Shri Pandurang Hasha Patil & Ors v. Bank of India & Ors.

…Appellant

…Respondent

Case No: Misc. Appeal No. 99/2023

Date of Judgement: 11/09/2023

Judges:

Mr Justice Ashok Menon, Chairperson

For Appellant: Ms Aarti Suvarna, Advocate.

For Respondent: An advocate for the Appellant is present.

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Facts

Arguments by the Appellants

Arguments by Respondent 1 (Bank of India)

There is no registered document concerning the subject flat executed in favor of the Appellants or their predecessor in interest. The property has been sold to Respondent 5 in 2015 through a registered sale deed and mortgaged to the bank for a loan. On default of payment, the bank is within its right to proceed against the secured asset under the SARFAESI Act. Although the Appellants have approached a Civil Court for relief against the Respondents, no favorable order has been obtained by them.

Cases Cited

Deenadayalan vs. N.Satheesh Kumar and Ors. (Madras High Court):

    • When the applicant is neither a borrower nor a guarantor, and it is prima facie apparent from the record that the relief claimed is incapable of being decided by the DRT under Section 17 of the SARFAESI Act, the civil rights can be decided by the Civil Court.

    • When a development agreement is eloquent of substantial rights created in favor of the applicant, the said document is compulsorily registrable under Section 17 of the Registration Act.
    • An unregistered development agreement creating substantial rights is inadmissible in evidence.

    • Where the civil rights of persons other than the borrower or guarantor are involved, and it is prima facie apparent from the record that the relief claimed is incapable of being decided by the DRT under Section 17 of the DRT Act, 1993 read with Sections 13 and 17 of the SARFAESI Act, the Civil Court would have jurisdiction.

    • Sections and Laws Referred

    Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002

    Debt Recovery Tribunal (DRT) Act, 1993

      • Registration Act

          • Indian Penal Code

              • Sections 420 (Cheating), 464 (Making a false document), 465 (Punishment for forgery), 466 (Forgery of record of Court or of public register, etc.), 467 (Forgery of valuable security, will, etc.), and 34 (Acts done by several persons in furtherance of common intention)