MUMTAZ SHAH NAWAZ SAKARWALA Vs. BOMBAY MERCANTILE CO OPERATIVE BANK LTD
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) THE Bungalow called as 'Shivsundaram' Outhouse situated at Lonavala, Taluka Mawal, Distt. Pune is subject matter of this application under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SRFAESI Act,').
(2.) By notice dated 10.2.2005 under Section 13(2) of the SRFAESI Act, the applicant called upon respondent Nos. 2 to 4 to pay Rs. 9,42,42,020/- with interest from 1.2.2005. The respondent Nos. 2 to 4 did not make payment. The Bank therefore took possession (symbolic) of the Bungalow on 17.11.2005. It is this act of taking possession of the Bank which has aggrieved the applicants on the ground that the applicants are the owners of the Bungalow and that they have never created mortgage of the same. Their contention is that these applicants and one Mrs. Jennifer Upletawala had purchased the property by registered deed of conveyance dated 9.4.1987 from respondent No. 4. Said Mrs. Jennifer Upletawala by deed of release dated 13.6.2005 has released her 1/3rd undivided share in the property in favour of the applicants. The applicants thus are owners of the property. The applicants after coming to know the taking of possession have by various letters informed the Bank the facts but, the Bank admitted that the applicants have not created mortgage has not relented. Therefore this securitisation application for the declaration that the action under SRFAESI Act is illegal and also for compensation of Rs. 25 lakh.
Vide reply (Exh. 11) in the form of affidavit of Mr. A.G. A.K. Solanki, AGM, the respondent No. 1 has contended that the respondent No. 4 had created equitable mortgage, by deposit of title deeds, of the property for securing the loan/credit facilities of the defendant No. 1. The respondent No. 1 has stated facts about the grant of the loan/facilities to respondent No. 2 aggregating to Rs. 302 lakh. The Indenture of Conveyance dated 9.4.1987 is said to be sham and colourable document as is apparent from the fact that the original title deeds continued to be with respondent No. 4 who deposited with the applicants as security. The rest of the contentions are irrelevant for the purpose of this application.
(3.) I have heard arguments of learned Counsel representing the rival parties. The learned Counsel for the applicants have placed on record written submission at Exh. 15. I have gone through the copies of the documents to which the learned Counsel for the parties invited my attention.;
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