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2016 (11) TMI 1315 - HC - Indian LawsRestraining the Bank from proceeding further with eauction with respect to the mortgaged property in question - Held that:- Though the original applicant claims to have purchased the mortgaged property in question by registered sale deed on 25.04.2014 and on payment of sale consideration and though according to him when the Bank took the actual, physical possession on 12.06.2014 pursuant to the order psased by the learned District Magistrate under Section 14 of the SARFAESI Act, from the panchnama it appears that at the time when the Bank Officers went to take the possession of the mortgaged property in question, in the month of February 2016, wife of the original owner / mortgagor was present in the bungalow / mortgaged property and the original applicant was not in possession of the mortgaged property in question. From the panchnama it appears that at that time the wife of the original mortgagor after seeing the officers who had came to take the possession ran away. That thereafter the Bank had taken the actual, physical possession by drawing the panchnama and doing the videography. From the aforesaid it can be said that a systematic fraud has been committed by the mortgagor in connivance with the original applicant with malafide intention only with a view to dupe the legitimate dues of the Bank and the realization of large sum of amount by the Bank to the extent of ₹ 3,46,55,433 + further interest charges etc. It is required to be noted that even the original borrower / mortgagor, M/s. Shukan Palace Infrastructure and its partners have duped so many investors who have purchased the residential bungalows in the scheme viz. Shukan Palace – I, Ghatlodiya, Ahmedabad. The possession was taken over from the wife of the mortgagor / mortgagor and not from the original applicant. The aforesaid has not been appreciated by the learned Tribunal while passing the impugned order. Considering the above Tribunal has materially erred in passing the impugned order restraining the Bank from proceeding further with eauction of the mortgaged property which was mortgaged by the mortgagor while taking the huge loan / credit / financial assistance. So far as the submission on behalf of the original applicant that as against the impugned order the petitioner Bank has a statutory remedy available by way of appeal before the Debts Recovery Tribunal, Mumbai and therefore, the present petition may not be entertained is concerned, at the outset it is required to be noted that as such the post of Member/s of Debts Recovery Appellate Tribunal, Mumbai is vacant and there is no incumbent and therefore, the petitioner is justified in approaching this Court. Even otherwise considering the impugned order passed by the learned Tribunal and as observed hereinabove the learned Tribunal has exceeded in its jurisdiction in entertaining the securitization application and passing the impugned order at the instance of the original applicant, the transaction in whose favour is a nullity, we are of the opinion that this is a fit case to entertain the petition and exercise the powers under Article 226 of the Constitution of India. Impugned order passed by the learned Debts Recovery Tribunal – I, Ahmedabad in Securitization Application is hereby quashed and set aside and the petitioner Bank is permitted to proceed ahead with eauction of the mortgaged property in question viz. Bungalow No.15, Shukan Palace – I, Ghatlodiya, Ahmedabad. Rule is made absolute to the aforesaid extent. No costs.
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