- (1.) Mr. Deepak Roshan, learned Counsel appearing for the Petitioner referred to Clause-8 of the Tripartite Agreement entered into between him, (Flat owner), the bank and the builder, which reads as follows: 8. The Developer/Promoter hereby expressly gives consent to the effect that the Bank shall have lien on the aforesaid flat/ apartment and the Borrower may furnish the said flat as a security for the loan to be obtained by him from the bank and he may create a mortgage of the same in favour of the Bank.
(2.) He submitted that only lien was created which is exempted under Section 31 of the SARFAESI Act. He further submitted that installment amount has been deducted from the salary of the Petitioner by his employer-Cognex Pharma Ltd., from the month of April 2007 to February, 2010, which will appear from his pay slips but the bank has not updated the Pass-Book, which could support the said contention that installment were paid by the Petitioner through his employer.
(3.) On the other hand. Mr. R.R. Nath, learned Counsel appearing for the bank, submitted that the employer of the Petitioner has not deposited the installments with the bank and the bank can supply the statement of accounts to the Petitioner in support of such contention. He also referred to Section 2 (zf) of SARFAESI Act, which reads as follows: Security Interest" means right title and interest of any kind whatsoever upon property created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other than those specified in Section 31 He submitted that as per the aforesaid Clause-8 of the Tripartite Agreement, Developer/Promoter consented that the bank shall have lien on the flat/apartment but the Petitioner being borrower was required to mortgage the said flat with the bank as security for the loan, which he failed to do and, therefore, he cannot be allowed to raise the said contentions. He further submitted that if the Petitioner is ready to pay the up-to-date outstanding as per the calculation of the bank and if the flat in question is mortgaged by the Petitioner, the bank may restructure the loan.;