Decided on March 21,2014

J.S. Arora Appellant


Ranjit Singh, J. (Chairperson) - (1.) THROUGH this appeal, the appellant J.S. Arora and others have impugned the order passed by DRT -I, Delhi, whereby their S.A. has been dismissed. Appellants are subsequent purchasers of the property over which the respondent bank had a charge when they purchased the same. Their right therefore has to be examined in the light of this position.
(2.) RESPONDENT No. 1 bank granted Working Capital facility of Rs. 375 lacs and a Term Loan facility of Rs. 95 lacs to respondent No. 2 Mr.Hardeep Singh Thapar on 23.12.2005. Respondents 3 and 4 gave gurantee for these loan facilities. The loan became Non Performing Asset (NPA) on 30.6.2003, when the bank filed O.A. No. 44/2008 on 18.8.2008 for recovery of Rs. 1,32,96,949,46. A sum of Rs. 33,39,037/ - was allegedly outstanding in the Term Loan account and Rs. 99,57,912.46 in the Cash Credit account. The Cash Credit account was statedly secured by mortgage of property No. K -H, Hauz Khas, New Delhi whereas the Term Loan was secured by the mortgage of property No. 47 -B, Kalu Sarai, Hauz Khas, New Delhi. During May 2007, respondents 2 to 4 approached the appellants through a broker for sale of Kalu Sarai property comprising first, second and third floors with roof rights. It appears that the deal was struck for a total consideration of Rs. 95 lacs. Appellants state to have paid part of consideration of Rs. 5 lacs through cheque dated 13.5.2007 and another Rs. 15 lacs through cheque dated 31.5.2007. Appellants would allege that respondents 2 to 4 never told them that the said property was mortgaged with respondent No. 1 bank. Subsequently, however, respondent No. 2 introduced appellant No. 1 to the AGM and Manager of the respondent bank for showing the title deeds and also for getting loan from the said bank for buying the property. Respondent No. 1 bank sanctioned a loan of Rs. 95 lacs to the appellants but refused to disburse the same on the ground that respondent No. 2 had to clear the outstanding dues of the bank. As per appellants, on 9.6.2007, they have borrowed money from Citi Bank and issued three cheques, two for Rs. 22 lacs each and the third cheque of Rs. 19 lacs, in favour of respondent No. 2. Appellant had made an endorsement on the cheques that these were for the purchase of the first, second and third floors of the Kalu Sarai property. On 30.10.2007, three separate sale deeds were executed by respondent No. 2 qua the Kalu Sarai property in favour of the appellants. On that date, respondent No. 2 also gave an undertaking in favour of the appellants.
(3.) RESPONDENT No. 1 bank issued a notice under section 13(2) of the SARFAESI Act on 12.2.2008. Copy of this notice was served on appellant No. 1 as well, which contained an averment that the search carried out in the office of Sub -Registrar had revealed that the Kalu Sarai property had been sold by respondent No. 2 to the appellants. The appellants would urge that notice under section 13(2) of the SARFAESI Act was totally silent as and when the account became NPA. Reference is made to the documents on record of the O.A., which would show that the account became NPA on 30.6.2008 and it is accordingly urged that notice under section 13(2) of the SARFAESI Act issued on 12.2.2008 would be bad in law, as on the said date of notice the loan account had hot become NPA.;

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