Sakharam Pandurang Malgaonkar vs Shri Rambalisinh Rampratapsinh Badoriya on 24 June 2025

**JUDGMENT**

1. 1. The present Miscellaneous Application is filed by the Applicant seeking recall of the impugned order dated 27-12-2018, condonation of delay and handing over the possession of the property to the Applicants.

2. 2. In this case, the Ld. Counsel for the Applicant has submitted that Applicant No: 1 had purchased one House/Flat bearing No: 616, located on Survey No: 98 & 99, Colony: 512 LIG, Pandesara, Surat from Gujarat Housing Board in the year 1996. Thereafter, in the year 2003, the Applicants wanted to start a business and had mortgaged the above property with Punjab National Bank for a "Term Loan" of Rs.5,50,000/-. The copies of the Declaration and Memorandum of Deposit of Title Deed both dated 25-09-2003 are in "**Annexure B**". After availing the loan, the Applicants suffered loss in the business and they could not pay the instalments of the Loan Account to the Respondent Bank and due to subsequent failures in repaying the amount, the mortgaged property was declared NPA by the Respondent Bank and a possession notice was issued and inventory and Panchnama was drawn on 31-10-2007. The symbolic possession of the property was also taken on 31-10-2007. It is further submitted that although the possession was taken by the Respondent Bank, the Applicant was constantly in touch with the Respondent Bank and in the year 2017, the Applicant No: 2 settled the Loan account by One Time Settlement (OTS) to which the Respondent Bank agreed. Accordingly, the loan was closed after the Applicant paid the full settlement amount. The copies of the communications along with cheque and "No Dues Certificate" dated 15-12-2017 are at **Annexure-D**. It is submitted that although the loan was settled, the Respondent Bank did not return the original documents and the possession of the property was not handed over to the Applicant.

3. 3. It is further submitted that, after about one and half years, it was verbally informed by the Respondent Bank that the mortgaged property was handed over to the Respondent No: 1 in furtherance of order dated 27-12-2018 passed in SA No: 68/2012 by the Hon'ble Debts Recovery Tribunal, Ahmedabad. As soon as the Power of Attorney holder of the Applicant came to know of the order dated 27-12-2018, after filing a third party affidavit she obtained a certified copy of the order on or about 31-06-2019 and filed few RTI applications demanding certain documents from the Respondent Bank. The Applicant No: 2 had demanded the copy of the application or suit filed by the Respondent Bank with regard to the asset offered as security before the Hon'ble DRT along with a similar application filed before the Civil Court, Surat as well as District Magistrate, Surat. The Applicant filed approximately 4 RTI

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applications demanding names of all the Managers and Bank employees, demanding copies of internal correspondence with regard to One Time Settlement for closing the loan account and demanding list of documents mentioned in the Declaration Deed dated 25-09-2003 along with the details of the complaint filed against the Manager Mr. Nikhil Nikunj. It is further stated that all the above RTI applications were sent on 25-04-2019 to the Respondent Bank and a combined reply was received on 20-05-2019 from the Respondent Bank with evasive reply and incomplete documents. Aggrieved by this, the Applicant further filed RTI Appeal before the Appellate authority and a reply was received on 26-06-2019.

1. 4. It is further submitted by the Applicants that after receiving all the documents, they learnt about the Respondent No: 1 filing SA No: 68/2012 on 20-03-2012 for stopping the Respondent Bank from disposing the mortgaged property under SARFAESI Act. The Applicant further stated that in SA No: 68/2012 at Para "H" & "L", the Respondent No: 1 has confirmed that he had requested the Applicants to hand over the possession but the possession was not handed over to him saying that the documents of sale deed registered with Sub Registry Office is under progress of registration. He was further asked to give an application to deliver the original documents and accordingly he addressed a letter to the Sub Registry Office, Surat to deliver the original sale deed registered under Sr.No: 7951 dated 30-07-2004 to the advocate Respondent No: 3 and the said letter was acknowledged by the Sub Registry Office at Surat. The Respondent No: 1 waited for the release of the property but on 12-03-2012, he came to know that the Respondent Bank had taken physical possession of the said property.

2. 5. The SA No: 68/2012 is filed by the Respondent No: 1 Shri Rambalisinh Rampratapsinh Badoriya wherein he has submitted that he is a third party and is neither the borrower nor guarantor in respect of the credit facilities sanctioned by the Respondent Bank. He has further stated that he has purchased the above mentioned property prior to the alleged mortgage created in favour of the Bank from the Applicant Mr. Sakham Pandurang Malgaonker in the Year 2004 by registered Sale Deed which is registered under Sr.No: 7851 dated 30-07-2004.

3. 6. The Applicants while going through the records found that the Respondent No: 1 had not made the Applicant No: 2, a party to the SA and though Applicant No: 1 was made a party, he was not served with the Notice. The Respondent No: 1 had forged the signature of the Applicant No: 1 on the copy of the Dasti service issued by the Hon'ble DRT on 19-06-2014 and had produced the same on the record of SA No: 68/2018 as if it was duly served. The Applicant further submitted that Respondent No: 1 had filed an affidavit on 24-07-2012 (**Annexure J**) for appointment of Court Commissioner wherein the Respondent No: 1 in Para No: "5" has stated that he is in legal possession and control of the property which is a false statement. It is MA 20/20204

pertinent to note that the Court Commissioner also did not issue any notice to the Applicant for remaining present at the time of visit of Court Commissioner. The report of Court Commissioner dated 13-08-2012 and the notice dated 09-08-2012 is at (**Annexure K**).

1. 7. The Applicant has further submitted that the Respondent Bank through its then Manager, Mr. Mukundbhai M. Parikh had filed one affidavit (**Annexure L**) dated 10-09-2012 wherein it was stated that the Respondent No: 1 had suppressed the material facts and misled the Hon'ble Tribunal. In Para No: 5 & 7 the Respondent Bank had admitted that the possession was taken from the Applicant and not from the Respondent No: 1.

2. 8. The Applicant further submitted that unaware of the litigation pending before Hon'ble DRT, the Applicant No: 2 had settled the Loan Account by OTS mode by giving two cheques dated 20-09-2017 and 11-12-2017, which were duly realized. The Applicant further states that although the Officer of the Bank was fully aware of the litigations, the Applicant was not informed of the same. After the repayment was done by the Applicant under OTS, Mr. Nikhil Nikunj, Sr. Manager of the Respondent Bank in collusion with Respondent No: 1 had filed a bogus affidavit dated 24-12-2018 (Annexure M) wherein it was solemnly affirmed on oath that the Respondent Bank has taken over the possession from the Respondent No: 1 and confirmed that the Respondent No: 1 has made the repayment.

3. 9. It is further submitted that the Applicant's son lodged a complaint dated 30-12-2019 before the Commissioner of Police, Surat City complaining about the whole incident but the same was rejected by the Police Inspector of Pandesara Police Station on 19-01-2020 under the guise of it being a Civil dispute.

4. 10. Under these circumstances, the Applicants have submitted that the Respondent Nos: 1 and 2 in collusion with each other have played fraud with the Hon'ble Tribunal to pass an erroneous order and prayed that order dated 27-12-2018 be recalled. The Applicant further submitted that though the physical possession of the mortgaged property was taken over from the Applicants, it was wrongfully stated in the affidavit dated 24-12-2018 of Mr. Nikhil Nikunj that "the Bank has taken the physical possession from Mr. Rambalisinh Badoriya of the mortgaged property on 09-01-2012" while the subsequent affidavit filed in the Year 2018 is quite contrary to the affidavit dated 10-09-2012 by the then Branch Manager of the Bank Mr. Mukundbhai M. Parikh.

5. 11. The Applicant has quoted the judgment of the Hon'ble Patna High Court in the matter of Dilipkumar son of Shri Rajkumar Paswan V/s Union of India & Ors bearing Letters Patent Appeal No: 1029 of 2018 has held that the *Ld. Single*

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*Judge has not committed any error in holding that the DRT would have the jurisdiction to review its own order passed under SARFAESI Act, 2002.* The Applicants further relied upon the judgment of the **Hon'ble Supreme Court pronounced in the matter of State of Maharashtra V. Rattanlal, reported in (1993) 3 SCC 326 in Para 4 & 5.** Further, the Applicant has weighed upon the judgment of the Hon'ble Apex Court pronounced in the matter of **Madhukar Sodbha Shivarkar V. State of Maharashtra, reported in (2015) 6 SCC 557, wherein in Para 27** it has been observed that **"Fraud vitiates everything and any order rendered on the basis of fraud is void."** The Applicant has further relied upon the judgment of the Hon'ble Debt Recovery Appellate Tribunal in **Standard Chartered Bank V/s. Radnik Exports, Ors, 2012 SCC OnLine DRAT 66**, wherein it has been held that in case the Tribunal finds that an order was obtained by playing fraud, it has inherent powers to recall the said order. To come to such a conclusion, the Hon'ble DRAT relied upon a judgment of the Hon'ble Apex Court in **Suita Devi Singhania Hospital Trust V/s. Union of India (2008) 16 SCC 365; Deepa Gourang Murdeshwar Katra V/s. Principal V.A.V College of Arts,(2007) 14 SCO 108 and Indian Bank V/s. Satyam Fibres (India) Pvt. Ltd, (1996) 5 SCC 550.** Even the Hon'ble Apex Court has held in **A.V. Papayya Sastry, Ors V.s. Government of Andhra Pradesh, Ors, (2007) 4 SCC 221**, that the fraud vitiates every solemn act, whether temporal or ecclesiastical. Even in the case of **Hamza Haji V/s. State of Kerala, Ors. (2006) 7 SCC 416**, the Hon'ble Apex Court held that one who secures a decision by fraud cannot be allowed to enjoy its fruits.

1. 12. The Applicant has prayed to allow the present application and condone the delay of 519 days in filing this MA for review/recall of the order dated 27-12-2018 passed in SA No: 68/2012, by this Tribunal.

2. 13. He has further requested to direct the Respondent Nos: 1 & 2 to hand over the possession of the mortgaged property to the Applicant.

3. 14. On the contrary the Respondent No: 2 (Bank) has submitted that the Applicant Mr. Sakharam Pandurang Malgaonkar has sold the mortgaged property of Punjab National Bank through Registered Sale Deed on 30-07-2004 vide Sr. No: 7851 at Sub Registrar Office, Surat to Respondent No: 1 Mr. Rambalisinh Rampratapsinh Badoriya within one year of mortgage deed without consent and intimation to the Respondent Bank.

4. 15. Further it is submitted by the Respondent Bank that on perusal of the registered Sale Deed dated 30-07-2004 in Page Nos: 7 & 8 Shri Sakharam Pandurang Malgaonkar stated as under :

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**"Today we the second party has handed over peaceful and physical vacate possession of the property to the first party. Therefore, in the future, second party shall not make any dispute regarding possession, and if we do, it shall be void by this Sale Deed."**

He further confirmed that the said Sale Deed is registered in the office of the Sub Registrar, Surat on 30-07-2004 at Registration No: 7851 and at present the property stands in the name of Rambalisinh Rampratapsinh Badoriya. He has further scrutinized the Sale Deed registered in the office of Sub Registrar, Surat on 10-09-1996 at Registration No: 10970 executed in favour of Mr. Sakharam Pandurang Malgaonkar. The Respondent Bank has categorically mentioned that while executing the Sale Deed Mr. Sakharam Pandurang Malgaonkar in his power of attorney has mentioned that since his business was running in great loss and he couldn't pay the instalments to the Bank, he had approached one private financier Mr. Rajbalisingh Rampratapsinh Badoriya for financial assistance and had given him false promises to pay back the due amount to the Bank which was to be paid by him. Believing his false promises, the Applicant had signed and executed various documents which were prepared by Mr. Rajbalisingh Rampratapsinh Badoriya but he had not paid any amount to the Bank and cheated him. The Applicant has given the same reason in his police complaint dated 30-12-2019 also.

1. 16. The Respondent Bank has further submitted that although 20 years have passed from the date of execution of Sale Deed dated 30-07-2004 but till May 2025, the Applicant has not challenged the Sale Deed before the Hon'ble Civil Court and hence on this ground itself, the Applicant has no base to condone the delay. The Applicant Bank has further stated that the Applicant always created doubts about his whereabouts and he has mentioned that due to personal circumstances he has started residing at Mumbai whereas in the Police compliant he has mentioned that he has started buffalo stable in his native at Maharashtra due to financial loss and in one of his letter dated 06-09-2007 he has mentioned that he was out of station for some business purpose. The Respondent Bank has stated that the Applicant has approached the Bank on 11-02-2019 (i.e. after 11 years) to receive the original documents and in the affidavit dated 29-01-2024 signed by Mr. Nikhil Nikunj, the issue about his whereabouts were raised. Hence, the Applicant has misguided the Respondent Bank about his whereabouts.

2. 17. The Respondent Bank has further submitted that the Respondent No: 1 Mr. Rambalisinh Rampratapsinh Badoriya has given affidavit and declaration to the Bank stating that the said property is under his possession and ownership since 30-07-2004. The Respondent Bank has further submitted that the Respondent No: 1 has also given Indemnity Bond against all consequences that may arise and from handing over the possession of the said property.

3. 18. The Respondent Bank has submitted that the dispute is between the borrower i.e. Applicant Shri Sakharam Panduran Malgaonkar and the Purchaser Respondent No: 1 Mr. Rambalisinh Rampratapsinh Badoriya but unnecessarily MA 20/20207

the Respondent Bank was dragged in this matter and they have prayed that this MA is required to be dismissed and not to condone the delay.

1. 19 I have heard the Ld. Counsels for both the parties and perused the records. The application for condonation of delay filed by the Applicant, in this case can not be properly decided without touching the merits of the case.

2. 20. On the basis of pleadings of both the parties, there are certain admitted facts which are necessary to be mentioned here for proper understanding of this case. Following are the facts admitted to both the parties :

1. (i) The Applicant No: 1 Shri Sakharam Panduran Malgaonkar is the borrower and mortgager in this case who has taken Term Loan of Rs.5,50,000/- on 25-09-2003 from the Respondent No: 2 Bank.

2. (ii) After taking this Loan, the Applicant No: 1 has sold the mortgaged property, through Registered Sale Deed dated 30-07-2004 vide Sr. No: 7851 at Sub Registrar office, Surat to Respondent No: 1 Mr. Rambalisinh Rampratapsinh Badoriya, without any consent, information or permission from the Lender/Respondent Bank.

3. (iii) Although the Applicant claims that the transfer was done on the basis of false promise of the Respondent No: 1 that he will repay the Loan in this case, which he did not comply and so the sale was not completed and no possession was transferred to Respondent No: 1, but there is nothing on the record to prove such promise by Respondent No: 1.

4. (iv) This is also an admitted fact that till date, after passing of almost 21 years, there is no averments or proof on behalf of the Applicant to indicate that he has made any effort for cancellation of Sale Deed dated 30-07-2004, by filing any suit before any court of competent jurisdiction.

5. (v) The possession of the disputed property in this case was taken in the Year 2007, after initiation of securitization proceedings by the Respondent Bank.

6. (vi) The Term Loan in this case was repayed through One Time Settlement between the Respondent Bank and the Applicant No: 2 (the wife of Applicant No: 1) and "No Dues Certificate" was issued by the Respondent Bank on 15-12-2017.

7. (vii) The issue of collection of original documents and restitution of possession was raised by the Applicant, in the Year 2019, through representation before Respondent Bank and Police complaint etc., almost after 2 years of issuance of No Objection Certificate, in favour of Applicant No: 2.

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(viii) The Respondent No: 1 Mr. Rambalisinh Rampratapsinh Badoriya, has given affidavit and declaration to the Respondent Bank, that the said property is under his possession and ownership since 30-07-2004 and he has also executed Indemnity Bond against all consequences that may arise with regard to ownership and possession of the secured assets in this case.

21. In presence of the above mentioned admitted facts in this case, the Applicant appears to be grossly and vehemently negligent in invoking his so called rights, which gives place for doubting his intentions. It gives grounds to endorse the arguments of Respondent Bank that the delay in this case is deliberate and designed.

22. The root cause of dispute in this case is between the Applicant No: 1 and Respondent No: 1 and it is based on the Sale Deed which was admittedly executed by Applicant No: 1 in favour of Respondent No: 1, on 30-07-2004 and it was duly registered in the concerned office of Sub Registrar by which the Applicant No: 1 has transferred his title and ownership in favour of the Respondent No: 1 with regard to the secured assets in this case. Although, the Applicant claimed that the Sale Deed was executed on false promises of Respondent No: 1 but a registered Sale Deed cannot be deemed to be ineffective and cancelled on oral statement of the Applicant. For this the law has prescribed procedure i.e. moving an Suit for cancellation of Sale Deed before a competent Court of Civil jurisdiction, which has not been done by the Applicant No: 1 in last 21 years.

23. It is also noteworthy that the Sale Deed was executed after the property was mortgaged in the Year 2003 in connection with the Term Loan in this case with the Respondent Bank by the Applicant No: 1 and the Sale Deed was executed without the permission, consent or information to the Respondent Bank. Although, the Applicant claims that in 2007, when the possession of the secured assets was physically taken by the Respondent Bank, he was in the possession of the secured assets but it is very surprising that if the possession was taken from the Applicant then why he has not initiated any securitization proceedings or any type of action against the Respondent Bank.

24. In SA No: 68/2012, the Applicant No: 1 was made a party but he claimed that the Respondent No: 1 has not served any notice to him and on the contrary he forged the signature of the Applicant No: 1 on the dasti service and filed the same. A document which is filed in the files of the SA No: 68/2012 cannot be deemed to be forged only on oral statement of the Applicant No: 1. The Applicant also admits indirectly that when the Court Commissioner on the application of Respondent No: 1 visited the secured assets, he was not present at the secured asset for that he has given an excuse that the Court Commissioner has not issued any notice to the Applicant at the time of visit of the Court Commissioner. All these facts strengthen the allegation of the MA 20/20209

Respondent Bank that the delay in this case is deliberately caused by the Applicant No: 1 with the purpose to complicate this case.

1. 25. It is also noteworthy that as per the statement of the Applicant himself the loan was settled by OTS proposal and the settlement amount was deposited by the Applicant No: 2 to the Respondent Bank in the Year 2017. Even after that, the Applicant has approached the Respondent bank only on 11-02-2019 much after the possession of the secured assets was returned back to the Respondent No: 1, vide order dated 27-12-2018 of this Tribunal.

2. 26. It is also worth mentioning that the Respondent Bank has taken an Indemnity Bond from the Respondent No: 1 against all consequences that may arise and from handing over the possession of the said property which is sufficient to protect the right of the parties.

3. 27. This Tribunal endorse the arguments of the Respondent Bank that the real dispute in this case is between Applicant No: 1 and Respondent No: 1 and this dispute relate to the ownership and title of the secured assets which cannot be decided by this Tribunal. Only a Civil Court of competent jurisdiction can decide the ownership and title of the secured assets and validity/nullity of Sale Deed dated 03-07-2004 executed in favour of Respondent No:1 by Applicant No: 1.

4. 28. In the facts and circumstances of this case, it is clear that the Applicant No: 1 has deliberately not pursued his claim at the right time and made a very delayed efforts, that too in wrong forum to claim his so called rights. The explanation to condone the delay in this case does not create any confidence.

5. 29. In the fact and circumstances of this case. This Tribunal is of the view that the delay condonation application of Applicant No: 1 is devoid of any merit and deserves to be dismissed, without any order as to cost.

**ORDER**

1. 1. The MA No: 20/2020 is hereby rejected with no order as to cost.

2. 2. Let this file be consigned to record.

Pronounced in open Court on **24th day of June, 2025.**

(PANKAJ KUMAR UPADHYAY) PRESIDING OFFICER, DRT-II, AHMEDABAD

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