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FINAL ORDER
1. The present securitization application has been filed by the applicant praying therein to restrain the respondent no. 1 from taking the possession of the plaintiffs in the suit property E-240, Old Municipal No. 1/5-B, Land measuring area 78.59 sq. mtrs., i.e.
94 Sqyd. East Babarpur, Illaqua Shahadra, Delhi - 110 032 (hereinafter referred to as `property-in- question') along with other relief(s).
2. The brief facts of the case are that the respondent no. 3 / Raj Sharma represented himself as the owner of the property-in-question. On 29.07.2014, both the parties agreed for sell and purchase of the Flat bearing no. 240 (3rdFloor) of the property-n-question and on 01.08.2014, an agreement / Bayana was executed between the applicant and the respondent no. 3 for purchasing the above said Flat. As per the agreement / Bayana dated 01.08.2014, the applicant paid Rs. 22.0 lac in cash, on different dates till 04.01.2015 and balance of Rs. 2.50 lac was to be paid at the time of execution of Sale Deed. Thereafter, the respondents handed over the possession of the above said Flat to the applicant and on 06.09.2014. It is further
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submitted that the balance amount of Rs. 2.50 lac was also paid by the applicant to the respondent in the presence of guarantor / Mr. Praveen Kumar. On 19.01.2015, the resonant no. 3 disclosed that the said Flat was owned by his wife/respondent no. 2 / Reena Sharma and the Sale Deed was executed before the Registrar by respondent no. 2 in favour of applicant on 19.01.2015. Thereafter, on 07.03.2016, the bank officials of respondent no. 1 bank visited at the above said Flat and handed over a possession notice dated 0503.2016 and affixed the same notice on the Flat and took photographs. Then the applicant shocked to know that the said property was mortgaged with the OBC and due loan amount is Rs. 30,38,808/- in the name of respondents no. 2 & 3 while the respondents during the deal, assured that the said Flat / property is free from all encumbrances. It is also stated in the SA that even the bank in his Written Statement filed in Civil Suit No. 10078 of 2016 titled as Raj Kumar @ Raj Kumar Bhardwaj & Anr. Vs. OBC stated that the defendants have no right to execute the alleged Agreement to Sale and Sale Deed as the property is mortgaged with the bank and the original title documents of the said property are lying mortgaged with the bank since 2013. It is further stated that in this regard, the applicant made a application to the Station House Officer, Welcome Police Station, Delhi dated 08.03.2016 and Deputy Commissioner of Police dated 09.03.2016 and also application was made to
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SHO, Shahdara on 31.05.2016 but no action has been taken till date. Hence, the applicant filed a petition u/s 156(3) Cr.PC. for registration of FIR and the Hon'ble Court ordered to registered FIR. The applicant also made representation before respondent no. 1, however, respondent no. 1 did not make any complaint against the respondents no. 2 & 3. Thereafter, on 21.04.2018, the respondent no. 1 bank issued Possession Notice, in the name of respondents no. 2 & 3, to vacate and give physical possession of the property of the applicant. Hence, the applicant was left with no option but to approach this Tribunal qua the actions / measures initiated by the respondent no. 1 bank under the SARFAESI Act
2002.
3. Notice on this SA were issued to the respondents and respondent no. 1 bank appeared through its Counsel and filed detailed reply. So far as respondents no. 2 & 3 are concerned, they neither appeared nor filed any reply.
4. The respondent no. 1 bank filed its detailed reply stating therein that the applicant herein is admittedly subsequent alleged purchaser of the Flat (3rdFloor) and is having no chain of title deeds, hence, the equitable principle of the mortgage i.e.
"Once Mortgage always mortgage until redeemed" is fully applicable in the present case and any
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subsequent sale of the mortgaged property is subject to mortgage and can be sold to realize the loan secured under the mortgage. It is stated in the reply that the respondents no. 2 & 3 approached the respondent no. 1 bank for sanction of Housing Loan to purchase the property i.e. property-in- question vide loan application dated 20.03.2013 and the respondent bank sanctioned Housing Loan of Rs.
30.0 lac vide Sanction Letter dated 28.03.2013. In consideration of having granted the aforesaid financial facility, the respondents no. 2 & 3 executed various documents on 06.04.2013 viz. common agreement; agreement of individual Housing Loan; agreement of guarantee executed by one Sh. Anil Kumar Sharma. Further, respondent no. 2 also created equitable mortgage by depositing the title deeds of the property-in-question with the respondent bank and same was confirmed vide confirmation of deposit of title deeds dated 01.05.2013. However, after availing the Loan, respondents no. 2 & 3 did not pay the instalments of the loan and hence, their loan was declared as NPA on 31.12.2015. Thereafter, respondent bank issued Recall Notice / Demand Notice dated 01.01.2016 under Section 13(2) of SARFAESI Act.
Subsequently, respondents no. 2 & 3 regularized the loan account by depositing the over due amount but again defaulted in payment of instalments and hence, the account was again declared as NPA on 30.06.2017. The respondent bank recalled the loan
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account and issued Recall Notice / Demand Notice dated 04.10.2017 under Section 13(2) of SARFAESI Act but the respondents failed and neglected to pay the amount, hence, the respondent bank took the symbolic possession of the mortgaged property under SARFAESI Act and pasted the Possession Notice on the property on 21.04.2018. Further, the respondent bank also filed an application under Section 14 of the SARFAESI Act before Ld. CMM which was allowed and vide order dated 05.07.2018, Ld. Receiver was appointed to take physical possession of the mortgaged property. In pursuance to order of Ld. CMM, the Ld. Receiver issued notice dated 01.10.2018 to the respondents no. 2 & 3 for taking possession of the mortgaged property again which the present SA has been filed. Hence, the respondent bank has taken all the actions / measure under SARFAESI Act, as per law, accordingly, it has been prayed for dismissal of the present securitization application.
5. The applicant has also filed the evidence by way of affidavit of Sh. Gagan Kumar Sharma, SPA holder of applicant herein, who has proved and exhibited certain documents such as copy of SPA as Ex. PW-1/A-1; copy of Agreement to Sell (Bayana) dated 01.08/2014 as Ex. PW-1/A-2; Copy of Sale Deed dated 19.01.2015 as Ex. PW-1/A-3; copy of Possession Notice dated 05.03.2016 as Ex. PW-1/4;
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copy of WS filed by the bank as Ex. PW-1/A-5; copy of order passed by the Court for registration of FIR as Ex. PW-1/A-6; copy of representation made before the bank as Ex. PW-1/A-7 and copy of Possession Notice dated 21.04.2018 as Ex. PW- 1/A-8.
6. The respondent no. 1 bank has also filed its evidence by way of affidavit of Sh. Nem Kumar, Chief Manager & GPA holder, of the respondent no. 1 bank who has proved various documents such as copy of power of attorney executed by respondent bank in his favour as Ex.R-1-W1/1; Loan Application dated 20.03.2013 along with annexures as Ex.R-1- W1/2; Sanction Letter dated 28.03.2013 as Ex.R-1- W1/3; common agreement dated 06.04.2013 executed by respondents no. 2 & 3 as Ex.R-1-W1/4' Agreement of Individual Housing Loan dated 06.04.2013 executed by respondents no. 2 & 3 as Ex.R-1-W1/5; Agreement of Guarantee dated 06.04.2013 executed by Sh. Anil Kumar Sharma as Ex.R-1-W1/6; Sale Deed dated 29.04.2013 with chain of documents as Ex.R-1-W1/7 (colly); confirmation of deposit of title deeds dated 0105.2013 as Ex.R-1-W1/8; Demand Notice dated 01.01.2016 as Ex.R-1-W1/9A(colly) and postal receipts thereof as Ex.R-1-W1/9B; another Demand Notice dated 04.10.2017 as Ex.R-1-W1/10 (colly) and postal receipts thereof as Ex.R-1-W1/11; copy
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of Possession Notice dated 21.04.2018 along with photographs as Ex.R-1-W1/12 and publication of Possession Notice in newspaper as Ex.R-1-W1/13; Order dated 05.07.2018 of Ld. CMM as Ex.R-1- W1/14 and Statement of Accounts duly certified under the Banker's Book Evidence Act as Ex.R-1- W1/15.
7. Heard and record has been thoroughly perused. In the present matter, Ld. counsel for applicant herein argued that applicant is bonafide purchaser of the property-in-question which was purchased by him from Smt. Reena Sharma w/o Sh. Raj Kumar Sharma vide registered Sale Deed dated 19.01.2015 whereas Smt. Reena Sharma purchased the said property vide registered Sale Deed dated 29.04.2013, however, the same was already mortgaged with the respondent bank. The applicant herein also lodged a FIR against Smt. Reena Sharma / respondent no. 2 as fraud has been committed upon the applicant by respondents no. 2 & 3. It is further contended that applicant herein is the bonafide purchaser of the property-in-question and prayed that the respondent bank be directed not to take the actual & physical possession of the property-in-question.
8. On the other hand, Ld. counsel for respondent no. 1 bank argued that equitable mortgage of the
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property-in-question was created by Smt. Reena Sharma against Housing Loan for a sum of Rs. 30.0 lac, which was sanctioned on 28.03.2013 for purchasing the property-in-question and the Sale Deed dated 29.04.2013 executed in favour of Smt. Reena Sharma was deposited with the respondent bank on 01.05.2013 and the relevant document i.e. Sale Deed as well as memorandum of deposit of title deeds, duly executed, are placed on record. Therefore, the property-in-question, purchased by the applicant herein is later in time, as the same was purchased by the applicant herein on 19.01.2015, therefore, there is no right, title and interest accrued in favour of the applicant and prayed for dismissal of the present SA.
9. In the present matter, apparently, Sale Deed which was executed by Smt. Reena Sharma w/o Sh. Raj Kumar Sharma in favour of present applicant i.e. Sh. Raj Kumar Bhardwaj on 19.01.2015 whereas Smt. Reena Sharma had already created equitable mortgage of the property-in-question with the respondent no. 1 bank by way of depositing the Sale Deed dated 29.04.2013 for availing Home Loan facility for purchase of the said property. The said Sale Deed was duly executed between Smt. Sushila w/o Sh. Satya Parkash and Smt. Reena Sharma w/o Sh. Raj Sharma on 29.04.2013, therefore, the property-in-question was equitably mortgaged by
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Smt. Reena Sharma while purchasing of the property-in-question whereas Sh. Raj Kumar Bhardwaj purchased the said property by virtue of subsequent Sale Deed dated 19.01.2015 i.e. after the creation of equitable mortgage in favour of respondent no. 1 bank by Smt. Reena Sharma, i.e., predecessor-in-interest, therefore, the prior right, title and interest in the property-in-question stands vest in favour of respondent bank, as the account of Smt. Reena Sharma has gone irregular. Accordingly, the bank was entitled to proceed under SARFAESI Act against the property-in-question (which was equitably mortgaged with it by its mortgagor i.e. Smt. Reena Sharma). It is settled preposition of law that as per Section 48 of Transfer of Property Act, prior right shall prevail over the subsequent one, therefore, prior equitable mortgage has been rightly created in favour of respondent no. 1 bank by Smt. Reena Sharma, and after that she was left with no right, title and interest in the property-in- question, which she could transfer subsequently in favour of Sh. Raj Kumar Bhardwaj / applicant herein on 19.01.2015, that too, without the prior permission of the respondent bank. No doubt, in the present matter, one FIR (marked as `F') has been registered on behalf of applicant herein i.e. Sh. Raj Kumar Bhardwaj against Smt. Reena Sharma, Sh. Raj Kumar Sharma and one Sh. Vinod, but the same was subsequent in nature and was lodged on 07.03.2018 whereas the equitable mortgage was
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created by Smt. Reena Sharma way back in 2013. Accordingly, the respondent no. 1 bank has proved that the equitable mortgage of the property-in- question was created by Smt. Reena Sharma by way of depositing Sale Deed dated 19.01.2015. Apart that, it is also settle principle of law that the buyer must be beware, but there is nothing on record that any such due diligence was ever adopted on behalf of applicant herein while purchasing the property-in- question. Even, the applicant herein did not prefer to obtain the previous chain of title deeds before executing the Sale Deed dated 19.01.2015, hence, by no stretch of imagination, it could be said that applicant herein is 'bonafide purchaser' of the property-in-question. Hence, in the given circumstances, as there is default on the part of Smt. Reena Sharma in the repayment of loan amount of the repayment of the bank, therefore, the right, title and interest stand vest with the respondent no. 1 bank accordingly, the bank is entitled to initiate the action/measures under SARFAESI Act, for recovering its dues by issuing notice under Section 13(2) and 13(4) of the SARFAESI Act. Therefore, there is no ambuiguity or perversity in the actions / measures of the respondent no. 1 bank with respect to property-in- question.
10. In sequel of the above discussion, the applicant failed to prove that she is the bonafide
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purchaser and there was any illegality or ambiguity in the actions/measures of the respondent bank under SARFAESI Act.
11. Resultantly, the present S.A being devoid of any merits, stands dismissed with no order to costs. File be consigned to records.
(DHARMINDER SINGH)
PRESIDING OFFICER
DRT-III, DELHI (Pronounced in open court) Dated:31.08.2019
AB