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BEFORE THE DEBTS RECOVERY
APPELLATE TRIBUNAL, AT: MUMBAI
Present : Mr. Justice Ashok Menon, Chairperson I.A. No. 232/2024 (Stay)
In
Misc. Appeal No. 48/2024
Between
Sunil Ramdasji Chandekar & Anr. … Appellant/s V/s.
Shikshak Sahakari Bank Ltd. &Anr. …Respondent/s Mr. Ashish Killedar, Advocate for Appellant appeared through Video Conference.
An Advocate for the Respondent appeared through a Video Conference.
-: Order dated: 04/04/2024:-
The matter is taken up for hearing by way of a praecipe filed by the Appellants for seeking urgent relief.
The Appellants are in appeal impugned the order dated 15.03.2024 in the Interim Application (I.A.) No. 513/2024 in Securitization Application (S.A.) No. 36/2023 on the files of the Debts Recovery Tribunal-Nagpur (D.R.T.) whereby the Ld. Presiding Officer declined to grant any protection to the Applicant concerning the Sarfaesi measures initiated by the Respondent bank regarding the secured assets under the provision of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("SARFAESI Act" for short) for recovery of the debt due from the borrowers who is Respondent No.2.
2. The Appellants claimed they are the true owners of the
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property and that it was sold to the 2ndRespondent under the registered sale deed executed on 17.10.2016 but the entire sale consideration has not been paid to the Appellants and therefore, they are unpaid render of the property. A Civil Suit has also been filed as No. 121/2022 before the Civil Court at Nagpur. The Appellants would contend that the cheques issued by the purchasers of the property toward the sale considerations were all dishonoured and therefore, there is no payment, and the sale deed without consideration would render it void or voidable. The Appellants, therefore, seek the set aside the impugned order and grant relief to the Appellants concerning the taking over possession of the property and as against the confirmation of the sale of the property which has already taken place as early as 13.03.2024.
3. Heard the Ld. Counsel appearing for the Appellants as also the Ld. Counsel appearing for the 1stRespondent bank. The Ld. Counsel appearing for the bank submits that the possession of the property has already been taken and that the present appeal shall become infructuous. The Ld. Counsel appearing for the Appellants would contend that there is also a prayer against the confirmation of the sale and therefore, at least the relief to that extent may be granted in favour of the Appellants. From the impugned order, it is very clear that the sale is subject to the ultimate decision to be taken in the S.A. In the earlier filed by the Appellants, there was an order passed by this Tribunal directing the D.R.T. to dispose of S.A. as expeditiously as possible at any rate within three months. The Ld. Counsel appearing for the Respondent bank submits that the Appellants have
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been protracting the matter by filing the applications regularly and therefore, S.A. could not be disposed of. The Counsel undertakes that the S.A. itself can be disposed of and validity of the sale can also be determined in that S.A. The main objection which is raised by the Appellants concerning the sale is that there is a violation of Rule 8
(6) of the Security Interest (Enforcement) Rules 2002 which required the encumbrance on the property to be mentioned and the auction purchaser caution about the litigation which is pending concerning the property. It is pointed out that the sale notice neither mentioned the filing of the S.A. nor mentioned the pendency of the civil suit and therefore, there is a clear violation of the rules which would render the sale invalid.
4. Given the specific finding in the impugned order that the sale if conducted would be subject to the ultimate decision taken in the S.A. the Appellants are at liberty to press for relief in the S.A. and get the sale set aside in case there is any violation of the rule and therefore, the Appellants need not be protected this stage by such an order in the appeal. It is also pertinent to note as pointed out that the Ld. Counsel appearing for the Respondent that the alleged registered sale concerning the property was executed on 17.10.2016 and the Appellants did not take any action about the claim of the sale consideration which was unpaid till they filed a civil suit on 20.01.2022 when the loan account was classified as Non-Performing Assets (NPA).
5. Taking into consideration the entire circumstance, I find that the Appellants are not entitled to any interim relief to this appeal,
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and in fact, the appeal itself can be disposed of with the direction to the D.R.T. to dispose of the S.A., which has already been directed in another appeal. The fact that the sale has been confirmed is not going to effect because in case the Appellants succeed in establishing that the sale is irregular it can be set aside.
With these observations, the Application as well as the Misc. appeal are disposed of.
Sd/-
Chairperson
psa-28
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