FARIS FATHIMA Vs. BANK OF BARODA
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) MR. V.S.Ravi,--Brief averments made to the memorandum of appeal are as follows: The respondent Bank granted a housing loan to one MR. S.M. Akbar Kamal for purchase of Flat No. 6, 'T', Shruthi Apartment, AKS Shruthi Apartment, 63 K.K. Road, Ambattur, Chennai-600 053. In consideration of the loan granted by the respondent-Bank, the borrower mortgaged the said flat to and in favour of the respondent-Bank. The said Akbar Kamal leased out the said flat to the appellant on 5.12.2003 for a period of 3 years. The respondent Bank has paid Rs. 75,000/- to the borrower and the same shall be refunded after the expiry of the lease. The rent is adjusted towards interest on amount of Rs. 75,000/-. The respondent Bank has issued a Notice under Section 13(2) of the SRFAESI Act to the borrower. Further, the respondent Bank has issued Possession Notice on 19.7.2005. The appellant is a bona fide and lawful tenant, and he has been living with his family for more than 2 years. The respondent-Bank has no authority to evict the appellant without due process of law. Hence, the appellant has prayed to pass an order, directing the respondent Bank not to take forcible possession of the schedule mentioned property, without due process of law.
(2.) Brief averments made in the counter affidavit of the respondent Bank are as follows : The appeal filed by the appellant is not maintainable neither in law nor on facts. The prayer of the appellant against taking possession of the secured asset is not maintainable in law. The appeal has been filed without impleading the borrower, who is the owner of the mortgaged property/secured asset, hence, the appeal is also liable to be dismissed for non-joinder of necessary parties. The appellant has filed the above application in collusion with the borrower by stepping into his shoes. The appellant has no right to challenge the proceedings under SRFAESI Act. The lease agreement, entered into between the borrower and the appellant is not valid in the eye of law for the reasons that it is not stamped in terms of Stamp Act. Moreover, the alleged lease agreement was for a period of three years and it needs to be registered under the Registration Act and after paying necessary stamp duty. The loan agreement for housing loan, dated 10.10.2003, was executed by the said Akbar Kamal. The said Akbar Kamal has mortgaged the property with the respondent Bank by deposit of title deeds. The said mortgaged property is the secured asset in the hands of the respondent Bank to enforce loan liability and to recover the dues. The equated monthly instalments agreed to be repaid by the said Akbar Kamal remains unpaid from the month of April, 2004. The respondent Bank has issued a notice demanding possession of secured asset to the borrower on 19.7.2005 and the same was acknowledged by him. In furtherance of the power conferred under Section 13(4) of the SRFAESI Act, the respondent Bank has every right to take possession of the secured asset. The above appeal is devoid of merits and law. Hence, the respondent Bank has requested to dismiss the appeal.
From the above mentioned averments of both sides, the following points arise for consideration/determination in the memorandum of appeal.
1. Whether the appellant is entitled to get an order, directing the respondent Bank not to take forcible possession of the schedule mentioned property without due process of law?
2. Whether the appeal has to be allowed, for the reasons stated in the memorandum of appeal?
(3.) ANALYSIS, discussion and findings with regard to the above mentioned points 1 and 2: The appellant, himself, has categorically admitted in the memorandum of appeal that said property has been mortgaged by the borrower, in favour of the respondent Bank and the respondent Bank granted housing loan to Mr. S.M. Akbar Kamal. Further, the respondent Bank, in the counter affidavit, has clearly stated that the borrower has not paid the equated monthly instalments from the month of Apri1, 2004, hence, the respondent Bank has issued Section 13(2) Notice on 4.2.2005 and Possession Notice on 10.7.2005. Along with reply, as Annexure XII and XIII, the respondent Bank has filed copies of the notice demanding possession and the acknowledgement card. It is found that only after the issuance of the notice demanding possession on 19.7.2005 by the respondent Bank to the borrower, the appellant had filed this appeal on 19.8.2006. In the memorandum of appeal, the appellant has enclosed copy of the 19.7.2005 Notice demanding possession also. Consequently only, the respondent Bank has clearly stated in the reply statement, that the collusion nature of the appeal is very much explicit by the fact that this appeal is filed based on the notice issued by the respondent Bank to the borrower.;
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