Mirza sardar baig v. Indian overseas bank

3of8 SA No.22sl20r8 within the meaning of Sec.2(zd) of the Act. The 1't respondent bank filed FIR No.1519/2017 dated 16.11.2017 before P.S. KPHB Colony wherein respondent bank admitted that that Mohd. Chand (R4) colluded with R2 and R3 i..e, 41 and A2 in FIR, and sold the Flats 3 and 4. The case is pending before learned II AICJ cum XIX lvletropolitan Magistrate, Kukatpally^at Miyapur, Cyberabad. The 1st respondent bank concealed the fact of filing FIR in OA No.3868/2017 and obtained ex parte order dated 28.02.2018. The seller executed the sale deed without possessing proper tile or authority^and sale consideration. The 1st respondent bank cannot invoke SARFAESI Act provisions against the SA schedule property. Hence this SA to set aside the same.

3. Respondents 2 to 4 are not necessary parties to the SA as^per applicant.

4. The 1st respondent bank filed reply statement stating, mfer alia, lhat the registered sale deed deposited by the^2nd respondent is of the year 2016 whereas the document of applicant belongs to the year 2018. Hence the mortgage created much before sale transaction between the applicant^and 4th respondent. In the sale deed deposited with 1st respondent bank it is clearly mentioned that 4th respondent is only the legal heir of^late Smt.Shameem Begum. The applicant cannot presume that there are other legal heirs without documentary proof. Since the suit is pending which^has not culminated into any result, there cannot be any presumption about^the nature of the sale deed deposited with the 1st respondent bank.^The applicant is not in possession of the property. When the 4th respondent conveyed title to 3rd respondent which was mortgaged with the bank,^he could not have conveyed title once again to applicant hence subsequent^sale with applicant is defective. The cited judgements are not applicable to the present case. The SA is liable to be dismissed. Non'u

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4 of 8

sA No'225/2018

5. Heard learned counsel appearing for the applicant and learned counsel

appearing for the 1st respondent bank Perused the written arguments filed

on behalf of both the parties and the material documents brought on record'

6. During the course of arguments' the learned counsel for applicant

whilereiteratingotheravermentsmadeintheapplication,Stressedonthe points thau the 4th respondent executed sale deed without proper authority

in terms of Sec.l1 of the Indian Contract Act and Sec S of the Transfer of

Property Act (.'T.P Act") and the said fact was admitted by the^1st

respondent bank in FIR 75f912077 filed by it' This forms as an intrinsic

evidence in view of case law between Bishnudev Narain Ravi vs' Anmol Devi

tlggS (7) SCC 4g8l and Neha Agarwat vs'

PNB Housing Finance & Others'

The sale deed is liable to be set aside since it is a voidable contract in terms

of Sec.19 of the Indian contract Act Learned counsel placed reliance^on

case law in the case of Ramaswamy vs' Subba

Rao IAIR 1996 SC 1474] in

this regard. He further contends that slnce al the cheques alleged to^be

issued towards sale consideration were never

presented and encashed'

there was no sale consideration in exchange of ownership and hence^the

sale deed deposited with 1st respondent bank is not qualified under Sec 54

of the T.P. Act. the 1st respondent bank cannot claim to be secured creditor

on the basis of fake and forged tiile deeds as observed in the case of^Bank

of India vs. Gunavanthi Ben Bhawar Bal Mehtha [2006

(2) D BC16]'Ihe^sale transactionwasmadebythe4threspondentonlytodefraudthelst respondent bank and this conduct negatively affects the sale transaction^as

observed in case law of Mangala Kunhamina LJmma and other vs'^{P Paru}

Amma and other [AIR 1971 SC 1575]'The 3'd respondent submitted to the

l.trespondentbankfakesalaryslips,Form.l6andstatementofaccount and reportedly was arrested and released

on ball^The mortgage is^not

valid in terms of Sec'58(f) of the T'P Act' Learned counsel relied^on

judgement of Hon'ble Supreme Court in Unlted bank of India vs'^M/s Lakara

Saonaram & Co & others IAIR 1965 SC 1591)' T]fr'"tOond"nt btnr

Uz'{ox'\

5of8 SA No.22512018 obtained ex parte decree in OA by suppressing the facts of filing FIR and it is settled proposition of law that order or judgement obtained by playing fraud on the Court is a nullity and non-est in the eyes of law. Learned counsel relied on judgement in S,P. Chengalvaraya Naidu (dead) by LRs vs. Jagannath (dead) by LRs and others IAIR 1994 SC 853]. The fraud voids all judicial acts, ecclesiastical or temporal. With these contentions, learned counsel prays to allow the SA.

7. The learned counsel for the 1st respondent bank reiterated the version as in the application. He emphasises his argument on the point that the registered document No.13829/2016 executed in the name of mortgagor was prior to the sale deed Doc. No.142012018 pressed into service by the applicant. There is no documentary proof to show that there are other legal heirs to Smt.Shameem Begum besides 4th respondent. The 3rd respondent in good faith purchased the property through a valid registered document. The alleged fraud and fabrication are imaginary hence do not deserve consideration. As the suit is pending adjudication, the nature of sale deed cannot be presumed.

8. I have considered the submissions. The subject property in this SA^is Flat No.4, Ground Floor, admeasuring 1100 sft in Noble Residency, Plot No.25lA, H.No.1-61l1, Survey No.8 at Gachibowli. Hyderabad in the name of Akula Amma Rao who^is the 3rd respondent herein. The applicant is a third party to Securitization proceedings and he stated to have purchased the application schedule property along with some other Flats in Noble Residency for a total consideration of Rs.97.92 lakhs vide registered sale deed No.1420/2018, dated 29.07.2018 executed by the legal heirs of deceased original owner viz., Smt.Shameem Begum including 4th respondent Mohd. Chand. According to 1st respondent bank, Akula Amma Rao^(R3) purchased the subject Flat in the year 2016 ltself and deposited the sale deed No.13829/2016 dated 20.10.2016 towards security for the loan availed firy>l'q'l\

f/ "$'

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6of8 by him. Due to default committedⁱⁿ initiated sARFAESI proceedings against 72.^To decide the sA, it is important possessed by the applicant is genuine or observe that on one hand, father^of SA No'22s/2018

repayment, the 1't resPondent^bank the secured asset.

9. The primary contention of the applicant is that^the sale deed deposited

by Akula Amma Rao (R3) is a fraudulent document since lvlohd Chand^(R4)

is not only the legal heir of late Smt Shameem Begum but he executed^sale

deed without having lawful right or authority and hence the morigage^has

no legal enforceability ln spite of stating the respondents 3^{and 4}

fraudsters, the applicant stated them as not necessary parties' for^the

reasonsbestknowntohim.TheapplicantclaimstosetasidetheSARFAES1 measuresbasingontwothings;(i)FiR1519/20lTfiledbyl.trespondent and (ii) OS No.110/2018 filed by father of R4 and one of the executants of

sale deed in favour of the applicant On his own' the appllcant has^not

initiated any actlon against anyone'

10. As far^{as FIR} 1519/2017 is concerned' the current status of^the

criminal complaint is not reported lt is deemed that matter is sub judice'

Without conclusion of criminal proceedings' the FIR copy cannot be taken^as

intrinsicevidenceoffraudaspleadedbythelearnedcounselforthe applicant and no direction can be issued to 1st respondent bank to stop^the

recoverymeasuresbasedontheFlRcopy.So,noneofthecitationsisnot of help to the applicant'

11. The course of action that shall be available to^the 1st respondent bank

is not the subject matter herein and such action will^be depending on^the

conclusion of criminal proceedings pursuant to

FIR filed by the bank'

to enquire whether the title^deed

not. In this regard, it is pertinent to

Mohd. Chand (R4) instituted os

Noqt\

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7 ol8 SA No.225l2018 110/2018 on 29.01.2018 for cancellation of sale deed No.13829/2016 and 13830/2016 executed by his son (R4) by falsely stating that he was onty the legal heir of Smt.Shameem Begum and on the other hand, on the very same day i.e., on 29.01.2078, 14ohd. Moinuddin executed sale deed 742012078 in favour of the applicant along with other legal heirs including his son (R4) against whom OS was being filed. Thus, undoubtedly the title conveyed by virtue of sale deed Doc. No.142012018 is also not clear. Surprisingly, the applicant has not taken any civil or criminal action against Mohd. Chand (R4) or his father for executing fresh sale deed despite raising dispute over the subject property in os 110/2018. in fact, applicant has not pressed sA proceedings against R3 and R4 by stating that they are not necessary parties. The applicant started agitating rights only when 1st respondent bank has initiated SARFAESI measures. Under such circumstances, a conspiracy among applicant, R4 and his father cannot be ruled out. If the sale deed deposited by Akula Amma Rao (R3) is a fake document as^per applicant, the sale deed executed in favour of the applicant is also not clear from fraud angle as stated supra. However, this Trlbunal has no scope ofjurisdiction to enquire into the title issue where a fraud is smelt.

13. In view of the above observations, I find that the applicant failed to establish his case to set aside the possession notice dated 09.05.2018 issued under Sec.13(4) ofthe Act, 2002. Accordingly, the SA is liable to be dismissed.

Point No.(ii):

In the result, Securitization Application fails and is hereby dismissed.

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8of8 sA No.22sl201;

16. No order as to costs'

17. Communicate a copy of this order to^the parties concerned and upload

in the official website'

(Typed to mY dictation^bY ?-"-ls:-'i'lifl"d' signed and pronounced bY me in the open court '"i,iiiiii" )la; i;i^or september' 202q)'

ESHWAR KOTHE)

PRESIDING OFFICER

;!q}\

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