Decided on October 21,2005



Shrikant G.Kulkarni, - (1.) THE present application under Section 17 of the SRFAESI Act, 2002 is filed against opponent No. 1 Bank for taking possession of the building situated at Section No. 46/1-B+2-B known as 'Land Mark Centre' situated at Parvati, Pune Satara Road, Taluka and District Pune, more particularly described in para 3.1 of the application and herein referred to as secured property for short. Mrs. Asha Muralidhar Todkar, Mr. Sudhir Muralidhar Todkar, Mr. Avinash Muralidhar Todkar and Muralidhar Todkar Pvt. Ltd. through its director Shri Muralidhar Pandurang Todkar decided to develop the secured properties jointly and accordingly they agreed to carry out development by joint venture known as Todkar Associates. As per the said joint venture Mrs. Asha Muralidhar Todkar, Mr. Sudhir Muralidhar Todkar, Mr. Avinash Muralidhar Todkar have contributed the rights of development of their respective portion out of properly which is required by them and Muralidhar Todkar Pvt. Ltd. company has contributed a TDR of 1100.14 sq. metres in the said joint venture dated 20th July, 2001. THE secured property was mortgaged in favour of the opponents Gultekdi, Market Yard Branch, Pune by registered mortgage deed. Pursuant to Board Resolution No. 5-A, the loan of Rs. 1,35 crores was granted to the applicants by the opponent Bank which was project loan for the development of the secured property. It was specifically agreed between the parties and the moratorium period was given to the 'applicant till 31st March, 2004. It was further agreed that the re-payment of the loan would be by remittance of 20% of the amount by the developer from the sale proceeds of the units situated in the said building and from each and every booking. It was prime condition of the entire project loan. It was a prime condition that the mortgagee was empowered to have secured property sold through the competent Court and realize the money. THE loan amount was to be used by then and entirely for the project. Contrary to the said terms, the opponent issued various letters to the applicant for recovery of the alleged dues. THE opponent tried to pressurize the applicant. THE applicant deposited amount of Rs. 1 crore in the Co-operative Court and Cooperative Court No. 2 granted status quo till further orders on 10th March, 2005 in the dispute bearing No. 7/2005. Despite the said order and concealing material facts, opponent issued possession notice dated 26th August, 2005 under the SRFAESI Act, 2002 and published in two newspapers. THE opponent had no legal right to proceed against the applicant in respect of the entire property. Figures shown as due were wrong. Statement of account was not supplied to the applicants. According to the applicant, action taken by the opponent is illegal as the possession notice dated 26th August, 2005 was illegal. It lacks details of amount outstanding. THEre is suppression of facts regarding the proceedings pending in the Co-operative Court and the status quo passed therein in dispute No. 7/2005. THE Bank Manager and securitization officer arc the same. Details of payment were suppressed. THE applicants have paid more amount than the condition incorporated in the mortgage. Recourse to the SRFAESI Act, 2002 was improper, THE opponent accepted before the Co-operative Court that it would accept 25% proceeds of the premises being constructed by the applicant. THE applicant paid Rs. 57 lacs in the loan account before filing the dispute and further paid Rs. 1 crore in the Co-operative Court. THE said fact was concealed. Possession notice was illegal as the amount shown therein is incorrect. THE re-payment is fully secured. THEre is no ill-intention on the part of the applicants to evade the loan. Because of the various news items published in the newspapers, the sale of the premises in the said building have been disrupted. Levy of interest was incorrect. THErefore, the dues are swollen. THE applicants had undertaken not to sell the entire 6th floor of the building till the disposal of the dispute or the adjudication of the statement of accounts by the Court. THE present rate is Rs. 2,600/- per sq. ft. and amount outstanding can be paid off by selling 6th floor. Re-payment was hampered because of the litigation. No prejudice would be caused to the opponent if the undertaking not to dispose of 6th floor is accepted. THE applicant, therefore, prays for quashing the action taken by the opponent Bank.
(2.) The opponent appeared and filed written statement at Exhibit 13 inter alia contending that the application is misconceived. According to the applicant, it had through its authorized officer issued a notice under Section 13(2) of the SRFAESI Act, 2002 on 8lh February, 2005 demanding Rs. 1,51,18,984/-. The loan accounts were not challenged by the applicant nor the amount of loan disbursed and interest thereon was challenged by the applicant at any point of time. Further authorized officer of opponent Bank had demanded the same amount with penal interest and incidental charges and costs in the said notice. It was informed to the applicants that on failure to liquidate the dues on the part of the applicants within 60 days, the opponent would exercise action under Section 13(4) of the SRFAESI Act, 2002. The said notice was not at all challenged by the applicants. As per the said Act the authorized officer of the opponent Bank had issued a possession notice dated 26th August, 2005 as per Appendix IV [Rule 8(1)] Accordingly possession of the property was taken. The opponent challenges description of the property mentioned in the application. Correct description is: All that piece and parcel of the plot No. 2 admeasuring about 2602 square metres at Section No. 46/1B+2/B, Kaka Halwai Estate, Parvati Pune-411009 along with the total construction admeasuring about 73,000.00 sq. ft. thereon in the project named as 'Landmark Centre commercial complex'. It denies that the loan was repaid in the manner stated by the applicants and that too out of sale proceeds. According to the opponent, till date the applicants did not inform or took permission of the opponent in writing before selling the units in the secured property. The list of the purchasers has also not been furnished to the opponent. According to it, previous permission of the opponent Bank and deposit of 25% of the total consideration was the main condition in the deed of mortgage. The applicant committed breach thereof. The authorized officer was entitled to demand the outstanding amounts. The applicants wrongly made alleged payment of Rs. 60 lacs. According to it, they had deposited Rs. 53 lacs and not more in dispute No. 7/2005. According to the opponent, after notice under Section 13(2) dispute No. 7/2005 was filed and undertaking not to sell 6th floor was given before the Cooperative Court. The applicant deposited amount of Rs. 1 crore in the loan account on 24th February, 2005. The applicants are blaming the opponent unnecessarily. The applicants were well aware of the terms and conditions of the mortgage. The sale instances were not informed to the opponent. The applicants failed to liquidate the dues. Therefore, action taken by the opponent is legal. No excess amount was demanded from the applicant and applicant was informed about the amount received by the opponent. The applicants never disputed method of accounting from the outstanding. It denies to have committed illegalities as alleged by the applicant. Dispute No. 7/2005 has no bearing in the present proceeding. It denies that 6th floor of the building is worth Rs. 1,75 crore. According to it, it is incomplete and offer made by the applicant is incorrect. It, therefore, prays for dismissal of the application. By interim order, attachment of the major portion of the property was directed to be vacated but for the 6th floor.
(3.) I have heard Mr. S.V. Kshirsagar, the learned Advocate appearing on behalf of the applicant and Mr. Subodh Shah the learned Advocate appearing on behalf of the opponent in extenso.;

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