TMI Blog2016 (11) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auction sale to the disputed bungalow in question scheduled to be conducted on 25.03.2016. [2.1] Special Civil Application No.17901/2015 has been preferred by the respective petitioners owners and occupiers of residential bungalows situated at Shukan Palace I, Science City, Ahmedabad for an appropriate writ, direction and order to quash and set aside the impugned order dated 31.08.2015 passed by the learned Tribunal below Exh.T/18 (AnnexureK) as well as the order dated 31.08.2015 passed by the learned Tribunal in Original Application No.232/2014 (AnnexureL) by which the application submitted by the petitioners for joining them as party respondent in Original Application No.232/2014 has been rejected. [3.0] Facts leading to the Special Civil Application No.7030/2016 in nutshell are as under: [3.1] That so far as Special Civil Application No.7030/2016 is concerned, the dispute is with respect to Bungalow No.15, Shukan PalaceI, Ghatlodiya, Ahmedabad (hereinafter referred to as mortgaged property ) which was mortgaged by the original owners with the petitioner Bank while availing cash credit / loan / advance. It appears that while availing the cash credit / loan / advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the provisions of the SARFAESI Act and after the proceedings under the SARFAESI Act were initiated and therefore, the sale deed / transaction in favour of the respondent No.1 original application is nullity. The application was also opposed on the ground that the original owners of mortgaged property with a view to dupe the dues of the Bank to the extent of ₹ 3,46,55,433 + further interest charges had executed the sale deed in favour of the respondent No.1 herein original applicant No.1. It was also submitted that earlier at no point of time the borrowers / mortgagor did not question / challenge the securitization proceedings till even the actual possession was taken over pursuant to the order passed by the learned Tribunal. Despite the above by impugned order the learned Tribunal has passed the impugned order and has granted the interim relief restraining the Bank from proceeding further with the auction with respect to the mortgaged property in question. [3.2] Feeling aggrieved and dissatisfied with the impugned order restraining the Bank from proceeding further with eauction with respect to the mortgaged property in question, the Bank has preferred the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borrower / mortgagor was in possession and in the month of February 2016 when the actual and physical possession was taken over by the Bank pursuant to the order passed by the learned District Magistrate under Section 14 of the SARFAESI Act, the original applicant though alleged to have purchased the mortgaged property on 25.04.2014 was not in possession. [4.2] It is submitted that the learned Tribunal has materially erred in not properly appreciating the fact that alleged transaction in favour of the original applicant was with the malafide intention to defeat the lawful right of the Bank of realization of the security of outstanding amount of ₹ 3,46,55,433 + interest charges etc. [4.3] It is further submitted by Shri Desai, learned advocate appearing on behalf of the petitioner that even from considering the alleged registered sale deed 25.04.2014 in favour of the original applicant it cannot be said that at the time of execution of registered sale deed any consideration was paid. It is submitted that though in the sale deed dated 25.04.2014 executed in favour of the original applicant it is mentioned that the consideration has been paid by cheques and full considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing possession by the Bank Officer and also with respect to the earlier notice issued under Section 13(2) of the SARFAESI Act pursuant to which an application under Section 14 was made to the District Magistrate to secure the possession. [5.1] Shri Mehta, learned advocate appearing on behalf of the respondent No.1 has submitted that the petitioner is a bonafide purchaser of the mortgaged property in question which he has purchased on payment of sale consideration. It is submitted that at the time when the alleged possession was taken by the Bank the original applicant was in possession and without issuing any notice to him the possession has been taken over which is absolutely illegal. [5.2] It is further submitted by Shri Mehta, learned advocate appearing on behalf of the respondent No.1 that even the order passed by the learned District Magistrate under Section 14 of the SARFAESI Act authorizing the petitioner Bank to take over the possession of the properly is absolutely illegal and against the decision of this Court. It is submitted that therefore the order dated 29.12.2015 passed by the District Magistrate authorizing the Bank to take the possession is a nullity and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with eauction of the mortgaged property in question that too at the instance of the original applicant whose transaction is a nullity, it is requested to exercise the powers under Article 226 of the Constitution of India. [6.2] Shri Desai, learned advocate appearing on behalf of the petitioner has also relied upon the decision of the Division Bench of Madras High Court in the case of Lakshmi Products vs. State Bank of India reported in 2007 AIR (Madras) 148 as well as the subsequent decision of the Division Bench of the Madras High Court in the case of P. Vinodh Kumar vs. Recovery Officer Debts Recovery Tribunal, Manager Indian Bank and D. Mohan reported in 2012 AIR (Madras) 46 in support of his submissions that the transaction / sale deed in favour of the original applicant which is admittedly after the Bank initiated the proceedings under Section 13 of the SARFAESI Act is a nullity. [7.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that the present is a glaring example of fraud committed by the mortgagor in connivance with the subsequent purchaser only with a view to dupe the realization of the legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reinabove and at the cost of repetition it is required to be noted that present securitization application has been preferred in the year 2015 challenging the notice under Section 13(2) of the SARFAESI Act, which was issued in month of January 2014, i.e. after a period of almost two years. [7.2] It is required to be noted that as per subsection (13) of Section 13 of the SARFAESI Act, any transaction by way of sale, lease or otherwise with respect to the secured assets referred to in notice under Section 13(2) of the SARFAESI Act, after the notice under Section 13(2) of the SARFAESI Act shall be void and a nullity. As per subsection (13) of Section 13 of the SARFAESI Act, no borrower shall after receipt of the notice referred to in subsection (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of the secured assets referred to in the notice, without prior written consent of the secured creditor). In the present case admittedly before entering into transaction in favour of the original applicant which is after the notice under Section 13(2) of the SARFAESI Act, prior written consent of the Bank secured creditor has not been ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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. [7.4] Considering the aforesaid facts and circumstances the learned 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. [7.5] Now, so far as the contention on behalf of the original applicant and the reliance placed upon the decision of the Hon ble Supreme Court in the case of Gangadhar Vishwanath Ranade (Supra) in support of his above submission that the Bank Officer / Bank had no jurisdiction to declare the transfer of property in favour of a third party to be void is concerned, on considering the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, Ghatlodiya, Ahmedabad. Rule is made absolute to the aforesaid extent. No costs. [9.0] Shri Majmudar, learned advocate appearing on behalf of the petitioners in Special Civil Application No.17901/2015 seeks permission to withdraw the Special Civil Application No.17901/2015 with a liberty to avail any other remedy that may be available to the petitioner at appropriate stage. Permission is, accordingly, granted. Special Civil Application No.17901/2015 is dismissed as withdrawn with above liberty. FURTHER ORDER At this stage, Shri Manav Mehta, learned advocate appearing on behalf of the respondent in Special Civil Application No.7030/2016 has requested to continue the interim order which was granted by the learned Tribunal. The prayer is opposed by Shri Pranav Desai, learned advocate appearing on behalf of the petitioner. However, in the facts and circumstances of the case and so as to enable the respondent to approach the higher Forum, interim order which was granted by the learned Tribunal, which is not set aside, is hereby directed to continue till 23.10.2016. However, the respondent is also directed to maintain status quo . Meaning thereby, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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