Decided on December 03,2004



K.J.Paratwar, - (1.) THESE two appeals under Section 17 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short Securitization Act) involve common questions of facts and law and are, therefore, being disposed of by common judgment.
(2.) The subject matter of the appeals is property being Layout Plot No. 30 admeasuring 2534 sq. ft. along with construction standing thereon, out of Field Survey No. 35/2 of Mouza Umri, Akola, out of Nazul Sheet No. 81, Nazul Plot No. 7 in Vidyanagar Co-operative Housing Society. The respondent No. 1 is the lender who according to it had granted certain credit facility to appellant No. 1 for which appellant Nos. 2 to 5 and respondent Nos. 3 to 6 only stood sureties but had created mortgage of their respective properties in Order to secure the credit facility.
(3.) ON 3.7.2003 respondent No. 2 issued notice under Section 13(2) of Securitization Act to the appellants and respondent Nos. 3 to 6 calling upon them to pay the outstandings in cash credit facility account No. 10 and account No. 37 respectively of Rs. 53,30,875/- and Rs. 40,82,8457- with interest thereupon and expenses. ON behalf of the appellants, reply came to be given by notice dated 21.7.2003 inter alia denying to have taken the credit facility and contending that the same was taken by Shyamlal Satyanarayan Lohiya, a registered partnership firm of which respondent Nos. 3 to 6 are partners. It is stated that there is collusion between the respondent Nos. 1 and 2 on one hand and respondent Nos. 3 to 6 on the other hand. Certain facts have been averred for pointing out that cash credit was in fact obtained by the Shyamlal Satyanarayan Lohiya, a registered partnership firm, which since having no bearing in this matter are not stated. The creation of security and execution of mortgage deed was denied. ON 13.1.2004, the respondent No. 2 gave another notice stating that a possession was taken and calling upon the appellants and respondent Nos. 3 to 6 to pay the outstanding amount along with interest and expenses within 30 days. The Bank did not take possession of the secured asset. Yet the respondent Nos. 1 and 2 are proceeding on said premises and have called tenders, which is illegal more so when the deed of mortgage is not legal since stamp duty of inadequate amount and the concerned authorities have impounded the document. The respondent Nos. l and 2 are thus misusing the powers and flouting the law which is why these appeals are filed.;

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