ELYSIUM RESORT PVT LTD vs IDBI BANK on 30 December 2021

1. Stressed Assets, Stabilization Fund, IDBI Bank Ltd, 5th Floor, IDBI Tower, WTC Complex, Cuffe Parade, Mumbai-400 005.

2. Suman Hotels & Resorts Management Ltd, Rambagh Road, Bara Bagh, Jaisalmer, Rajasthan. ……Respondents….

Counsel for the Applicant

Shri Chain Singh Rathore Counsel for the Respondent No. 1

Shri Ashish Tiwari Counsel for the Respondent No. 2

Shri Umesh Dubey

Appeal under Section 30 (1) of the Recovery Debts Due to

Bank & Financial Institutions Act, 1993. ***********

Order-dated: 30.12.2021

This appeal filed by the appellant/Intervener through Shri Jayesh Ramji Sindhav, vide Board Resolution dated 30.01.2019. The brief facts of the appeal are as under:- i. It is submitted that Lease Deed dated 01.06.2017 executed between the Respondents (Lessor) and Intervener (Lessee), the lessor has leased unto the Intervener all the pieces, part and parcels of land situated at Village Barabagh, District-Jaisalmer, having Khasra No. 18 & 18/490, admeasuring 17.2 Bigha, 2 Biswa or thereabouts together with resort having 40 A.C. Cottages, Conference hall, restaurant, Swimming pool, indoor/outdoor games, children’s park, overhead/ underground water tanks, septic tanks, compound wall,

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tube-well etc. The lease deed was duly registered with Sub-Registrar, Jaisalmer. ii. The said resort was mortgaged with IDBI and the Lease Agreement would be on “as is where is basis” to which the appellant/intervener agreed with the Respondent. iii. That after entering into the lease deed, the appellant/intervener has employed his staff members in the said Resort for running the Resort. It is submitted that they are a bona fide lessee of the property and before executing the lease deed permission as sought through addressed mentioned above. The appellant/intervener has done due diligence and searched the details and status of the respondent from the official website of M/o. Corporate Affairs and, it was revealed to the appellant/intervener that the property was free hold having no charges on the property. iv. It is submitted that if the public auction is not revoked the appellant/intervener will suffer irreparable loss, harm and prejudices which cannot be compensated in terms of money. v. It is also submitted that that Recovery Officer, DRT, Jaipur after hearing both the parties, without taking into consideration, the facts and circumstance as well as rights of the appellant/Intervener dismissed the said application vide impugned order dated 13.03.2019. vi. In grounds, it is submitted that Recovery Officer cannot be legally sustained being contrary to the provisions of law and material available on record, hence same is liable to be quashed and set-aside. vii. It is mention herein that after execution of lease deed between the Respondent no. 2 and appellant, the appellant invested huge money on the property in question to run the resort and after getting the possession of the property in question, the respondent bank has not given any information to the Appellant regarding the property in question inspite of sending several letters to the respondent bank and therefore the Appellant is affected party in the present matter.

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viii. It is prayed that impugned order dated 13.03.2019 passed by the Recovery Officer, DRT, Jaipur in Recovery Certificate No. 108/2003 be quashed and set-aside and Appellant/Intervener may be permitted to intervene in the proceedings before the Recovery Officer, DRT, Jaipur.

On 26.09.2019, the Counsel for the Respondent No.2, has filed reply to the Appeal and stating therein that- The Respondent No. 2 stated that the present reply is filed through Shri Surendra M Khandhar, Director of Respondent No. 2, who has been duly authorized to file the reply through Board Resolution dated 18.09.2019. The Respondent No. 2 further stated that Sheikh Mukhtar Husain one of the Directors of Respondent No. 2 without the knowledge and consent of other Directors and without any Board Resolution entered into a clandestine unregistered Agreement in respect of the subject property with Mr. Rakesh Baheti on 17 July, 2001 and in the DRT, Jaipur he had made an Intervener application and demanded a sum of Rs. 66,00,000/- from Respondent No. 2, through DRT, Jaipur.

The Respondent No. 2 further stated that the said Rakesh Baheti had filed a Civil Suit No. 19/17 before the Civil Court at Jaisalmer praying therein to direct Respondent No. 2 not to disturb possession of the subject property on which he was a trespasser. The Respondent No. 2 stated in the reply that the lease deed with Elysium Resorts is a registered agreement, whereas the Agreement with Mr. Rakesh Baheti was unregistered and has no legal standing as the said agreement is done in a clandestine manner by Sheikh Mukhtar Husain with the said Rakesh Baheti without the knowledge and consent of other Directors of Respondent No. 2 and both the said agreements has to be construed in a different manner as the Lease Deed is a legal document and other agreement with Rakesh Baheti is illegal which fact has been upheld by the Civil Court at Jaisalmer. The reply is supported with Annexure R-1 to R.4.

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On 10.10.2019, the Counsel for the Respondent No.1 SASF

(IDBI), has filed reply to the Appeal and stating therein that:-

That the para no. I, II and III of the appeal are matter of records needs no reply.

The lease deed dated 01.06.2017 submitted before the Tribunal is void, ab-initio, therefore, no legal rights are conferred upon the Appellant in regard to the properties already mortgaged to SASF

against which the recovery proceedings are being carried on before this Hon’ble Court. SASF has first charge over the entire properties of Khasra No. 18 & 18/490, admeasuring 17 Bigha, 2 Biswa and construction thereon. The representative of SASF along with the valuer had visited the above premises on 10.08.2019 for valuation under the orders of R.O., DRT, Jaipur. The Appellant was not having any kind of possession on the said properties up to the said date, therefore, lease deed dated 01.06.2017 is infactuous and has been prepared with the collusion of the borrower so as to frustrate the recovery proceedings.

It is also submitted that after the mortgage of the properties in question Suman Hotel has no right to create any right thereupon or execute lease deed in favour to the Appellant or any other person over the mortgaged property without permission of mortgagee i.e. SASF.

Suman Hotel and Appellant in collusion with each other have executed the said ostentations Lease Deed only to frustrate the recovery proceedings which are pending before the R.O. of DRT, Jaipur and no legal rights are vested in the Appellant by virtue of this lease deed. It is to submit that after the recovery proceedings are being carried on, the mortgagor has no legal rights in respect of that property. Previously also, Shri Rakesh Baheti in collusion with Suman Hotels had moved an application before R.O. of DRT, Jaipur claiming that he is in possession of the properties in question as per the Agreement dated 17, July, 2001, which was dismissed by the Recovery Officer, DRT, Jaipur vide order dated 23.03.2018 and he was restrained from creating any hurdle in auction proceedings. After dismissal of the above application of Shri Rakesh Baheti now Suman Hotels in collusion with Elysium Resorts Pvt. Ltd. filed another application before R.O. of DRT, Jaipur, only to

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frustrate and create hurdle in the recovery proceedings, which was dismissed vide order dated 13.03.2019.

It is also submitted that as per the information downloaded from the official Website of the M/o. Corporate Affairs, the appellant has claimed that the properties in question are freehold having no charge.

Whereas, on perusal of the same it would be observed that name of this Company has been struck off and details of paid up Capital of the Company and details of directions and signatories, dates of AGM and the period of balance sheets etc are not given. The appellants, being in the knowledge of striking of name of the Company, did not carry out inspection of the records maintained by the ROC.

In relief para, the Respondent FI prayed that the impugned order dated 13.03.2019 is proper, legal and is passed after considering all the relevant facts and documents and is not liable to be set-aside. The present appeal filed by the Appellant which is filed in collusion with the Respondent No. 2 is not liable to be allowed and deserves to be dismissed with cost. The Appellant is not entitled to intervene in the recovery proceedings being carried on by the R.O. of DRT, Jaipur in the execution no. 108/2003. The reply was supported by an affidavit of Manager of SASF FI.

Heard arguments of both the Ld. Counsels.

After having gone through, the order of Ld. Recovery Officer of this DRT dt. 13.03.2019, I am of the considered view that the order is proper, legal and was passed after considering all the facts, circumstances and evidence available on the face of record. The right as claimed is based on a unregistered documents and it has tried, just in order to frustrate the recovery proceedings with a malafide intention. Accordingly, this Appeal being devoid of any merit is dismissed. Ld. Recovery Officer is directed to complete recovery proceedings in a time bound manner. Copy of this order be given free to the parties concerned and be sent to the concerned Recovery Officer for further proceedings. File be placed before the Registrar for compliance. After compliance file be consigned to record.

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Presiding Officer Debts Recovery Tribunal, Jaipur

Appeal No.009 of 2019 SKJ

BEFORE THE DEBTS RECOVERY TRIBUNAL, JAIPUR PRESENT- SHRI VIVEK SAXENA PRESIDING OFFICER O.A. NO009 OF 2019 DATE OF DELIVERY OF ORDER 13-09-2021

RECOVERY CERTIFICATE (UNDER SUB Section 22 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (Act 51 of 1993)

CANARA BANK Corporate Office -112, JC Road, Bengaluru (Karnataka) Branch Office- G-139, Malviya Nagar Industrial Area, Near Apex Hospital, Jaipur …..Applicant Bank…… VERSUS

1. FARRICO INTERNATIONAL, through its Proprietor Keshav Gupta, S-1/34,RIICO Complex, Road No. 1-D, VKI Area, Jaipur (Raj.)

302013

2. KESHAV GUPTA, S/o. Shri Suraj Gupta, R/o. 9/63, Vidhyadhar Nagar, Jaipur (Raj.) 302023

……Defendants….

Recovery Certificate for Rs. 55,46,461.42/- In terms of final order dated 13-09-2021 passed by this Tribunal in the above mentioned case, it is ordered that the- a) The Defendants are liable to pay to the applicant bank a sum of o Rs.55,46,461.42/- (Fifty Five Lacs Forty Six Thousand Four Hundred Sixty One & paisa Forty Two Only) with future interest @ 10% p.a. (Simple) rests from the date of filing the original application till the date of realization. b) The applicant bank is entitled to recover the above amount by the sale of hypothecated goods, Plant & Machinery, as well as Personal movable and immovable properties/assets of Defendants, jointly and severally. The applicant bank is entitled to proceed against the same towards recovery of its debt. The

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applicant bank is entitled to proceed against the same towards recovery of its debt.

c) The applicant bank is entitled to the costs and expenses of the

O.A.

ii. Parties are directed to appear before the Recovery Officer, DRT, Jaipur on 16.11.2021. The Recovery Officer shall realize the amount as per this Certificate in the manner and mode prescribed under Section 25 and 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (as amended from time to time) from the above named Certificate Debtor. This Certificate has been issued under my signatures and seal of the Tribunal on this 13-09-2021.

(Vivek Saxena) Presiding Officer, Debts Recovery Tribunal, Jaipur

Place-Jaipur Dated-13-09-2021

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FORM NO. 10 [See Regulation-24(1)]

DEBTS RECOVERY TRIBUNAL SFE 3-4, Nehru Place, Tonk Road, JAIPUR- 302015

SCHEDULED TO RECOVERY CERTIFICATE MEMO OF COST

O.A No. 009 of 2019

CANARA BANK Corporate Office -112, JC Road, Bengaluru (Karnataka) Branch Office- G-139, Malviya Nagar Industrial Area, Near Apex Hospital, Jaipur …..Applicant Bank…… VERSUS

1. FARRICO INTERNATIONAL, through its Proprietor Keshav Gupta, S-1/34,RIICO Complex, Road No. 1-D, VKI Area, Jaipur (Raj.)

302013

2. KESHAV GUPTA, S/o. Shri Suraj Gupta, R/o. 9/63, Vidhyadhar Nagar, Jaipur (Raj.) 302023

……Defendants….

S. No. Item of Costs Amount in Rupees

1. Fee on the application 58,000

2. Process Fees (inc. Publication)

3. Advocate Fees 1,250

4. Commissioner/Receivers/Valuation/Sec urity Fee NIL

5. Miscellaneous Charges NIL

Total Costs 59,366

(Vivek Saxena) Presiding Officer, Debts Recovery Tribunal, Jaipur Place-Jaipur Dated-13-09-2021

Appeal No.009 of 2019 SKJ

13-09-2021 Counsel: Sh. RAJKUMAR, Counsel for the Applicant Bank. Smt. SURBHI BAIRATHI, Counsel for the Defendants.

Judgment dictated separately and pronounced in the open court. As per order the O.A. is allowed. Recovery Certificate be prepared accordingly and the Registry is directed to verify the Recovery Certificate as per Regulation 24(1) and (2) of Debts Recovery Tribunal Jaipur Regulation 2015 and after verification place the same before the Tribunal.

(Vivek Saxena) Presiding Officer, Debts Recovery Tribunal, Jaipur

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13-09-2021 Counsel: Sh. RAJKUMAR, Counsel for the Applicant Bank. Smt. SURBHI BAIRATHI, Counsel for the Defendants.

The Tribunal vide order dated 13-09-2021, directed the Registrar to verify the Recovery Certificate as per Regulation 24(1) and (2) of Debts Recovery Tribunal Jaipur Regulation 2015. The Registrar vide order dated 13-09-2021 verified the Recovery Certificate as per Regulation 24(1) and (2) of Debts Recovery Tribunal Jaipur Regulation 2015. Recovery Certificate is prepared accordingly. Copy of the Judgment and Recovery Certificate be given free to the concerned parties as well as be sent to the Recovery Officer for further proceedings. File be put up before the Registrar for compliance. After compliance file be consigned to record.

(Vivek Saxena) Presiding Officer, Debts Recovery Tribunal, Jaipur

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DEBTS RECOVERY TRIBUNAL, JAIPUR

ORIGINAL APPLICATION NO.009 of 2019 The Recovery Certificate prepared in compliance of order dated 13-09-2021 passed by Hon’ble Presiding Officer, DRT, Jaipur in Original Application No. 009 of 2019 Title- Canara Bank Vs. FARRICO INTERNATIONAL & ORS. has been checked and may be verified.

Section Officer

Assistant Registrar

On the basis of the report of Section Officer the Recovery Certificate is verified. The Recovery Certificate is placed below for the signature of Hon’ble Presiding Officer please.

Assistant Registrar

Hon’ble Presiding Officer