Renu Enterprises vs Kotak Mahindra Bank Limited on 16 April 2024

1. By way of the present MA, the Applicant is praying that the order dated 09.03.2021 passed by this Tribunal in OA No.913/2016 whereby the Applicant’s property being all that place and parcel being Flat No.408/402, 4th Floor, Matoshree Apartment, Jambali Naka, Agyari Lane, Thane (West), Thane-400060 is wrongly declared as mortgaged property (for short “the property in question”), be quashed and set aside and/or pleased to modify the same in respect of the property in question.

2. Ld. Counsel for the Applicant raised various objections on the merits whereas in rebuttal, the Respondent raised the issue of limitation for filing the MA. In this regard, Ld. Counsel for the Applicant submitted that in the recovery proceeding, the Ld. Recovery

Officer, DRT-I, Mumbai vide order dated 28.11.2023 issued Attachment Warrant and thereafter vide order dated 28.11.2023 directed the Court Receiver, Adv. Abhidnya Salvi to take the physical possession of the Flat No.408 of the property in question thereafter, the Court Receiver issued notice dated 15.02.2024 to take physical possession of the Flat No.408 of the property in question which was wrongly pasted on the Flat No.401 of the property in question.

3. He further submitted that the Applicant immediately moved an Intervention Application before the Ld. Recovery Officer of this Tribunal, which was rejected by the Ld. Recovery Officer, observing that the Ld. Recovery Officer cannot travel beyond the Recovery Certificate. Therefore, he submitted that the present MA is within the limitation. In support of his contention on the point of limitation, he relied upon the judgment of Hon’ble Bombay High Court in Nandu D. Chhabria Vs. State Bank of India & Ors. Writ Petition No.5012/2011.

4. He also submitted that the Applicant is the owner of the entire building and the said Flat No.408/402 and the same has not been sold to the Respondents and not at any point of time “No Objection” was issued by them for creation in favour of the Banks/FI. The Respondent No.2 &

have forged and fabricated certain documents and have mortgaged the said flat with various banks and financial institutions, thus, there is no valid and enforceable mortgage in favour of the Respondent bank. Thus, the order dated 09.03.2021 passed by this Tribunal is required to be set aside and modified accordingly.

5. Ld. Counsel for the Respondent objected to the present MA and submitted that the present MA is barred by limitation. He submitted that the Applicant was aware of the enforcement of security rights of the Respondent right from 2008/2009 which is evident from his Suit filed in the year 2010 which was afterthought suit filed admitted to be filed post enquiries by Banks, and when the SARFAESI Action was initiated by the Respondent No.1 and notices were issued at the secured asset.

6. He further submitted that Applicant has admitted in various documents including its suit and other exhibits in the present MA including the electricity bills produced that the Flat No.408 existed and hence the Applicant is trying to mislead this Tribunal as well as

Respondent No.1. He further submitted that the possession notice was pasted on the Flat No.402 and not on Flat No.401 as alleged by the Applicant. The change of the flat nos has been done deliberately and the Applicant in collusion with society delaying and defeating the claim of this Respondent. Thus, he submitted that the present MA may be dismissed with cost.

7. Considered the contentions of the parties and gone through the record.

8. It is reveals from the record that at para 5.11 and 5.12 of the present MA, the Applicant has stated that:- “The Applicant have filed Complaint with Police Authorities, Thane on 29/10/2007 and FIR was registered on 07/04/2008 U/s 154 of Cr.P.C. as to how the fraud has been perpetrated by the Respondent Nos.2 & 3. The Applicant states that subsequent to the lodging of F.I.R, the necessary steps have been taken for arresting the said Respondents. The Applicant states the copies of forged and fabricated documents on the basis of which the loan was obtained by mortgaging the said property are already submitted to the Police Department and the investigation in respect of the same is going on. The Applicant states that the said Respondents were called for giving a statement and they had admitted about the fraud, fabrication and forgery committed by them. The Applicant crave leave of this Hon’ble Tribunal to refer to and rely upon the relevant documents as and when produced. 5.12 The Applicant have also filed a Special Civil Suit No.338 of 2010 before the Court of the Civil Judge (Senior Division) Thane impleading the banks & FI and also the present Respondent bank, who have granted loan facilities to Respondent Nos.2 and 3 on the said flat on the strength of forged and fabricated documents, for declaring the Applicant as a rightful owner of the said flat and restraining the banks from taking any adverse steps against the said flat including taking the forcible physical possession of the said flat. The Ld. Civil Judge, S.D. Thane has vide order dated 01/10/2018 has allowed the Application at Exh. 5 & 92 filed by the Applicant in that suit under Order 39, Rule, 1 2 of the CPC & has restrained the Respondent bank and other banks /FI from taking possession of the suit flats/subject flat till the decision of suit. Hereto annexed and marked as Exhibit ‘A’ is a copy of the order dated 01/10/2019 passed by the Ld. Civil Judge, S.D. Thane. The said suit is pending.

9. On perusal of the above paras, it is clear that the Applicant was well aware of the charge of the Respondent Bank on the property in question from 2008/2009 as well as further actions initiated by the Respondent Bank in respect of the property in question.

10. In the present MA, the Applicant is claiming limitation from the notice issued by the Court Receiver dated 15.02.2024 in pursuance to the order dated 28.11.2013 passed by the Ld. Recovery Officer whereas the main relief in the present MA is against the order passed by this Tribunal for declaration of the mortgage thus, reliance of the Applicant on the Court Receiver Notice dated 15.02.2024 for the purpose of limitation is absolutely uncalled for. In fact, as the Applicants are challenging the order for declaration of mortgage by this Tribunal and thus, the Applicants are actually challenging the order dated 09.03.2021 of this Tribunal. Thus, admittedly the present MA is highly time barred and in the MA, the Applicant even not mentioned/prayed for condonation of delay.

11. Even otherwise, since the Applicant in the present MA praying the relief for modification/review of the order dated 09.03.2021 in the OA which ultimately fall within the purview of the review of the order and the provision pertaining to the review of the order has been provided under Rule 5-A

(2) of the DRT (Procedure) Rules, 1993. For the convenience Rule 5(A) is extracted herein below: “(2) No application for review shall be made after the expiry of a period of thirty days from the date of the order and no such application shall be entertained unless it is accompanied by an affidavit verifying the application.” (emphasis provided)

12. The Hon’ble Apex Court in the matter of Standard Chartered Bank V/s MSTC Ltd (Manu/SC/0073/2020) has held that the DRT has no power to condone the delay in the Review Application. In para 14 of the said judgment, it is observed that: “14. The peremptory language of Rule 5A would also make it clear that beyond 30 days there is no power to condone delay. We may also note that Rule 5A was added in 1997 with a longer period within which to file a review petition, namely, 60 days. This period was cut down, by amendment, with effect from 04.11.2016, to 30 days. From this two things are clear: one, whether in the original or unamended provision, there is no separate power to condone delay, as is contained in Section 20(3) of the Act; and second, that the period of days was considered too long and cut down to days thereby evincing an intention that review petitions, if they are to be filed, should be within a shorter period of limitation - otherwise they would not be maintainable.” (emphasis added)

13. Therefore, in the light of the above dictum, this Tribunal has no power to condone the delay in the review application.

14. In so far as judgment relied upon by the Applicant in Nandu D. Chhabria (supra) is concerned, the facts of the said case are totally different as in the said case, the issues was decided for setting aside the ex-parte order however, in the present case, the Applicant is seeking modification/review of the order dated 09.03.2021, therefore, the said judgment is not applicable in the present matter.

15. In view of the above discussions, the present MA is hereby dismissed as barred by limitation. File be closed and consigned to the record room. P.O. DRT-I