Decided on June 28,2005



Pratibha Upasani, - (1.) THIS appeal is filed by the appellant/applicant Bank of India being aggrieved by the judgment and order dated 14th December, 2004 passed by the learned Presiding Officer of D.R.T. II, Mumbai in appeal No, 101 of 2004, By the impugned judgment and order, the learned Presiding Officer allowed the appeal filed by the appellants Mrs. Gunvantiben Mehta and Mr, Bhawarlal Mehta under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for the sake of brevity hereinafter to be referred to as the SRFAESI Act) and ordered the respondent Bank to immediately re-deliver possession of the flat to the appellants. The learned Presiding Officer also ordered the Bank to pay compensation to the appellants at the rate of Rs. 5007- per day from the date of order till delivery of the flat. Being aggrieved, the present appeal is filed by the Bank under Section 18 of the SRFAESI Act.
(2.) Few facts, which are required to be stated, are as follows: Case of the appellants in their appeal before the D.R.T. was that they purchased the flat (of which, possession was taken by the Bank under Section 13(4) of the SRFAESI Act) in question for Rs. 4.85 lacs by agreement dated 3rd April, 1992 from one Mathurdas Keshavji Patel. Pursuant thereto, they were admitted as members of the housing society and were holding five fully paid-up shares bearing Nos. 121 to 125 dated 15th January, 1988 under share certificate No. 25 of the flat and shares bearing Nos. 566 to 570 dated 31st December, 1988 under share certificate No. 114 in respect of garage. They were in possession of the property. They were regularly paying maintenance bills to the society. The appellants' case before the D.R.T. was that they did not take any loan at any time from the Bank and had not deposited title deeds of the flat much less for creation of equitable mortgage as security either for themselves or for others. A doubt was expressed by them that some one had forged the title documents (agreement of sale and the share certificates) and obtained loan of Rs. 10 lacs from the Bank in the name of the appellant No. 1 Mrs. Gunvantiben Mehta. The Bank filed Original Application No. 77 of 2003 for recovery of certain amount against the appellant No. 1 as borrower and one Mr. Praful Shah as guarantor alleging that the appellant No. 1 had taken loan of Rs. 10 lacs and had deposited title deeds of the flat in question for creation of equitable mortgage to secure the loan. Case of the appellants/respondents herein, before the D.R.T. was that the appellants were in possession of the original agreement and share certificates and that the documents relied upon the Bank were apparently forged. They set out differences in the original documents and the forged documents and pointed out that the Bank could have easily noticed that the documents lodged with it were ex facie forged. All these contentions were taken by the appellants in their written statement of the Original Application, yet the Bank issued notices under the SRFAESI Act on 9th June, 2004 and 16th June, 2004 and took forcible possession with the help of police on 30th September, 2004 when the appellants were out of the flat in connection with door-to-door jewellery business. The Bank refused to restore the possession when so requested by letter dated 5th October, 2004. It was therefore the case of the appellants before the D.R.T. that the action of the Bank was illegal and high-handed. On this ground, it was prayed that firstly the Bank be directed to restore the possession of the flat and secondly, compensation at the rate of Rs. 10,000/- per day for illegal, unlawful and forcible dispossession of the flat be awarded to them. The Bank filed reply in the nature of an affidavit of their officer and contested the appeal. According to the Bank, the appellant No. 1 was the sole owner of the flat and the name board of the society also indicated a single name. It was contended that the appellant No. 1 had deposited agreement of sale, dated 23rd May, 1996 along with share certificates for creation of mortgage to secure the loan. According to the Bank, recourse to the SRFAESI Act and taking possession thereunder was legal, They prayed for dismissal of the appeal.
(3.) THE appellants filed a rejoinder and reiterated whatever they had stated in the written statement.;

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