Advocate Court Commissioner has issued possession notice dated 17.03.2018 for taking physical possession of the flats mentioned therein within 15 days from the date of the possession notice.
5. On examination of the documents on record, I find that the suit flats have been sold under different agreements for sale by the respondent no.2 and respondent no.2 have mortgaged the suit flats with the respondent no.1 allegedly on 19.06.2015. It appears that the sale of flat nos. 603-B, 1204-B are allegedly after the mortgage of these two flats with the respondent no.1. .. 4 .. Further it appears that the sale of suit flat nos.1803-B and 2003-B is before the alleged mortgage. Meanwhile, I find that all the four agreements for sale have been registered on different dates i.e. in respect of Flat No. 603-B registered on 27.10.2017, Flat No.1204-B registered on 30.10.2017, Flat No. 1803-B registered on 01.11.2014 and Flat No. 2003-B registered on 02.12.2014. It is c lear that Flat Nos.603-B and Flat No. 1204-B have been sold subject to mortgage as once mortgage always mortgage. Further, it is clear that Flat No. 1803-B and Flat No.2003-B have been shown prior to the mortgage. Hence, the mortgage as created on 29.06.2015 shall not be treated as mortgage in respect of these two flats i.e. Flat Nos.1803-B and 2003-B because the mortgagor has no right, title and interest in respect of these two flats at the time of alleged mortgage allegedly by the respondent no.2 with the respondent no.1. Also because of the fact that at the time of alleged mortgage the owner of the said flats were Anupama Grover and Udayan Grover and they are not the mortgagors in the present matter. The respondent no.2 builder has already sold these two flats to applicant nos.2 and 3 and on that ground it can be said that the respondent no.2 cannot .. 5 .. legally mortgage these two flats with the respondent no.1 after that sale. So far the mortgage of rest two flats is concerned, I find that the alleged mortgage in respect of Flat Nos.603-B and 1204-B is valid and subsisting and the alleged sale of these flats after mortgage will always be subject to mortgage.
6. The applicants have given the description of the properties that includes all the four flats and the applicants have sought restraining order by way of injunction against the action and measures of the respondent no.1 in respect of all these four flats but on perusal of the possession notice dated 17.03.2018 issued by the Advocate Court Commissioner, I find that the said possession notice is only in respect of Suit Flat Nos. 603- B and 1204-B and it does not include the rest two flats. Hence, the prayer of the applicants should only be limited to the aforesaid two flats and it cannot be extended over the rest two flats. The prayer of the applicants is only relevant in respect of the Suit Flat Nos. 603-B and 1204-B and there is no any cause of action in respect of the rest flat i.e. Flat Nos.1803-B and 2003-B.
7. The observation of the Tribunal in respect of rest two flats is not relevant in the disposal of the present .. 6 ..
I.A. but as the applicants have included the rest two flats also in their S.A. / I.A. the same has been discussed in this order.
8. Since the alleged mortgage in respect of the actual suit flats i.e. Flat Nos. 603-B and 1204-B is before the sale of these two flats and as such the said sale shall always be treated as subject to mortgage and I find that the alleged mortgage is valid and subsisting in favour of the respondent no.1, I do not find any cogent and substantial reasons to restrain the respondent no.1 from proceeding further for taking physical possession of the actual suit flats herein i.e. Flat Nos. 603-B and 1204-B.
9. In the result, the prayer of the applicants stands rejected and for the same reasons the I.A. No. 493 of 2018 (Exh. 8) also stands rejected. Sd/- (Md. Zafar Imam) Mumbai Presiding Officer, Dt.: 3 r d April, 2018. Debts Recovery Tribunal, II , dpjoshi Mumbai