Suchita Sanjay Bodhani v. State Bank of India & Ors.

Suchita Sanjay Bodhani

…Appellant

…Respondent

Case No: Appeal No. 262/2009

Date of Judgement: 28 /04/2023

Judges:

Mr Justice Ashok Menon, Chairperson

For Appellant: Mr V. V. Chandavale along with Mr Vishal Tambe, Advocate.

For Respondent: None.

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Facts:

The case involves an appeal (No. 262/2009) filed by Suchita Sanjay Bodhani (the Appellant) against an order dated 28/08/2009 by the Debts Recovery Tribunal, Pune (DRT), dismissing her Securitisation Application (S.A.) No. 62/2008. The Appellant is neither the borrower nor the guarantor/mortgagor. She claims to be the owner in possession of Flat No. 5, located on the 2nd stilt floor of Prerana Apartments, constructed on property CTS No. 399, Narayan Peth, Pune (the subject flat). The S.A. was filed under Section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) by State Bank of India (SBI) (the 1st Respondent), the successor of State Bank of Hyderabad, against the borrowers (Respondent Nos. 6 and 7), who had defaulted on a loan secured by mortgaging the subject flat. The property (CTS No. 399, Narayan Peth) was initially owned by the Deshmukh family, who granted development rights to Prerana Home Private Limited (the 2nd Respondent) through an agreement dated 23/05/1995, along with a Deed of License and a General Power of Attorney. Prerana Home Private Limited, represented by the 3rd Respondent as its Director, demolished the existing structure and obtained permission from the Pune Municipal Corporation to construct a new apartment building (Commencement Certificate No. 4757 issued on 06/08/2003). On 26/06/1998, the developer (2nd Respondent) executed an agreement of sale under Section 4 of the Maharashtra Ownership Flats (Regulation of the promotion of the construction, sale, management and transfer) Act (MOFA) in favor of Respondent Nos. 4 and 5, who were existing tenants. The Appellant approached Respondent Nos. 4 and 5 and entered into an agreement to purchase the flat from them for ₹15 lakhs, which was registered on 10/07/2008. After making the payment, Respondent Nos. 4 and 5 executed a notarized possession note on 10/07/2008, handing over possession of the flat to the Appellant. Due to the default in payment of the debt by Respondent Nos. 6 and 7, the bank (1st Respondent) served a notice under Section 13(4) of the SARFAESI Act on 10/09/2008 and took symbolic possession of the subject flat.

Arguments by the Appellant:

The Appellant argued that Respondent Nos. 4 and 5 had sold the subject flat exclusively to her and handed over possession. Respondent Nos. 6 and 7 had no right, title, or interest over the subject flat. The Appellant issued a public notice through her advocate in the Daily Prabhat newspaper, inviting objections from persons claiming any right over the subject flat. No objections were received, and she proceeded as a bona fide purchaser for value without notice of any charge over the property. The Appellant approached the DRT to quash the notice under Section 13(4) issued by the 1st Respondent (SBI) since she was aggrieved by it.

Arguments by the 1st Respondent (SBI):

Arguments by Respondent Nos. 4 and 5:

Cases Cited:

a) Abdulla Ahmed vs. Animendra Kissen Mitter AIR 1950 SC 15: Extrinsic evidence would determine the effect of an instrument where there remains a doubt as to its true meaning.

Sections and Laws Referred:

Section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act): Under which the Securitisation Application (S.A.) was filed by SBI.

Section 13(4) of the SARFAESI Act: Under which the bank (SBI) served a notice and took symbolic possession of the subject flat.

Section 4 of the Maharashtra Ownership Flats (Regulation of the promotion of the construction, sale, management and transfer) Act (MOFA): Under which the agreement of sale was executed between the developer and Respondent Nos. 4 and 5.

The court found no reason to interfere with the findings of the DRT in the impugned order and dismissed the appeal, holding that the Appellant had failed to prove her title over the subject flat, which was different from the one sold to her by Respondent Nos. 4 and 5.