Debts Recovery Tribunals and Appellate Tribunals
Mrs Akshata Ashok Haldipur vs Bank of Baroda on 22 September 2025
DEBTS RECOVERY TRIBUNAL No.3, MUMBAI
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ORDER
IN INTERLOCUTORY APPLICATION NO. 2881 OF 2025 In MISC APPLICATION NO.69 OF 2025 (Delivered on 22.09.2025)
MRS. AKSHATA SHOK HALDIPOUR
... Applicant
Versus
BANK OF BARODA & ORD
... Respondent
Advocate Charles Desouza for the Applicant.
Advocate Anup Khaithan a/w Adv. Akshita R. i/b Anup Khaitan & Co. for the Respondent No.1.
ORDER
1) The application is filed U/s 19(25) Recovery of Debt and Bankruptcy Act, 1993 herein after stated as RDB Act, requesting to:
1. a) Declare applicant as bonafide owner of the property of Flat No. 201 in C' Wing of the building;
2. b) Modify the order dated 20.07.2015 to the effect that flat No. 201 in C' Wing belongs to applicant.
3. c) Modify the order dtd. 20.07.2015 to the extent that the said order is excluding the flat No. 201 in C'Wing.
d) to set aside the order of RO on 23.02.2023 appointing commissioner to take physical possession on 22.09.2025.
2) It is contended by the applicant that the Flat No. 201 was sold by R4 to the borrower, who had created an equitable mortgage with R 5 bank for the Flat No.201 in A' Wing. R6 had purchased the property from borrower on 10.10.2023 by registered agreement wherein the property is described as the flat in C' Wing, R 6 availed a loan from NKGSB Co-operative Bank R 5 by mortgaging the subject property.
3) On R 5 initiating measures under SARFAESI Act, advocate for Bank of Baroda, addressed R 5 to verify the mortgage created for the loan of R 6, asserting its charge over the flat No. 201 in A'Wing. The application filed by bank as OA 341 of 2008 for recovery and declaration of valid mortgage, over flat No. 201 -A-Wing before DRT was allowed on 20.07.2015 declaring flat no. 201-C-Wing as mortgaged on favour of bank.
4) Applicant contends that, R 6 then gifted the subject property to applicant on 29.08.2010 and the intervening application by applicant in the recovery proceeding was dismissed by RO. On 10.08.2015, R 4 addressed letter confirming that R 6 is the owner of the subject property which was subsequently transferred by gift deed to applicant. The possession intended by Court Commissioner is scheduled to be effected on 22.09.2025. So, applicant request to allow the MA filed by her granting the relief sought for as stated above.
5) R 1 / bank contends that the prayers in this application cannot be granted U/s. 19(25) of RDB Act. The application is beyond the period of limitation. After passing of Judgment this Tribunal has become fructuous officio'. The respondent 3 to 5 who are necessary parties are not made parties and without their junction the matter cannot be proceeded. No interim orders can be passed for prayers which cannot be entertained U/s 19(25) of RDB Act.
6) Heard both sides.
7) The requests of the applicant such as to declare him as a bonafide owner of flat 201-C' Wing, that the said premises belongs to applicant and to modify the order of the Tribunal to the extent that it excludes the flat No. 201 in C' Wing cannot now be considered under the provision U/s 19(25) of RDB Act. It is for the applicant to resort to appropriate measures, if so desired, for the said reliefs.
8) But the provision U/s 19(25) now comes into operation here. It is admitted by both sides that in the order passed in OA 341 of 2008 R6 is not a party in the proceedings. The reasons for not impleading R6 in that OA by the bank is not explained even now.
9) It is to be noted that the Judgment of this Tribunal in OA 341 of 2008 notes that there is an ambiguity for the identity of the subject property, and even after arraying R 5, the mortgagee of R 6, R 6 is not arrayed as a party in the said OA No. 341 of 2008 by the bank.
10) As contended by R 1 /bank itself, the participation of R 2 to R 6 in this MA is highly essential and without having them the MA cannot be properly disposed off. So they should be impleaded for a proper disposal of the matter.
11) At the same time, the contentions now offered does show that there is an identity dispute with respect to the premises. So unless and until a finality is arrived on the identity issue as to whether it is Flat No.201-A or Flat No.201-C, allowing the possession to be effected on 22.09.2025 would not be proper, it is here, the provisions U/s. 19(25) RDDB Act gets attracted.
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12) Deferring the possession now intended, after impleading necessary parties as R 2 to R 6 as is now contended by R 1, and after having a specific conclusion as to the identity of the actual premises, as to whether it is Flat No. 201-A' wing or Flat No. 201-C' wing, which is actually mortgaged, would be proper course now to be effected as it would not cause any grave injury or harm to either side.
13) So the intended possession on 22.09.2025 is deferred. It is open to R 1 to take further steps after the parties as R 2 to R 6 are got impleaded as urged by R 1/bank, by applicant and after hearing them. For steps by applicant, adjourned to 04.11.2025
(Dictated to my Stenographer, transcribed by her corrected and signed by me and pronounced in open forum on 22.09.2025)
Date.:22.09.2025
I/c. Presiding Officer Debts Recovery Tribunal, Mumbai-III (Sreekala Suresh)