IDBI BANK v. SRI GOURI SHANKAR BANERJEE

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interim order was passed directing the Respondent not to alienate the property in question. Thereafter, through the orders of the Consumer Forum in E.A. Case No. 79 of 2008, Deed of Conveyance was executed in favour of the SARFAESI Applicant. Thereafter he filed a Title Suit No. 789 of 2010 before the 1^stCivil Judge, (Junior Division), at Alipore wherein an ex parte decree was passed in his favour declaring him as the actual owner of the secured assets.

5. Possession Notice was pasted on the secured assets by the Appellant herein on 6^thJuly, 2015 wherefrom he came to know that the secured assets have been mortgaged by Respondents No. 2 and 3 in the appeal, namely, Amiya Kumar Mandal and Smt. Keya Mandal, in favour of IDBI Bank. On making an enquiry, it appeared that a loan of Rs.7.00 lac was sanctioned by the Appellant Bank in their favour on 29.6.2005 on the basis of a Conveyance Deed dated 01.7.2005. SARFAESI Applicant has no concern about the aforesaid loan. He is in possession of the property in question. Accordingly, he preferred the SARFAESI Application for quashing the Possession Notice.

6. Appellant herein, Bank, filed opposition and submitted that the loan was sanctioned in favour of the Respondents No. 2 and 3 in the appeal. However, loan was not repaid as per the terms and conditions. Thereafter Bank initiated action under the SARFAESI Act, 2002. Notices under Sections 13 (2) and 13 (4) of the Act were issued and Possession Notice was pasted on the secured assets.

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7. Learned DRT, after considering the rival contentions made by the Learned Counsel for the parties, recorded a finding that the loan was sanctioned in hasty manner and the Deed of Conveyance, deposited by the Respondents No. 2 and 3, is not beyond doubt, accordingly the Bank is not entitled to get the possession of the mortgaged property on the basis of the Deed of Conveyance and accordingly, allowed the SARFAESI Application.

8. Learned Counsel for Appellant would submit that the Bank has initiated action under the SARFAESI Act in accordance with law. Loan was sanctioned to the Respondents No. 2 and 3. Security agreements were executed securing the property in question, the secured asset, which was on the basis of the Deed of Conveyance dated 01.7.2005, which is a registered document. It is further submitted that alleged agreement of sale by the SARFAESI Applicant is an unregistered document. Further, agreement for sale does not confer any right in favour of the Respondent No. 1. It is further submitted that the Bank was not a party either before the Consumer Court or Civil Court. Bank has first charge over the secured assets and accordingly proceeded in accordance with law.

9. Despite service, none appeared for the Respondents.

10. Whole contention of the SARFAESI Applicant is based on the Agreement for Sale which was an unregistered document. Bank sanctioned the loan to Respondents No.2 and 3 on the basis of a Deed of Conveyance which was a registered document. It is settled legal proposition that an

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agreement for sale does not confer any right or title in favour of the vendor or vendee. Hon'ble Apex Court in Civil Appeal No. …. of 2025 (Arising out of Diary No. 38616 of 2018) dated 07.01.2025 (Indian Overseas Bank -vs- M.A.S. Subramanian & Others) 2025 LiveLaw (SC) 77 in paragraph 6 has held that :

"6. It is well settled that an agreement for sale in respect of an immovable property does not transfer title in favour of the purchaser under the agreement. In view of Section 54 of the Transfer of Property Act, 1882, an agreement for sale does not create any interest in the property. The only mode by which an immovable property worth more than Rs. 100/- (Rupees one hundred) can be sold is by a sale deed duly registered in accordance with the Indian Registration Act, 1908." Thus it is settled that an agreement for sale in respect of immoveable property does not transfer title.

11. Filing of case before the Consumer Forum or Civil Court are subsequent developments while the first charge was already created over the secured assets in favour of the Bank. If there is any inter se disputes between the parties, Bank is not a party to such disputes and no liability can be put on the Bank.

12. Loan was sanctioned by the Bank on the basis of a registered document, i.e. Deed of Conveyance, in favour of Respondents No. 2 and 3 which was a valid document. Bank was well within its power to sanction a loan on the basis of a registered document.

13. On the basis of the discussion made above, I am of the considered view that the Learned DRT has erred in recording its finding that Defendant Bank hastily sanctioned the loan which finding is without any basis. Furthermore, the first charge was already created over the secured assets in

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favour of the Bank. Accordingly, appeal deserves to be allowed.

O R D E R

Appeal is allowed. Impugned judgment and order dated 29^thJuly, 2019, passed by Learned DRT-III, Kolkata, allowing S.A. 307 of 2015 (Gauri Shankar Banerjee -vs- IDBI Bank Limited & Others), is set aside, SARFAESI Applicant No. 307 of 2015 stands dismissed. No order as to costs.

Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned

DRT.

File be consigned to Record room. Order dictated and pronounced in open Court. (Anil Kumar Srivastava,J)

Chairperson

Dated: 4^thMarch, 2025

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