SMT KANTA DEVI vs ARCIL on 31 August 2019

FINAL ORDER

All the aforesaid seven connected matters i.e. SA No. 648/2012, Appeal No. 62/2017, SA No. 30/2013, SA No. 196/2013, SA No. 197/2013, SA No. 198/2013 & SA No. 200/2013 are being decided together as the common questions of law & facts are involved in these matters.

(i) . SA No. 648/2012 (Smt. Kanta Devi Vs. Punjab & Sind Bank)

1. The present Securitisation Application has been filed on behalf of the applicant herein / Smt. Kanta Devi under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,

(hereinafter referred to `SARFAESI Act 2002) praying therein to declare the proceedings under Section 14(2) of the SARFAESI Act 2002 as null and void qua the applicant’s property bearing no. H. No. 455, First Floor, Pocket-4 Sector – 22, Rohini, Delhi – 85 and restore the possession of the property bearing no. H. No. 455, Pocket – 4, Sector-22, Rohini, Delhi – 85 of the applicant.

2. The brief facts of the case are that the applicant herein is owner-in-possession of the property bearing no. H. No. 455, First Floor, Pocket- 4, Sector-22, Rohini, Delhi – 85 and she had purchased the property vide registered Sale Deed dated 05.01.2005 which was duly registered with the Sub-Registrar, SR-VI, Delhi from Smt. Nitu w/o Sh Vijay. It is also pertinent to note the applicant herein had taken Home Loan against the property- in-question from the respondent no. 3 / SBI and the loan was sanctioned by the SBI, after due verification of the property title on dated 31.12.2004. The respondent no. 3 had taken all the title documents of the property-in-question of the applicant with them. It is also stated that the applicant, while purchasing the property-in-question, had taken the previous original deeds as was in the possession of the seller i.e. in favour of Sh. Shokender Kumar s/o Sh. Jai Pal Singh, a Conveyance Deed dated 27.06.2003, which is duly registered with Sub Registrar SR-VI, Delhi, executed by Lease Administrative Office, Rohini, Delhi Development Authority (DDA) and the said Sh. Shokender Kumar had sold the entire First Floor to

Smt. Nitu, by virtue of Sale Deed dated 20.09.2003, duly registered with Sub-Registrar SR-VI, Delhi along with the Allotment Letter dated 05.10.1989, Possession Letter dated 29.10.2012, Possession Slip dated 29.12.1992, and Transfer / Mutation Letter dated 07.03.1997.

3. It is also stated in the SA that the applicant herein is the permanent r/o I-1/69, Sector-16, Rohini, Delhi – 85 and occasionally go to look after the property-in-question and no one has been residing in the property-in-question since the purchase of this property and even a electricity connection is not installed on the property-in- question for the last so many years. The applicant herein was regularly paying the instalments from the date of home loan sanction but from the last some time, the applicant was not in condition to pay the installments so applicant want to sell the property- in-question, accordingly, she went to the property- in-question on 15.12.2012. Then, the applicant was stunned to see the sealing of three floors including her first floor of the property bearing no. H. No. 455, Pocket-4, Sector – 22, Rohini, Delhi – 85. The applicant herein immediately enquired about the sealing of 1st, 2nd and 3rd Floor of the property i.e. property no. H. No. 455, Pocket-4, Sector-22, Rohini,

Delhi-85 and it came to the knowledge of the applicant that the said seal was due to default by the borrower of respondent no. 1 bank, in repayment of the loan amount taken against the said property with the respondent no. 1. It also came to the knowledge of the applicant that the borrower is respondent no. 2 / Sh. Raj Kumar, who had forged the document of the property and with the connivance of PSB (respondent no. 1) officials had obtained loan against the said property. The applicant herein immediately made a complaint of the fraud committed on her property to the PS, Begumpur vide DD No. 37b dated 17.12.2012. Vide impugned order dated 23.08.2012, the Ld. ACMM passed an order for the possession under Section 14(2) of SARFAESI Act against respondent no. 2, in the capacity of being borrower, with regard to the property of entire First, Second and Third Floor of the property bearing no. H. No. 455, Pocket- 4, Sector-22, Rohini, Delhi – 85, on the application moved by respondent no. 1. It is also stated that the applicant herein is owner in possession of the subject property since the same had been purchased by her by paying the consideration as per law and all the original documents relating to the property with chain from 2003 is mortgaged with the respondent no. 3 / SBI. On enquiry, it also came to the knowledge of the applicant that said respondent no. 2 has taken the Home Loan on three floors of the property and not repaying the loan amount of Rs. 19,96,971/- and he was advised to go to the DRT for opening the seal and for restoration of possession on the first floor of the property. It is further stated that when the advocate for applicant inspected the court file on 19.12.2012, then it came to the knowledge of the applicant that respondent no. 2 prepared a forged sale deed on the property bearing no. H. No. 455, First Floor, Pocket-4, Sector-22, Rohini, Delhi – 85. Hence the applicant has been forced to approach this Tribunal vide present SA.

4. Notice on this SA were served upon the respondents and respondents no. 1 & 3 appeared through their respective reply(s). So far as respondent no. 2 is concerned, he neither appeared nor filed the reply and hence his right to file the reply was closed vide order dated 26.03.2014 of this Tribunal.

5. On behalf of respondent no. 1 bank / PSB reply has been filed stating therein that the present SA is not maintainable before this Tribunal because the applicant herein has no right on the said property. As per the respondent no. 1 bank chain of the property has been detailed in Para 3 of the reply.

6. It is stated in the reply that Sh. Raj Kumar & Smt. Chaya Devi, in the month of March 2010 approached and requested the answering respondent no. 1 bank for financial assistance for a sum of Rs. 19,96,671/- under Housing loan scheme of the bank for purchasing Entire First, Second and Third Floor situated on built-up property bearing no. 455, Pocket-4, and Sector – 22, situated in the lay out plant of Rohini Residential Scheme, Rohini, Delhi – 110 008 belonging to Sh. Raj Kumar. It is further stated that Sh. Raj Kumar & Smt. Chaya Devi executed various loaning documents in respect of above loan facility on 20.03.2010. Further, Sh. Surender Kumar stood as guarantor and executed the deed of continuing guarantee in favour of the bank. Sh. Raj Kumar also created equitable mortgage in respect of immovable property being Entire First, Second and Third Floor situated on built- up property bearing no. 455, Pocket-4, Sector-22, situated in the lay out plan of Rohini Residential Scheme, Rohini, Delhi – 110 085 and deposited different sale deeds (duly registered) viz. Sale Deed dated 01.05.2010 in respect of Entire First Floor without roof / terrace rights; Sale Deed dated 09.04.2010 in respect of Entire Second Floor and another Sale Deed dated 09.04.2010 in respect of Third Floor. Since Sh. Raj Kumar, after taking the said loan could not maintain the account as per the agreement and defaulted the repayment with respect to the Housing Loan, hence, the said account was declared as NPA by the PSB on 31.03.2012. The notice under Section 13(2) dated 26.04.2012 was also sent to Sh. Raj Kumar through registered post for paying outstanding amount of Rs. 21,22,930/- as on 31.03.2012 plus future interest and legal expenses. Further vide order dated 23.08.2012 passed by Ld. ACMM, under Section 14 of SARFAESI Act, appointed Receiver for taking possession of the mortgaged property. Accordingly, it has been prayed to dismiss the present SA.

7. So far as respondent no. 3 / SBI is concerned, applicant herein has not sought any relief qua respondent no. 3. However, reply to this SA has been filed on behalf of respondent no. 3 wherein it is stated that the applicant herein approached the respondent no. 3’s Prashant Vihar Branch for availing the Housing Loan and respondent no. 3, relying upon the correctness of the information provided by the applicant, granted the loan of Rs.

6,15,000/- to the applicant on 31.12.2004. Further, in consideration of abovesaid loan of Rs. 6,15,000/-, the applicant signed and executed Loan Agreement and Arrangement Letter dated 31.12.2004 and one Sh. Shokinder Choudhary also executed a guarantee agreement dated 31.12.2004. Moreover, the applicant herein also created an equitable mortgage in favour of respondent no. 3 by way of deposit of the original title deed dated 05.01.2005 of the property being Entire 1st Floor without roof rights of built up property bearing No. 455, area measuring 25.90 sq. meters, Pocket No. 4, Sector-22, situated in the layout plan of Rohini Residential Scheme, Rohini, Delhi – 110 085, in the name of Smt. Kanta Devi / applicant herein. After availing the loan, the applicant herein defaulted in due repayment of the loan amount and interest thereon and finally the account of the applicant declared as NPA, in accordance with the guidelines of the RBI. Thereafter, on account of failure on the part of the applicant to repay the loan amount the respondent no. 3 issued a Demand Notice dated 12.12.2012 under Section 13(2) of the SARFAESI Act, 2002 to the applicant calling upon them to pay their outstanding dues of Rs. 4,39,420/- as on 11.12.2012 plus interest and charges but the applicant failed to respond to the demand notice and neglected to repay the loan amount. Thereafter, the respondent no. 3 moved an application before the Ld. ACMM, Delhi to take physical possession of the mortgaged property, wherein an order was passed for appointment of Court Receiver to take the physical possession of the mortgaged property, vide its order dated 27.02.2013. On 30.03.2013, when the Court Receiver took the possession of the mortgaged property i.e. First Floor, in the name of Smt. Kanta Devi and handed over the possession of the said mortgaged property to the authorized officer of respondent no. 3. It is also pertinent to note that the respondent no. 3 has also filed two SAs bearing nos. 196/2013 & 198/2013 titled as SBI Vs. Central Bank of India & Ors. and SBI Vs. Dena bank & Ors. qua the property-in-question.

8. The applicant herein has also filed the rejoinder to the reply filed by respondent no. 1 denying the allegations levelled in the reply and reiterating the averments made in the SA.

9. The applicant herein Smt. Kanta Devi has lead the evidence by way of her affidavit, who has filed and proved various documents such as copy of order dated 23.08.2012 passed by Ld. ACMM as Ex. PW1/1; copy of Police Complaint dated 17.12.2012

as Ex. PW-1/2; copies of the documents of chain of ownership and possession of the deponent as Ex. PW-1/3 to PW-1/12 and copy of letter sent by respondent no. 3 as Ex. PW-1/13.

10. The respondent no. 1 bank / PSB lead its evidence by way of affidavit of Sh. Pravin Kumar Bhawsar, Chief Manger of respondent no. 1 bank who has filed and proved certain documents viz. Chain of mortgaged property i.e. Allotment Letter dated 30.03.1961 issued by DDA in favour of Sh. Aamar Singh Giani as Ex. RW-1/1; Possession Letter as Ex. RW-1/2 (colly); Mutation Letter as Ex. RW- 1/3; Perpetual Lease Deed dated 21.07.1997 (registered on 08.08.1997) in favour of Smt. Kans Kaur as Ex. RW-1/4; GPA, Agreement to Sell and Receipt dated 25.06.2011 executed by Smt. Kans Kaur in favour of Sh. M.S. Kaushik as Ex. RW-1/5 (colly); Agreement to Sell dated 17.03.2003 and GPA & Receipt dated 25.06.2011 issued by Sh. M.S. Kaushik in favour of Sh. Shokender Kumar as Ex. RW-1/6 (colly); Conveyance Deed dated 27.06.2003 executed in favour of Sh. Shokender Kumar as Ex. RW-1/7; Sale Deed dated 20.09.2003 executed by Sh. Shokender Kumar in favour of Smt. Rekha (w.r.t. 2nd Floor without roof rights) as Ex. RW-1/8; Sale Deed dated 05.09.2007 executed by Smt. Rekha in favour of Smt. Bhawna Gupta (w.r.t. 2nd Floor without roof rights) as Ex. RW-1/9; Sale Deed dated 04.02.2009 executed by Smt. Bhawna Gupta in favour of Smt. Poonam Mehra (w.r.t. 2nd Floor without roof rights) as Ex. RW-1/10; Sale Deed dated 09.04.2010 executed by Smt. Poonam Mehra in favour of Sh. Raj Kumar (w.r.t. 2nd Floor with roof rights) as Ex. RW-1/11; Sale Deed dated 09.04.2010 executed by Sh. Shokender Kumar in favour of Sh. Raj Kumar (w.r.t. Third Floor with roof rights) as Ex. RW-1/12; Sale Deed dated 30.01.2009 executed by Sh. Jitender in favour of Smt. Ram Rati (w.r.t. First Floor without roof rights) as Ex. RW-1/13 and Sale Deed dated 30.01.2009 executed by Smt. Ram Rati (w.r.t. First Floor without roof rights) as Ex. RW- 1/14. He has also proved various loan documents executed by Sh. Raj Kumar on 20.03.2010 i.e. Form No. 14, Form No. 103, Form No. 106, Form No. 216, Form No. 291, Form No. 412, Form No. 199 and Form No. 94 A (R) as Ex. RW-1/15 to RW-1/22. Further, he has proved Form No. 256 (RR) executed by Sh. Surender Kumar as Ex. RW-1/23; notice dated 26.04.2012 issued under Section 13(2) of SARFAESI Act as Ex. RW-1/24 and Statement of Accounts as Ex. RW-1/25.

11. So far as respondent no. 3 is concerned, it has also filed its evidence by way of affidavit of Sh. Rajesh Kumar Garg, Chief Manager / authorized officer of the respondent no. 3 bank who has filed and proved the documents viz. copy of loan application agreement & arrangement letter dated 31.12.2004 as Ex. PW-1/1 & PW-1/2; copy of guarantee agreement dated 31.12.2004 as Ex. PW- 1/3; copy of letter of confirmation of deposit of title deed as well as copy of Sale Deed dated 05.01.2005 as Ex. PW-1/4 & PW-1/5 respectively; copy of Demand Notice dated 12.12.2012 issued under Section 13(2) of SARFAESI Act as Ex. PW-1/6; copy of order dated 27.02.2013 passed by Ld. ACMM as Ex. PW-1/7 and copy of photographs taken on 30.03.2013 at the time of taking possession of mortgaged property as Ex. PW-1/8 (colly).

(ii) . Appeal No. 62/2017 (Kanta Devi Vs. ARCIL)

12. The present appeal has been filed by Mrs. Kanta Devi, appellant under Section 30 (1) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 praying therein to set aside and quash the impugned order dated 09.10.2017 passed by the Ld. Recovery Officer, with immediate effect, and order to recall the recovery / sale proceedings, if any, initiated against the property bearing House No. 455 (First Floor), Pocket – 4, Sector – 22, Rohini, Delhi and pass necessary order for releasing the aforesaid property from the alleged charge, if any, of the Certificate Holder Bank and restoration of the possession of the aforesaid property.

13. The brief facts of the case are that the appellant herein is the lawful owner of the 1st Floor of the property-in-question, by virtue of execution of a duly registered Sale Deed dated 05.01.2005. It is also stated that the appellant herein occasionally goes to look after the 1st Floor of the property-in- question and when on 15.12.2012, appellant went to the property for some personal reason then she was shocked to see the sealing of three floors including her 1st Floor of the property-in-question. On enquiry, appellant came to know that the property was sealed by PSB, Asaf Ali Road Branch, as the property was mortgaged with them and the default was made by the borrower Sh. Raj Kumar in the repayment of the loan. It is further stated that the loan on the 1st Floor of the property-in-question was given on the basis of forged and fabricated documents by PSB. Moreover, appellant also filed one SA No. 648/2012

before this Tribunal which is pending adjudication. On 05.06.2017, the appellant came to know from the neighbors residing near the property that some persons have come at the property and they are going to sell her property. When the appellant went on the property then she came to know that in RC No. 147/2014, in the case titled as ARCIL Vs. Sh. Raj Kumar Soneja & Ors., the entire 1st and 2nd Floor with roof rights of the property-in-question, were going to be sold by the Court Auctioneer. Hence, the appellant was constrained to institute her objections against the aforesaid sale proceedings before the Ld. Recovery Officer on 21.06.2017 and also filed an application for production and supply of documents by the certificate holder to the appellant vide diary no. 12481 dated 04.10.2017. However, on 09.10.2017, the Ld. Recovery Officer dismissed the application dated 04.10.2017 and the objections dated 21.06.2017 hence the appellant has filed the present appeal against the impugned order dated 09.10.2017 passed by Ld. Recovery Officer.

14. Reply to this appeal has been filed on behalf of respondent no. 1 / ARCIL stating therein that the answering respondent no. 1 is the assignee company of SBI, who is assignor, and had granted the Housing Loan to the CDs / respondents for purchasing the subject property-in-question in the year 2009 vide Loan Application dated 02.03.2009. It is further stated that the assignor bank from its Gokulpuri Branch, Delhi sanctioned the Home Loan of Rs. 20.0 lac to the CDs/respondents and the said loan was availed by the CDs and was repayable in 240 EMIs of Rs. 16,779/- each for first 12-months instalments and after that Rs. 19,633/- per month including interest agreed. The CDs executed various loan documents on 14.05.2009. Further, 1st and 2nd Floor with roof rights of the subject property was mortgaged by Sh. Raj Kumar Suneja & Smt. Chhaya Devi with the assignor SBI, Gokulpuri Branch, New Delhi on 22.06.2009. Since the borrower / guarantor failed to repay the loan to the assignor bank, their account was declared NPA on 14.12.2009 and the assignor bank also recalled the entire loan vide Legal Notice dated 19.03.2012 but the respondents paid no heed. Further more, a notice dated 22.12.2010 under Section 13(2) of SARFAESI Act, was issued qua the secured asset Thereafter, assignor bank filed the OA bearing no. 146/2012 against the CDs/respondents no. 1 & 2 which was decided vide Final

Order

dated 13.08.2014 and a Recovery Certificate was also for recovery of Rs. 28,11,577/- along with interest, against the respondents, jointly and severally.

Since the CDs/respondents did not appear before the Ld. Recovery Officer and he had issued notice for setting the terms of the mortgaged property along with other notices and direction to the respondent no. 1 to file valuation report, reserve price and e-auction particulars vide its order dated 03.03.2016. The proclamation of sale qua the entire 1st and 2nd Floor with roof rights of the subject property for a reserve price of Rs. 29,44,230/- to be sold by e-auction on 29.07.2016 was issued on 15.06.2016. The said auction was failed and the property was again put on auction to be held on site by reducing the reserve price to Rs. 26,50,000/- to be sold on 14.10.2016 vide notice dated 01.09.2016. The said second auction was also failed as per auction report filed by the auctioneer dated 24.11.2016. The subject property was again put on auction vide order dated 10.04.2017, whereby the property was to be sold on 05.06.2017 and the said property was sold to the only bidder Smt. Kusum for reserve price of Rs. 23.00 lac. Since the court auctioneer did not receive any restraining order passed in any of the proceedings pending before any court of law, before conducting the auction held on 05.06.2007, hence Smt. Kusum was declared highest and successful bidder. It is also stated in the reply that Smt. Kanta Devi / appellant had filed objection against the sale of the subject property on 21.06.2007 and CH bank filed reply to the said objections. The objections were heard by ld. Recovery Officer and vide order dated 09.10.2007, the objections of the objector / appellant were dismissed while giving a detailed order and reasoning for said dismissal and the said order is a speaking order. Accordingly, it has been prayed to dismiss the appeal.

(iii) . SA No. 30/2013 (Dena Bank Vs. Punjab & Sind Bank)

15. The present Securitisation Application has been filed on behalf of the applicant herein / Dena Bank under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to `SARFAESI Act 2002’) praying therein to restrain P&SB, Asaf Ali Road branch from initiating any proceedings of sell of property bearing no. 455, admeasuring 25.9 sq. ft., situated at 455, 1st Floor without roof rights, Pocket-4, Sector-22, Rohini, Delhi – 85.

16. The brief facts of the case, as per amended SA, are that the respondents no. 2 & 3 i.e., Mr.

Jitendra & wife Ms. Poonam have taken Housing Loan of Rs. 7.0 lac from the applicant bank in May 2006 and in consideration of the grant and sanction of the Housing Loan, sanctioned to respondents no. 2 & 3, executed various security documents on 01.06.2006 viz. Housing Loan Agreement executed by respondents no. 2 & 3 for Rs. 7.0 lac; Letter of guarantee executed by respondent no. 4; Undertaking given by respondent no. 2; Memorandum of Equitable Mortgage in the name of respondents no. 2 & 3; copy of sale deed of the subject property and acknowledgement of debt dated 31.03.2010. It is also stated that after availing the Housing Loan, respondents no. 2 & 3 failed to adhere to financial discipline and did not pay the dues of the bank, as a result, the account of respondents no. 2 & 3 was classified as NPA on 14.01.2011. Ultimately, the applicant bank issued Notice dated 04.01.2011 and 20.4.2011 under Section 13(2) of SARFAESI Act which were sent under registered post, to the respondents, however, respondents failed to pay the entire dues of the applicant bank. Thereafter, the applicant bank also published the demand notice under Section 13(4) of SARFAESI Act in the newspaper `Statesman’ on 15.09.2011 because the respondents were not served through registered post. As such, a sum of

Rs. 6,39,210/- is the total outstanding amount (as on 30.11.2012) along with interest qua the respondents. The applicant bank got shocked when applicant visited the premises for taking the symbolic possession on 18.12.2012 and noticed that the premises was already sealed by the respondent bank / P&SB. Hence, the applicant has been forced to approach this Tribunal vide present SA.

17. Notice on this SA were served upon the respondents, however, respondent no. 1 bank i.e. PSB appeared through its counsel and filed reply.

18. On behalf of respondent no. 1 bank / PSB reply has been filed stating therein that the present SA has been filed against the respondent bank on misconception, false & wrong grounds and to delay the recovery proceedings initiated by respondent no. 1 bank. As per the respondent no. 1 bank chain of the property has been detailed in Para 3 of the reply and has taken similar objections as in SA No. 648/2012 (Kanta Devi Vs. PSB & Ors.). It is also stated in the reply that one Smt. Kanta Devi / applicant in SA No. 648/2012 is also claiming as owner of the 1st Floor of the subject property and Sh. Jitender and Smt. Kanta Devi have played fraud

with both Dena Bank as well as SBI and both the banks, without verifying the title documents, have sanctioned the loan on the said property on 1st Floor of the property, hence, as such the present SA is not maintainable before this Tribunal. Accordingly, it has been prayed to dismiss the SA.

19. The applicant herein / Dena Bank led the evidence by way of affidavit of Sh. Radhey Shyam Meena, Chief Manager and Principal Officer of applicant bank, who has filed and proved various documents such as copy of General Power of Attorney issued by applicant bank in his favour as Ex. AW1/1; Sanction Letter dated 01.06.2006 as Ex. AW1/2; Housing Loan Agreement dated 01.06.2006 as Ex. AW1/3; Letter of Guarantee dated 01.06.2006 executed by respondent no. 4 as Ex. AW1/4; Declaration / Undertaking given by respondents no. 2 & 3 as Ex. AW1/5; Memorandum of equitable mortgage as Ex. AW1/6; Sale Deed with regard to 1st Floor of subject property as Ex. AW1/7; letter of acknowledgement executed by respondents no. 2 & 3 as Ex. AW1/8; Demand Notice dated 05.01.2011 and 20.04.2011 as Ex. AW 1/9 (colly); newspaper `Statesman’ dated 15.09.2011 as Ex. AW1/10 and Statement of Accounts as Ex. AW1/11.

20. The respondent no. 1 bank / PSB lead its evidence by way of affidavit of Sh. B.C. Kandpal, Chief Manager of respondent no. 1 bank who has filed and proved certain documents as Ex. RW-1/1 to RW-1/25, which have also been proved in SA No. 648/2012.

21. Both the applicant bank as well as respondent no. 1 bank have filed their respective written submissions.

(iv) . SA No. 196/2013 (State Bank of India vs. Central Bank of India)

22. The present Securitisation Application has been filed on behalf of the applicant herein / State Bank of India under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,

(hereinafter referred to `SARFAESI Act 2002’) praying therein to restrain respondent no. 1 / Central Bank of India from taking any action in respect of property being Entire 1st Floor without roof rights of built up property bearing no. 455, admeasuring 25.90 sq. meters, Pocket No. 4, Sector-22, situated in the layout plan of Rohini Residential Scheme, Rohini, Delhi – 110 085. The brief facts of the case are that the above said property is in the name of Smt. Kanta Devi / respondent no. 2 herein who had mortgaged the same in favour of the applicant bank in the loan accounts of Mrs. Kanta Devi. It is stated in the SA that the respondent no. 2 approached the applicant’s Prashant Vihar Branch for availing Housing Loan and the said branch of applicant bank granted the loan of Rs. 6,15,000/- to the respondent no. 2, Smt. Kanta Devi on 31.12.2004. In consideration of the abovesaid loan of Rs. 6,15,000/-, the respondent no. 2 signed and executed a loan agreement dated 31.12.2004 as well as an arrangement letter dated 31.12.2004 in favour of the applicant. The said loan was also guaranteed by the respondent no. 3 who signed and executed a guarantee agreement dated 31.12.2004 in favour of the applicant. The respondent no. 2, or securing the due repayment of the said loan, created an equitable mortgage in favour of the applicant by way of deposit of the original title deed dated 05.01.2005 of the subject property. After availing the loan, the respondent no. 2 defaulted in due repayment of the loan amount and interest therein hence the account of the respondent no. 2 was declared as NPA. Thereafter, the applicant issued a Demand Notice dated 12.12.2012 under Section 13(2) of the SARFAESI Act to respondents no. 2 & 3 but despite issuance of said notice, respondents no. 2 & 3 failed to respond to the demand notice. Subsequently, applicant moved an application before the Ld. ACMM to take physical possession of the mortgaged property wherein Ld. Court passed an order dated 27.02.2013 and appointed the Court Receiver to take physical possession of the mortgaged property. It is further stated that on 30.03.2013 when the Court Receiver took the possession of the mortgaged property, Smt. Kanta Devi handed over the possession of the same to the authorized officer of the applicant, at that time the authorized officer of the applicant noticed a hand written intimation of taking possession of the said property by the respondent no. 1. Hence, it is evident that the respondent no. 1 is threatening the valid and lawful claim of the applicant herein as mortgagee of the aforesaid property. Thereafter, the officer of the applicant visited the branch of the respondent no. 1 and requested to provide the details of loan and property documents but the branch manager did not cooperate and refused to provide any information. It is also stated that the original title deeds are in possession of the applicant and in view of the same as registered instrument, there can be no doubt about its authenticity. It appears that the respondent no. 1 has a defective or incomplete claim to the mortgaged property which is also obvious from the fact that the original registered sale deed dated 05.01.2005 in favour of the respondent no. 2 has been deposited by the respondent no. 2 with the applicant with an intention to create equitable mortgage on the said property. Hence, the applicant has been forced to approach this Tribunal vide present SA.

23. Notice on this SA were served upon the respondents, however, respondents no. 1 bank as well as respondent no. 2 appeared through their respective counsels and filed their respective reply(s).

24. So far as respondent no. 3 is concerned, he neither appeared nor filed any reply, hence, the case was directed to proceed ex parte against respondent no. 3 vide order dated 08.02.2018 of this Tribunal.

25. On behalf of respondent no. 1 bank / Central Bank of India (CBI) reply has been filed stating therein that in the month of May, 2010, Raj Kumar & Chhaya Devi along with one Ashok Tagra approached the respondent bank for the sanction and grant of loan against the property for the extension of business under the Cent Mortgage Scheme to the tune of Rs. 5.0 lac against the mortgage of immovable property i.e. 2nd Floor with roof right of House No. 455, 2nd Floor, Pocket-4, Sector-2, Rohini, Delhi – 110 085, in the name of aforesaid Raj Kumar & Chhaya Devi vide loan application form dated 25.05.2010 and executed other loan documents. Aforesaid Ashok Tagra also stood as guarantor to the aforesaid finance facility applied by the borrowers. The respondent bank sanctioned the mortgage loan of Rs. 5.0 lac under Cent Mortgage Scheme to the borrowers Sh. Raj Kumar & Chhaya Devi vide Sanction Letter dated 0906.2010 and the borrowers, mortgagor and the guarantor executed and signed various documents on 11.06.2010 viz. Declaration & Undertaking; Term Loan Agreement, Form of Guarantee, visiting slip etc. Apart that, the mortgagor further vide letter of mortgage dated 11.06.2010 and original Sale Deed dated 15.05.2009 (duly registered on 23.05.2009) mortgaged the property by depositing the original Sale Deed of the property with the respondent bank. The loan was duly availed by the borrowers, however, after availing the same, the mortgagor, borrowers and guarantor failed to maintain the financial discipline and failed to repay the EMIs of the aforesaid loan. Since the borrowers failed to repay the loan amount, the loan account was categorized as NPA on 15.0.2012 and notice under Section 13(2) of the SARFAESI Act was issued on 17.10.2012. Despite service of said notice, the borrowers/mortgagor and guarantors did not pay the outstanding amount of loan due and payable. Hence, the respondent bank issued Possession notice and had taken over the Symbolic Possession of the property on 23.01.2013 under Section 13(4) of the SARFAESI Act. It is further stated that after initiating the aforesaid proceedings under the SARFAESI Act, the respondent bank received the notice dated 02.04.2013 by post clearly mentioning regarding taking over of the physical possession of the 2nd Floor with roof rights of the subject property. On enquiry it was revealed that the aforesaid 1st Floor of the property was alleged under the mortgage of applicant in the alleged finance facility granted to Sh. Sushil Kumar as housing loan. It is also stated that pursuant to notice dated 02.042013 of applicant, the respondent no. 1 bank had already initiated proceedings against the applicant bank under Section 17 of SARFAESI Act vide SA No.

200/2013 titled as `Central Bank of India Vs. State Bank of India & Ors. which is pending adjudication of this Tribunal. It is also stated that the respondent no. 1 bank had also further filed recovery suit under order 34 of CPC being Suit No. 295/2014, titled Central Bank of India Vs. Rajkumar & Ors. against aforesaid Raj Kumar Chhaya Devi and Ashok Tagra which is pending disposal in the court of Sh. Satish Kumar, Ld. ADJ, Rohini Delhi. It is denied by the respondent bank that the applicant bank has the mortgage of 2nd Floor with roof rights of the subject property and respondent no. 2 had mortgaged the same to the applicant bank against any loan facility granted in his favour. Further, the validity of alleged Sale Deed dated 16.12.2004 allegedly in favour of respondent no. 2 is also denied. It is also submitted in the reply that the Sale Deed dated 16.12.2004 and confirmation letter dated 16.12.2004 are forged and fabricated. It is further stated that the legal and valid title of 2nd Floor with roof rights of the subject property, as per Sale Deed dated 23.05.2009 was in favour of Sh. Raj Kumar, who mortgaged the same to respondent no. 1 bank on 11.06.2010. Thus, the mortgaged rights of the same property vests in favour of the answering respondent bank and further the sale deed as well as mortgage by respondent no. 2 in favour of the

applicant bank is neither legal nor valid, based on illegal, invalid and ungenuine documents. Accordingly, it has been prayed to dismiss the SA.

26. So far as respondent no. 2 / Smt. Kanta Devi is concerned, she has also filed her reply to the present SA stating that the respondent no. 2 had purchased the property vide duly registered Sale Deed dated 05.01.2005 from Smt. Nitu w/o Sh. Vijay and the respondent no. 2 had taken the loan on the property-in-question from the applicant bank and the loon was sanctioned by the applicant bank after due verification of the property title on 31.12.2004. The applicant bank had taken all the original title documents of the property from the respondent no

27. It is pertinent to note that the respondent no. 2 herein has also filed an SA bearing no. 648/2012 titled as Smt. Kanta Devi Vs. P&SB & Ors wherein she has taken same defence / objections as in the present reply. It is stated in the reply that the other bank had given loan to the borrower based on forged papers and the other bank may be put to strict proof of it. It is also stated that Sh. Raj Kumar & other banks i.e. P&SB, Central Bank of India & Dena Bank played fraud and now the bank is plying fraud to take away the property from respondent no. 2 knowing very well that the property-in-question is in ownership of respondent no. 2 and also already mortgaged with the applicant bank. The main ground of respondent no. 2 herein is that she is neither a borrower nor a guarantor with the respondent no. 1 bank and any other bank except the applicant bank / SBI. It is further stated that the respondent no. 2 never have knowledge regarding two other banks, which fraudulently sanctioned a loan against the property of respondent no. 2 without any knowledge that they have also taken the possession of the property.

27. The applicant herein has also filed rejoinder(s) to the reply(s) of respondents no. 1 & 2 denying all the allegations levelled against it and reiterating the averments made in the SA.

28. The applicant herein / SBI has lead the evidence by way of affidavit of Sh. Narayana Naik K.K., Chief Manager / Authorized Officer of applicant bank, who has filed and proved various documents such as present affidavit as Ex. PW-1/X; copy of loan application, agreement & arrangement letter dated 31.12.2004 with regard to loan availed by respondent no. 2 herein as Ex. PW-1/1 & PW-1/2

respectively; copy of guarantee agreement dated 31.12.2004 executed by respondent no. 3 as Ex. PW-1/3; copy of letter for confirmation of deposit of title deed and copy of Sale Deed dated 05.01.2005 as x. PW-1/4 & PW-1/5 respectively; Demand Notice dated 12.12.2012 under SARFAESI Act as Ex. PW- 1/6; copy of order dated 27.02.2013 passed by Ld. ACMM as Ex. PW-1/7 and copy of photographs taken on 30.04.2013 at the time of taking possession of mortgaged property as Ex. PW-1/8 (colly).

29. The respondent no. 1 bank / CBI lead its evidence by way of affidavit of Sh. Vinod Kumar Chauhan, Chief Manager / Authorized Officer of respondent no. 1 bank who has filed and proved certain documents as copy of GPA as Mark `A’; Loan Application Form dated 25.05.2010 given by Sh. Raj Kumar & Smt. Chhaya Devi along with some of relevant documents as Ex. RW-1/1 (colly); Sanction Letter dated 09.06.2010 containing terms and conditions of the loan duly acknowledged by Sh. Raj Kumar & Smt. Chhaya Devi as Ex. RW-1/2; various loan documents executed by Sh. Raj Kumar & Smt. Chhaya and the Guarantor on 11.06.2010 as Ex. RW-1/3 to RW-1/6; copy of letter dated 11.06.2010 & copy of Sale Deed dated 15.05.2009 as Ex. RW- 1/7; statement of mortgaged loan account as Ex.

RW-1/8 (colly); copy of notices dated 17.10.2012 issued under Section 13(2) of SARFFAESI Act as Ex. RW-1/9 (colly) and copy of Possession Notice dated 23.01.2013 along with photographs and publication of such notice in 2 newspapers as Ex. RW-1/11 (colly).

(v) . SA No. 197/2013 (State Bank of India Vs. Central Bank of India)

30. The present Securitisation Application has been filed on behalf of the applicant herein / State Bank of India under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,

(hereinafter referred to `SARFAESI Act 2002’) praying therein to restrain respondent no. 1 / Central Bank of India from taking any action in respect of property being Entire 2nd Floor with roof rights of built up property bearing no. 455, (unfinished) area admeasuring 25.90 sq. meters, Pocket No. 4, Sector-22, situated in the layout plan of Rohini Residential Scheme, Rohini, Delhi – 110

085.

31. The brief facts of the case are that the respondent no. 2 / Sh. Sushil Kumar approached the applicant’s Prashant Vihar Branch for availing Housing Loan and the said branch of applicant bank granted the loan of Rs. 6,00,000/- to the respondent no. 2 on 16.12.2004. In consideration of the abovesaid loan of Rs. 6,00,000/-, the respondent no. 2 signed and executed a loan agreement dated 16.12.2004 as well as an arrangement letter dated 316.12.2004 in favour of the applicant. The said loan was also guaranteed by the respondents no. 3 & 4 who signed and executed a guarantee agreement dated 16.12.2004 in favour of the applicant. The respondent no. 2, or securing the due repayment of the said loan, created an equitable mortgage in favour of the applicant by way of deposit of the original title deed dated 16.12.2004 of the property being 2nd Floor with roof rights of the subject property. After availing the loan, the respondent no. 2 defaulted in due repayment of the loan amount and interest therein hence the account of the respondent no. 2 was declared as NPA. Thereafter, the applicant issued a Demand Notice dated 12.12.2012 under Section 13(2) of the SARFAESI Act to respondents no. 2 to 4 but despite issuance of said notice, respondents no. 2 to 4 failed to respond to the demand notice. Subsequently, applicant moved an application before the Ld. ACMM to take physical possession of the mortgaged property wherein Ld. Court passed an order dated 27.02.2013 and appointed the Court Receiver to take physical possession of the mortgaged property. It is further stated that on 30.03.2013 when the Court Receiver took the possession of the mortgaged property, in the name of Sh. Sushil Kumar, and handed over the possession of the same to the authorized officer of the applicant, at that time the authorized officer of the applicant noticed a hand written intimation of taking possession of the said property by the respondent no. 1. Hence, it is evident that the respondent no. 1 is threatening the valid and lawful claim of the applicant herein as mortgagee of the aforesaid property. Thereafter, the officer of the applicant visited the branch of the respondent no. 1 and requested to provide the details of loan and property documents but the branch manager did not cooperate and refused to provide any information. It is also stated that the original title deeds are in possession of the applicant and in view of the same as registered instrument, there can be no doubt about its authenticity. It appears that the respondent no. 1 has a defective or incomplete claim to the mortgaged property, which is also obvious from the fact that the original registered sale deed dated 16.12.2004 in favour of the respondent no. 2 has been deposited by the respondent no. 2 with the applicant with an intention to create equitable mortgage on the said property. Hence, the applicant has been forced to approach this Tribunal vide present SA.

32. Notice on this SA were served upon the respondents, however, respondents no. 1 bank as well as respondent no. 2 appeared through their respective counsels. Though respondent no. 1 bank filed its reply, however, respondent no. 2 did not chose to file any reply.

33. So far as respondents no. 3 & 4 are concerned, they neither appeared nor filed any reply, hence, the case was directed to proceed ex parte against respondents no. 3 & 4 vide order dated 08.02.2018 of this Tribunal.

34. On behalf of respondent no. 1 bank / Central Bank of India (CBI) similar reply has been filed, as filed in SA no. 196/2013 titled as SBI Vs. Central

Bank of India. Accordingly, it has been prayed to dismiss the SA.

35. The applicant herein has also filed rejoinder to the reply of respondent no. 1 denying all the allegations levelled against it and reiterating the averments made in the SA.

36. The applicant herein / SBI led the evidence by way of affidavit of Sh. Narayana Naik K.K., Chief Manager / Authorized Officer of applicant bank, who has filed and proved various documents such as present affidavit as Ex. PW-1/X; copy of loan application, agreement & arrangement letter dated 16.12.2004 with regard to loan availed by respondent no. 2 herein as Ex. PW-1/1 & PW-1/2 respectively; copy of guarantee agreement dated 16.12.2004 executed by respondents no. 3 & 4 as Ex. PW-1/3; copy of letter for confirmation of deposit of title deed and copy of Sale Deed dated 16.12.2004 as Ex. PW-1/4 & PW-1/5 respectively; Demand Notice dated 12.12.2012 under SARFAESI Act as Ex. PW-1/6; copy of order dated 27.02.2013 passed by Ld. ACMM as Ex. PW-1/7 and copy of photographs taken on 30.04.2013 at the time of

taking possession of mortgaged property as Ex. PW- 1/8 (colly).

37. The respondent no. 1 bank / CBI lead its evidence by way of affidavit of Sh. Vinod Kumar Chauhan, Chief Manager / Authorized Officer of respondent no. 1 bank who has filed and proved certain documents, as in SA No. 196/2013.

(vi) . SA No. 198/2013 (State Bank of India Vs. Dena Bank)

38. The present Securitisation Application has been filed on behalf of the applicant herein / State Bank of India under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,

(hereinafter referred to `SARFAESI Act 2002’) praying therein to restrain respondent no. 1 / Central Bank of India from taking any action in respect of property being Entire 1st Floor without roof rights of built up property bearing no. 455, area measuring 25.90 sq. meters, Pocket No. 4, Sector- 22, situated in the layout plan of Rohini Residential Scheme, Rohini, Delhi – 110 085.

39. The brief facts of the case are similar to the facts given by SBI in SA No. 196/2017, hence same are not repeated here for the sake of brevity.

40. Notice on this SA were served upon the respondents, however, respondents no. 1 bank as well as respondent no. 2 appeared through their respective counsels and filed their respective reply(s).

41. So far as respondent no. 3 is concerned, he neither appeared nor filed any reply, hence, the case was directed to proceed ex parte against respondent no. 3 vide order dated 15.03.2018 of this Tribunal.

42. On behalf of respondent no. 1 bank / Dena bank, reply has been filed stating therein that the present SA is based on the false and concocted facts. It is stated in the reply that Mr. Jitendra and Mrs. Poonam had availed the Housing Loan of Rs. 7.0 lac from the respondent bank and also mortgaged the 1st Floor of the property-in-question with the respondent bank. It is pertinent to note that respondent no. 1 bank / Dena Bank has also filed an SA bearing No. 302013 titled as ‘Dena Bank Vs. PSB & Ors.’ wherein it has given all the details of loan availed by its borrower / mortgagor / guarantor. Accordingly, it has been prayed to dismiss the present SA.

43. So far as respondent no. 2 / Smt. Kanta Devi is concerned, she has also filed its reply on the similar lines as in SA no. 648/2012 titled as `Smt. Kanta Devi Vs. P&SB’ as well as in SA No. 196/2013 titled as `SBI Vs. Central Bank of India and Ors.’

44. The applicant herein has also filed rejoinder(s) to the reply(s) of respondents no. 1 & 2 denying all the allegations levelled against it and reiterating the averments made in the SA.

45. The applicant herein / SBI has lead the evidence by way of affidavit of Sh. Narayana Naik K.K., Chief Manager / Authorized Officer of applicant bank, who has filed and proved various documents, as in SA No. 196/2013 and SA No. 197/2013.

46. The respondent no. 1 bank / Dena Bank lead its evidence by way of affidavit of Sh. Radhey Shyam Meena, Chief Manager and Principal Officer of respondent no. 1 bank who has filed and proved certain documents viz. General Power of Attorney issued by respondent bank in his favour as Ex. DW- 1/1; Sanction Letter dated 01.06.2006 as Ex.DW- 1/2; security documents executed by borrower / guarantors on 01.06.2006 which includes Housing Loan Agreement, Letter of Guarantee, Undertaking and Memorandum of Equitable Mortgage & Sale Deed as Ex. DW-1/3 to DW-1/7; letter of acknowledgment of debit balance dated 31.03.2010 as Ex. DW-1/8; copy of demand notice as Ex. D-1/9 (colly); newspaper `Statesman’ dated 15.09.2011 with regard to publication of demand notice under Section 13(4) as Ex. DW-1/10; Statement of Account as DW-1/11.

47. So far as respondent no. 2 is concerned, on 15.03.2018, Ld. counsel for respondent no. 2 stated before this Tribunal that he does not want to file evidence on behalf of respondent no. 2, accordingly, right to file the evidence was closed.

(vii) . SA No. 200/2013 (Central Bank of India Vs. State Bank of India)

48. The present Securitisation Application has been filed on behalf of the applicant herein / Central Bank of India under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,

(hereinafter referred to `SARFAESI Act 2002’) praying therein to quash and set aside the impugned notice dated 02.04.2013 and the possession notice and proceedings of taking over of possession fo 1st Floor & 2nd Floor of the property-in-question by declaring any alleged mortgaged of the property in favour of respondents no. 1 & 5, if any, as null and void and by declaring the mortgage of the property as valid, correct, legal in favour of applicant bank by respondent no. 2.

49. The brief facts of the case are similar to the facts given by Central Bank of India in SA No. 196/2013 & 197/2013 wherein it was impleaded as respondent bank, hence same are not repeated here for the sake of brevity.

50. Notice on this SA were served upon the respondents, however, respondents no. 1 bank as well as respondent no. 5 appeared through their respective counsels. So far as respondent no. 1 bank / SBI is concerned, it has already filed SA Nos. 196/2013 & 197/2013 against Central Bank of India and proved its documents in the said SAs. So far respondent no. 5 / Dena Bank is concerned, it has filed its detailed reply, on the similar lines, as in SA No. 30/2013 and SA No 198/2013.

51. So far as respondent no. 2 to 4 are concerned, they neither appeared nor filed any reply, hence, the case was directed to proceed ex parte against respondents no. 2 to 4 vide order dated 09.02.2018 of this Tribunal.

52. The applicant herein / CBI has lead the evidence by way of affidavit of Sh. Vinod Kumar Chauhan, Chief Manager / Authorized Officer of applicant bank, who has filed and proved various documents, as in SA No. 196/2013 and SA No. 197/2013.

53. The respondent no. 5 bank / Dena Bank also lead its evidence by way of affidavit of Sh. Radhey Shyam Meena, Chief Manager and Principal Officer of respondent no. 1 bank who has filed and proved certain documents, as in SA No. 198/2013.

54.

Argument

heard and record has been thoroughly perused. In the present matters, on behalf of Kanta Devi (applicant in SA No. 648/2012, appellant in Appeal No. 62/2017 and respondent no.

2 in SA No. 196/2013 & 198/2013) and SBI, (Prashant Vihar Branch) (applicant in SA No. 196/2013, SA No. 197/2013, 198/2013; respondent no. 3 in SA No. 648/2012, respondents no. 4 & 5 in Appeal No. 62/2013 and respondent no. 1 in SA No. 200/2013), Ld. counsels for the parties have similar arguments. It is being stated by both the counsels appearing for Ms. Kanta Devi as well as SBI, (Prashant Vihar Branch), that Ms. Kanta Devi, who was owner of the First Floor of the property-in- question had mortgaged the same with SBI, Prashant Vihar Branch. It is the contention of Ld. counsel for SBI as well as Ms. Kanta Devi that property-in-question, in fact, was allotted by DDA in favour of Sh. Amar Singh Giani and after his death, the property-in-question was mutated in favour of his wife namely Smt. Kans Kaur. Subsequent to that, the property-in-question was got free-hold in the name of Sh. Shokender Singh S/o Sh. Jai Pal Singh on 27.06.2003. Thereafter, First Floor of the property-in-question was sold by Sh. Shokender Singh to Smt. Nitu Singh by virtue of Sale Deed dated 20.09.2003 and after that Smt. Nitu Singh sold the same to Smt. Kanta Devi, the present applicant by virtue of Sale Deed dated 05.01.2005.

55. Similarly, Ld. counsel for SBI,( Prashant Vihar), is also claiming right over the 2nd Floor with roof rights of the property-in-question, which is stated to have been mortgaged by one Sh. Sushil Kumar on 16.12.2004 by virtue of deposit of Sale Deed. It is contended that Sh. Shokender Kumar had sold the 2nd Floor with roof right by virtue of Sale Deed dated 20.09.2003 to Smt. Rekha w/o Sh. Raj Kumar, who further sold the same to Sh. Sushil Kumar by virtue of Sale Deed dated 16.12.2004. It is also argued that the loan was accordingly obtained by Sh. Sushil Kumar and the 2nd Floor with roof rights of the property-in-question was mortgaged with SBI, (Prashant Vihar Branch). Accordingly, 1st Floor as well as 2nd Floor with roof rights of the property-in- question were equitably mortgaged by Ms. Kanta Devi and Sh. Sushil Kumar respectively, therefore, the right, title & interest in the said portions of the property-in-question stand vested in the State Bank of India, Prashant Vihar, Branch.

56. On behalf of Central Bank of India (applicant in SA No. 200/2013 & respondent no. 1 bank in SA No. 196/2013 & SA No. 197/2013), it is being contended that the 1st Floor and 2nd Floor with roof rights of the property-in-question was mortgaged by Sh. Raj Kumar and his wife Ms. Chhaya Devi on 11.06.2010

with the Central Bank of India by way of deposit of Sale Deed executed between Sh. Raj Kumar & Ms. Chhaya and Ms. Reena Rai w/o Sh. Nirmal Rai on 15.05.2009 and Ms. Reena Rai was having Conveyance Deed dated 14.01.2009 in her favour. Accordingly, Sh. Raj Kumar & Ms. Chhaya Devi were owner of 1st and 2nd Floor (with roof rights) of the property-in-question, hence, the property-in- question was equitably mortgaged by them with Central Bank of India for obtaining Housing Loan of Rs. 5.0 lac and the bank has every right-title & interest with the said floor, as the defendants have committed default in the repayment of the said amount by respondents.

57. Further, the Dena Bank (applicant in SA No. 30/2013, respondent no. 1 bank in SA No. 198/2013 and respondent no. 5 in SA No. 200/2013) is claiming its right, title and interest over the 1st Floor (without roof rights) of the property-in-question which is stated to have been equitably mortgaged by Sh. Jitender S/o Sh. Prem Chand and Poonam w/o Sh. Jitender on 01.06.2006 with the Dena Bank. It is being contended that the Sale Deed was executed between Smt. Nitu W/o Sh. Vijay & Sh. Jitender s/o Sh. Prem Chand on 01.06.2006, which was accordingly deposited with the Dena bank and the loan of Rs. 7.0 lac was advanced.

58. On behalf of P&SB (respondent no. 1 in SA No. 648/2012,), it is being argued by Ld. counsel that the 1st Floor, 2nd Floor and 3rd Floor of the property- in-question were equitably mortgaged by Sh. Raj Kumar & Ms. Chhaya Devi, as they were owner of the same. It is further argued that 1st Floor of the property-in-question was purchased by Sh. Raj Kumar from Ms. Ram Rati by way of duly registered Sale Deed dated 01.05.2010, whereas 2nd Floor was purchased by virtue of Sale Deed dated 09.04.2010 from Smt. Poonam Mehra and 3rd Floor with roof rights was purchased by Sh. Raj Kumar from Sh. Shokender Kumar on 09.04.2010, accordingly, an amount of Rs. 19.96 was advanced by P&SB and security was creayed by way of equitably mortgaging was 1st, 2nd and 3rd Floor of the property-in-question. Hence, the right-title & interest in all floors stand vested with it.

59. On behalf of ARCIL (respondent no. 1 in Appeal No. 62/2017), Ld. counsel vehemently argued that the loan was assigned to ARCIL by SBI (Gokul Puri Brach), Delhi as the loan was advanced by the said branch of SBI by creating equitable mortgage by Sh. Raj Kumar & Ms. Chhaya Devi on 14.05.2009, on the basis of GPA dated 14.01.2009 executed by Ms. Reena Rai in their favour, and the loan of Rs. 20.0 lac was advanced by SBI on 26.06.2009. It is also stated that Ms. Reena Rai, by virtue of GPA dated 09.04.1998 executed by Ms. Kans Kaur, is claiming rights over the property-in- question, accordingly, ARCIL claims that 1st Floor and 2nd Floor with roof rights of the property-in- question, which were mortgaged by Sh. Raj Kumar & Ms. Chhaya Devi towards the said loan facility availed from SBI, (Gokulpuri,) Delhi. Ld. counsel for ARCIL also confirmed that the 1st Floor and 2nd Floor (with roof rights) of the property-in-question has already been sold for a sum of Rs. 26.50 lac by the Recovery Officer and the amount has been appropriated being assignee of the SBI.

60. In the present matter, in order to resolve the above said controversy, official witness from the DDA i.e. (Sh. Dilwar Singh) was called upon who proved that the present Plot bearing no. 455, Pocket-4, Sector – 22, Rohini, was actually allotted by DDA to Sh. Amar Singh by virtue of Allotment Letter dated 09.02.1990 and after his death, the plot was mutated in favour of his wife namely Ms. Kans

Kaur on 07.03.1997 and the Perpetual Lease Deed was executed in her favour on 21.07.1997. Subsequent to that, the Conveyance Deed was executed in favour of Sh. Shokender Kumar s/o Sh. Jai Pal Singh on 28.06.2003. In the present matter, apparently, as per the statement of Sh. Dilwar Singh, official of DDA who has been cross examined at length, it is proved that Sh. Shokender Kumar s/o Sh. Jai Pal Singh had become the owner of the property-in-question by virtue of Conveyance Deed dated 28.06.2003, as the property-in-question has become free-hold. Subsequently, Sh. Shokender Kumar sold the property-in-question to Smt. Nitu by virtue of Sale Deed dated 20.09.2003 and Smt. Nitu further sold the 1st Floor of the property-in-question to Smt. Kanta Devi by virtue of Sale Deed dated 05.05.2005. So far as, 2nd Floor (with roof rights) of the property-in-question is concerned, on behalf of SBI, (Prashant Vihar Branch), it is already proved on record that Sale Deed dated 20.09.2003 with regard to 2nd Floor (with roof rights) was executed by Sh. Shokender Kumar in favour of Smt. Rekha w/o Sh. Raj Kumar, who further sold the same to Sh. Sushil Kumar by virtue of Sale Deed dated 16.12.2004, whereas Central Bank of India is claiming its right over the 1st Floor and 2nd Floor (with roof rights) by virtue of Conveyance Deed dated 14.01.2009

executed in favour of Ms. Reena Rai and Ms. Reena Rai stated to have sold the 1st Floor and 2nd Floor with roof rights of the property-in-question to Sh. Raj Kumar & Ms. Chhaya Devi on 15.05.2009 and the same was mortgaged with Central Bank of India on 11.06.2010. Apparently, the entire property-in- question has been vested in favour of Sh. Shokender Kumar by virtue of Conveyance Deed dated 26.03.2003. Therefore, another Conveyance Deed with respect to said property cannot be executed in favour of Ms. Reena Roi w/o Sh. Nirmal Rai on 14.01.2009. Accordingly, the said transaction is totally illegal and malafide one, therefore the said Conveyance Deed dated 14.01.2009 in favour of Ms. Reena Rai is forged and fabricated one, accordingly, Ms. Reena Rai, who was not having a good title, cannot transfer the valid right, title & interest in favour of Sh. Raj Kumar & Ms. Chhaya Devi. Hence, the equitable mortgage stated to have been created in favour of Central Bank of India with respect to 1st and 2nd Floor of the property-in-question is also not valid and legal one. Similarly, Dena Bank is claiming right- title & interest over the 1st Floor of the property-in-question on the basis of Sale Deed executed by Smt. Nitu in favour of Sh. Jitender s/o Sh. Prem Chand on 01.06.2006 but Smt. Nitu had already sold the 1st Floor of the property-in-question in favour of Smt. Kanta Devi by virtue of Sale Deed dated 05.01.2005, therefore, the subsequent Sale Deed executed in favour of Sh. Jitender s/o Sh. Prem Chand i.e. on 01.06.2006 cannot be held valid because of the reason that Smt. Nitu had already divested on her rights over the 1st Floor of the property-in-question in favour of Smt. Kanta Devi, hence, the said Sale Deed dated 01.06.2006 is nothing, but a fraudulent transaction. Therefore, the equitable mortgage cannot be validly executed in favour of Dena bank as well on the basis of Sale Deed dated 01.06.2006.

61. So far as P&SB is concerned, apparently, it is contended that Sh. Raj Kumar had purchased the 1st, 2nd and 3rd Floor of the property-in-question on the basis of three different Sale Deeds i.e.

(i) Sale Deed dated 01.05.2010 executed by Smt. Ramrati in favour of Sh. Raj Kumar in respect of 1st Floor of the property-in- question;

(ii) Sale Deed dated 06.04.2010 executed by Smt. Poonam in favour of Sh. Raj Kumar in respect of 2nd Floor of the property-in- question;

(iii) Sale Deed dated 09.04.2010 executed by Sh. Shokender Kumar in favour of Sh. Raj Kumar in respect of 3rd Floor with roof rights of the property-in-question. Accordingly, the aforesaid three Sale Deeds are executed and the same were stated to have been deposited with P&SB for creation of equitable mortgage, on 20.03.2010, But, it is already held above that Sh. Shokender Kumar had sold the 1st Floor to Smt. Nitu by virtue of Sale Deed executed on 20.09.2003 and Smt. Neetu sold 1st Floor to Smt. Kanta Devi by way of Sale Deed dated 05.01.2005, whereas, 2nd Floor(with roof rights) of the property- in-question were sold by Sh. Shokender Kumar to Smt. Rekha by way of Sale Deed executed on 20.09.2003 who further sold the same to Sh. Sushil Kumar by virtue of Sale Deed executed on 16.12.2004. Hence, these Sale Deeds were prior in time to that which were executed by different persons namely Ms. Ramrati in favour of Sh. Raj Kumar on 01.05.2010 with respect to 1st Floor; by Ms. Poonam Mehra in favour of Sh. Raj Kumar on 09.04.2010 with respect to 2nd Floor; and by Sh. Shokender Kumar in favour of Sh. Raj Kumar on 09.04.2010 with respect to 3rd Floor with roof rights. Since Sh. Shokender Kumar had already sold the 2nd Floor (with roof rights) of the property-in-question in favour of Sh. Sushil Kumar by virtue of Sale Deed dated 16.12.2004, therefore, Sh. Shokender Kumar was left with no right, title and interest in the 2nd Floor with roof rights, therefore, he could not sell the 3rd Floor with roof rights in favour of Sh. Raj Kumar by virtue of the Sale Deed dated 09.04.2010 as the right over the same had already vested in favour of Sh. Sushil Kumar. In view of above said discussions, it is held that the said transactions are nothing but fraudulent one and by virtue of Sale Deeds, no right, title and interest stand vested in favour of Sh. Raj Kumar & Smt. Chhaya Devi, accordingly, they could not create a valid equitable mortgage by way of depositing the Sale Deeds with respect to these floors i.e. 1st, 2nd and 3rd Floor, in favour of P&SB. Hence, the PSB has got no right- title & interest in the said property.

62. So far as ARCIL is concerned, ARCIL is claiming its right over 1st and 2nd Floor (with roof rights) and it is also claimed that initially the loan was advance by SBI, (Gokulpuri Branch), on 22.04.2009 and subsequently debt was assigned to ARCIL. Apparently, in the present matter, Sh. Raj Kumar & Ms. Chhaya Devi were claiming their right, title and interest over the 1st Floor and 2ndFloor (with roof rights) of the property-in-question by way

of GPA dated 14.01.2009 and also relying upon the documents i.e. GPA dated 09.04.1998 executed by Ms. Kans Kaur in favour of Ms. Reena Rai and further GPA dated 14.01.2003 executed by Ms. Reena Rai in favour of Sh. Raj Kumar & Ms. Chhaya Devi but, it is already held that Sh. Dilwar Singh, official of DDA, has proved on record that the Conveyance Deed stands executed in favour of Sh. Shokender Kumar s/o Sh. Jai Pal Singh, accordingly, he was having right, title and interest in the property-in-question and he had also divested of his rights by virtue of Sale Deed dated 20.09.2003 executed by him in favour of Smt. Nitu (in respect of 1st Floor) and by virtue of Sale Deed dated 20.09.2003 executed in favour of Smt. Rekha (with respect to 2nd Floor with roof rights). Further, no such other Conveyance Deed has been found on record of the DDA. Even otherwise, the GPA and Sale Agreement etc. does not create any right, title and interest in favour of Sh. Raj Kumar & Ms. Chhaya Devi. Therefore, the equitable mortgage created by them in favor of SBI(Gokulpuri Branch) / ARCIL is not valid one as they were not having valid, right, title and interest in the 1st Floor and 2nd Floor (with roof rights) of the property-in-question.

63. In sequel of above said discussions, the prior right, title and interest over the 1st Floor and to 2nd Floor (with roof rights) stand vested in the favour or Smt. Kanta Devi & Sh. Sushil Kumar, respectively. Smt. Kanta Devi admitted that the 1st Floor of the property-in-question was equitably mortgaged with SBI, (Prashant Vihar Branch), Delhi. Similarly, the SBI, (Prashant Vihar Branch) also succeeded in proving that the 2nd Floor (with roof rights) were equitably mortgaged with it by Sh. Sushil Kumar. Further, the SBI has taken action/measure against its borrowers / mortgagors, as they have committed default in repayment of the dues of the bank. It is also important to note that on behalf of Smt. Kanta Devi, it could not be proved on record that there was any illegality or irregularity in the actions / measures of the respondent bank no.3.

(i) . SA No. 648/2012 (Kanta Devi Vs. Punjab & Sind Bank)

64. In the present SA, the right of applicant herein / Smt. Kanta Devi with respect to 1st Floor of the property-in-question stand proved in her favour. Further, it is also proved that the mortgage created by Smt. Kanta Devi with respect to 1st Floor of the property-in-question in favour of SBI (Prashant Vihar) is also valid one. Since it is proved on record that Smt. Kanta Devi was having valid right, title and interest over the 1st Floor of the property-in- question, accordingly, actions of P&SB with respect to 1st Floor of the property-in-question are absolutely illegal, malafide and arbitrary one. But, 1st floor was equitably mortgaged by Smt. Kanta Devi with the respondent bank no.3, i.e., SBI(Prashant Vihar Branch) and it is proved on behalf of the respondent bank no.3 that there was default in the repayment of the loan and default was accordingly committed and there was no ambiguity/irregularity in the actions/measures of the respondent bank no.3. In the present facts and circumstances, the present SA stands partly allowed against the respondent bank no.1 & 2 whereas the same stands dismissed with respect to respondent bank no.3.

(ii) . Appeal No. 62/2017 (Kanta Devi Vs. ARCIL)

65. So far as appeal no. 62/2017 is concerned, apparently, it is proved on record that Smt. Kanta Devi was the owner of the 1st Floor of the property- in-question as the Sale Deed dated 05.01.2005 was duly executed by Smt. Nitu in her favour and Smt. Neetu had valid right, title and interest by virtue of Sale Deed executed by Sh. Shokender Kumar in her favour on 20.09.2003, in whose favour, the property stands vested by virtue of Conveyance Deed executed by DDA on 27.06.2003. Therefore, Ld. Recovery Officer, without relying upon the chain of documents, which Smt. Kanta Devi was possessing, put the 1st Floor of the property-in-question on sale, therefore, the impugned order dated 09.10.2017 of Ld. Recovery Officer-II, suffers from infirmity, illegality & irregularity, accordingly, the same stands set-aside with regard to 1st Floor of the property-in- question. Resultantly, the present appeal filed on behalf of Smt. Kanta Devi stands partly succeeds to the extent of sale with regard to 1st Floor of the property-in-question. However, it is also proved that the 2nd floor with roof rights was also stand mortgaged with the SBI, (Prashant Vihar Branch). Since debt of SBI (Gokulpuri Branch) has been assigned to ARCIL, and in RC no. 147 of 2014, (against which the present appeal has been filed), both the floors i.e., 1st & 2nd floor has been sold by way of auction for a sum of Rs.23.00 lacs. However, it Is already admitted fact that the 1st floor of the property-in-question was equitably mortgaged by Smt. Kanta Devi herself with the SBI (Prashant Vihar

Branch). Whereas, the 2nd Floor (with roof rights), was already held to be duly equitably mortgaged with the same branch i.e., SBI (Prashant Vihar branch) by Mr. Sushil Kumar. As the property-in- question consisting of 1st & 2nd Floor with roof rights, sold by the Ld. Recovery Officer-II, and the sale proceeds are with the ARCIL. Kanta Devi is only succeeded in proving that she is owner in possession of 1st floor of the property. However, the Ld. Recovery Officer has auctioned both the floors jointly, therefore, this Tribunal is left with no alternative but to set-aside the sale of both the floor inspite of the fact that SBI, (Prashant Vihar Branch), neither the filed the objection before the Ld. Recovery Officer in RC no. 147 of 2014 nor filed any appeal against the impugned order confirming the sale in the said matter. Though, it is held that the Sushil Kumar had equitable mortgaged said 2nd floor (with roof rights), with the abovesaid branch. Accordingly, the said impugned order passed by the Ld. Recovery Officer-II, stands set-aside and the auction stands cancelled. The entire amount i.e., Rs. 23.00 lac which was appropriated by ARCIL stands returned to the auction purchaser with the interest @ 6% per annum from the date of its deposit till its realization. The auction purchaser shall immediately hand over the actual & physical possession of the property-in-question i.e., 1st & 2nd floor (with roof rights) to the Ld. Recovery Officer-II, who shall also make endeavor to take the actual & physical possession of the abovesaid floors preferably within 30 days as per law. Accordingly, the present Appeal stands partly accepted.

(iii) . SA No. 30/2013 (Dena Bank Vs. P&SB) & SA No. 198/2013 (SBI Vs. Dena Bank)

66. In view of above discussion, it is already held that 1st Floor of the property-in-question was already sold by Smt. Nitu in favour of Smt. Kanta Devi by virtue of Sale Deed dated 05.01.2005, therefore, subsequent Sale Deed, if any, executed by Smt. Nitu in favour of Sh. Jitender on 01.06.2006, on which Dena Bank is claiming the mortgage, is absolutely illegal and fraudulent transaction as she was already divested of her rights in the 1st Floor in favour of Smt. Kanta Devi.

67. Hence, Dena Bank is also having no right, title and interest in the 1st Floor of the property-in- question as it already stand proved that right, title and interest over the same stands vest in favour of

Smt. Kanta Devi / SBI, Prashant Vihar Branch, therefore, present SA no. 30 of 2013 stands dismissed, being devoid of merits. Since it has already been held in SA No. 30/2013 that the Dena Bank is having no right, title and interest in the 1st Floor of the property-in-question as it already stand proved that right, title and interest over the same stands vest in favour of Smt. Kanta Devi / SBI, Prashant Vihar Branch, therefore, the present SA no. 198 of 2013 of SBI stands allowed.

SA-196/2013 & 197/2013 (SBI Vs. CBI) & SA No. 200/2013 (CBI Vs. SBI)

68. Furthermore, the Sale Deed executed in favour of Sh. Raj Kumar and Ms. Chhaya Devi, mortgagors of P&SB, with regard to 1st Floor dated 01.05.2010 and 2nd Floor dated 09.04.2010 and 3rd Floor dated 09.04.2010; are also subsequent in nature and is also illegal and fraudulent transaction. Both the SA nos. 196/2013 & 197/2013 accordingly, stands allowed since Central Bank of India has already failed to prove on record that its mortgagor / borrower Sh. Raj Kumar and Ms. Chhaya Devi were having valid right, title and interest in the 1st Floor and 2nd Floor with roof rights of the property-in- question. Apparently, Central Bank of India already failed to prove on record that its mortgagor / borrower Sh. Raj Kumar & Ms. Chhaya Devi were having valid right, title and interest in the 1st Floor and 2nd Floor (with roof rights) of the property-in- question. In fact, the first floor of the same stands vested in favour of Smt. Kanta Devi whereas the 2nd Floor (with roof rights) stand vested with Sh. Sushil Kumar, who are mortgagors of SBI, (Prashant Vihar Branch). Accordingly, it is already held that the action / measures of the SBI with respect to 1st Floor as well as 2nd Floor (with roof rights) are absolutely legal and valid one on the part of the SBI(Prashant Vihar Branch). Hence, present SA no. 200 of 2013 filed on behalf of CBI, being devoid of merits, stands dismissed.

Resultantly, it is held as under:

(i) . SA No. 648/2012(Kanta Devi Punjab & Sind Bank) partly allowed against respondent no.1 & 2, whereas the same stands dismissed with respect to respondent no.3 without any order to costs.

(ii) . Appeal No. 62/2017(Kanta Devi Vs. ARCIL) allowed without any order to costs.

(iii) . SA No. 30/2013(Dena Bank Vs. Punjab & Sind Bank) dismissed without any order to costs.

(iv) .SA No. 196/2013(SBI Vs. CBI), allowed without any order to costs.

(v) .SA No. 197/2013(SBI Vs. CBI), allowed without any order to costs.

(vi) .SA No. 198/2013(SBI Vs. Dena Bank) allowed without any order to costs.

(vii) .SA No. 200/2013(CBI Vs. SBI) dismissed without any order to cost.

With the above said observations / directions, all the aforesaid matters stand disposed off accordingly, with no orders to costs. Files be consigned to record room.

(DHARMINDER SINGH) PRESIDING OFFICER DRT-III, DELHI

(Pronounced in open court) Dated: 31.08.2019 AB