MS AJAY BOOK DISTRIBUTORS vs DENA BANK on 25 April 2019

J U D G M E N T

(Delivered on this 25 t h day of April, 2019)

01.00 This is an application filed by the applicant requesting this Tribunal to condone the delay of 318 days in filing the Securitization Application. Applicant stated in his application that the applicant has filed Securitization Application challenging the order passed by the Ld. District Magistrate in respect of the tenanted property of the applicant. It is the case of the applicant that the respondent bank has forcibly evicted the applicant without following due process of law. The applicant being aggrieved by the coercive action o f the respondent bank, has filed this application. 01.01 The applicant is the tenant and was occupying the ground floor of the schedule property and first floor is in the possession of landlord and guarantor of the bank loan i.e. R1 herein. He was staying on the first floor of the schedule property. The applicant is neither borrower nor guarantor. Applicant was lawfully and peacefully occupying the ground floor of the schedule property since 2009 till 2.2.2019. The said schedule property was mortgaged to R3 bank by R1 somewhere in the year 2014-15. The applicant was not at all

Gvp/- aware about this fact. Due to non payment of bank dues, the bank initiated action against Respondent nos.1 and 2. R3 bank approached Ld. District Magistrate U/s 14 of the SARFAE SI Act and obtained favourable orders. The Ld. District Magistrate, without observing the facts, passed an exparte order. The applicant was not made party to any of the proceedings. 01.02 R3 bank took possession of the schedule property on 2.2.2019. The applicant was evicted forcibly from the schedule property and he was even not allowed to remove his office goods, material and machineries. After being evicted from the schedule property, the applicant started search for legal remedies available to him. After being informed regarding this forum, the applicant had approached this Tribunal. 01.03 There has been no negligence or mistake on the part of applicant in filing the present appeal. Whatever delay occurred, it has occurred b ecause of fraud played by all the respondents upon the applicant. The applicant was never made aware regarding any of the facts happening between respondent nos.1 to 3. 01.04 The applicant has not intentionally or deliberately caused the delay in approaching this Tribuna l and, therefore, the applicant is required to be protected . Even if there is about 318 days, the applicant craves this Tribunal to condone the delay in filing the S.A.

Gvp/- 02.00 Chief Manager of R3 bank filed its reply though his affidavit in Exh.11 stating that the applicant is neither borrower, guarantor nor mortgagor in the loan transaction with R3 bank. Admittedly, there is no relationship between present applicant and R3 at any point of time. It is specifically denied that present applicant is a tenant who was inducted by the owner of the property as mentioned in the schedule of property and was occupying ground floor of the property. The alleged tenancy is totally denied by R3 bank. The alleged tenancy has been denied in toto by R3 bank. It is a matter of r ecord that said property was mortgaged by R1 in favour of R3 bank as per equitable mortgage dated 30.3.2014 and not in 2015. It is totally denied that applicant was not aware about the said fact of mortgage. It is not disputed that R2 is the principal bo rrower and R1 is the guarantor to the loan sanctioned by R3 bank to R2. Subsequently, the said loan has been NPA and, therefore, action under the provisions of SARFAESI Act has been initiated against the present respondent nos.1 and 2 and accordingly the order U/s 14 was passed by the Ld. District Magistrate, Nagpur on the application filed by R3 bank. The Ld. District Magistrate’s order is perfectly legal, valid under Law. 02.01 As per the order of the Ld. District Magistrate, the Tahasildar under the provisions of SARFAESI Act took physical possession of the secured asset and handed over to R3 bank on 2.2.2019. However, it is submitted that the allegations

Gvp/- against R3 are totally denied in toto. However, as per the orders of the Hon’ble High Court in W.P. No.1872/19 filed by the present applicant, the Hon’ble High Court directed the parties to remain present at the property in question on 5.4.2019 so as to get delivery of the movables from the R3 bank, which are lying in the premises and accordingly, as per the order of the Hon’ble High Court, the articles are removed. 02.02 Application for condonation of delay of about 318 days in filing present appeal before this Tribunal by the present applicant has not been explained by the present applicant. Applicant has not explained the day to day delay in filing this appeal before this Tribunal. Moreover, there is no pri ma-facie reasons nor any specific bonafide submission has been mentioned nor explained in the present application nor any averment in this behalf. On this count also, the present application is liable to be dismissed. Moreover, the applicant was not due diligent to file the present appeal / application before this Tribunal. The reason is not genuine and bonafide and hence present application is liable to be rejected and it may kindly be rejected with costs. Hence, the appeal is liable to be dismissed and it may kindly be dismissed with costs. 03.00 Notice to R2A was not sent by the applicant by registered post A.D., by specified courier and also by humdast as requested by the applicant inspite of the opportunities granted. Subsequently, on 24.4.2019, applicant filed pursis in

Gvp/- Exh.13 stating that it is unable for his Advocate to appear before this Tribunal on 24.4.2019 as his advocate had been t o Mumbai and that he wants to argue the case for himself. On the prior day, he got his arguments submitted through Mr. Karan Sachdev, Advocate, who endorsed on Exh.13 that this Tribunal gave patient hearing to him to put applicant’s case before this Tribunal. In addition to the arguments of Advocate Mr. Karan Sachdev, Advocate’s on behalf of applicant’s advocate, the arguments of the applicant, advocates representing R1, R2B and R3 were heard. On 25.4.2019, applicant filed pursis in Exh.14 stating that a pplicant is not pressing the M.A. / S.A. against R2A – Mr. Sameer Chatte, R/o. Butibori, Nagpur with all prayers and hence this M.A. / S.A. may be withdrawn against R2A. Said Exh.14 pursis was recorded. Applicant as well as the contesting advocates agree d for withdrawal of the case on R2A. Hence, the case on R2A was dismissed as not pressed. Hence, all the remaining parties were given sufficient opportunities to submit their arguments for disposal of this case within 6 weeks as was directed by the Hon’ble High Court, Nagpur Bench in W.P.No.1872/19 on 2.4.2019 and to comply the same, this order is being pronounced well before the stipulated period. 04.00 Now, the points for consideration are:-

(i) Whether the delay of 318 days can be condoned in filing the Securitization application?

Gvp/-

(ii) To what reliefs? 05.00 Point no.(i) Learned Advocates of R2B and R3 vehmently opposed to condone the inordinate delay of 318 days. Though, R2B had not specifically filed a reply and submitted oral arguments opposing this application by endorsing an undertaking on his Vakalat that “we are not filing any written reply, we have done with oral arguments” 05.01 The undisputed facts in this case are that Respondent no.2 took loan from R3 bank, for which 1 s t respondent gave schedule property as security and mortgaged the same. As the account became NPA, R3 bank initiated SARFAESI action and obtained orders from the Ld. District Magistrate to take possession of the secured asset which is consisting of building situated on Plot No.14A in the lay out of the Nagpur Govt. Clerk Co-op. Housing Society, City Survey No.1022, Ward No.70, House No.713, Nabab Layout, Mouza Pandhrabodi. Admittedly, the Ld. Additional District Magistrate, Nagpur passed order dated 16.2.2018 U/s 14(2) of the SARFAESI Act directing the Tahasildar and the police officials to take possession of all that piece and parcel of the land, residential building, factory shed constructed on Plot No.14A, House No.713 situated at Mouza Pandhrabodi, as can be seen from page No.154 of the paper book. Applicant claims that he is a tenant on the ground floor of the said building since 2009 and that bank loan is of the year 2013 and in that way his tenancy is prior to the admitted

Gvp/- mortgage. Ld. Advocate for R3 vehmently oppose d the same and contended that under the Maharashtra Lease and Tenancy Act, when the lease is for more than 1 year, it should be compulsorily registered and in the absence of a registered lease deed, the contention of the applicant are to be negatived. There is some substance in the contention of Ld. Advocate of R3 bank. Admittedly, the applicant is coming forward with an unregistered lease deed, though he is said to be the lessee since the year 2009 of the disputed building. It is not known as to why he has not got his lease registered since the year 2009 when he is carrying on the activities of books publication work and distribution of books. The applicant had not showed his alleged possession over the disputed property by filing and marking the tax receipts, electricity bills, phone bills etc to show his possession on the disputed property. That apart, when the loan transaction is going on between the respondent nos.1 to 3 since long time and when respondent no.3 got issued notices and took symbolic possession of the property. Applicant though being an Engineering graduate well versed with men and matter, have approached this Tribunal with inordinate delay of 318 days. As per the established rulings of the Hon’ble Supreme Court and other Constitution al Courts, U/s 5 of the Limitation Act, the applicant has to explain the day to day delay. In the present application, the applicant simply mentioned the pleadings in a casual way and had not explained

Gvp/- the inordinate delay of 318 days. Even according to him, he was not unwell or out of station during said period of 318 days. His own landlord i.e. R1 is not even admitting his tenancy and most of the electricity bills filed with this M.A. are in the name of the 1 s t respondent only. The xerox copies of the phone bills are in the name of the applicant but they are showing the location of the applicant at Itwari, Nagpur. The schedule disputed property is in Mouza Pandhrabodi. So, the tax receipts and the telephone bills in the name of the applicant showing his possession over the disputed property located in Pandhrabodi locality are not filed. That apart, the applicant is not able to get over the serious legal hurdle of not getting his alleged lease with R1 duly registered as required under the Tenancy laws passed by the Maharashtra Government, as per which a lease deed is a compulsory registrable document and admittedly applicant had no registered lease deed in his favour. So, the applicant’s case has to fail on this legal aspect.

05.02. As far as factual aspects are concerned, though admittedly the applicant is an engineering graduate, experienced with men and matter, had not exercised his rights within time and came with an inrodinate delay of 318 days and said 318 days inordinate delay was not at all exp lained on day to day basis which is a statutory requirement. If delay condonation of this nature without explaining the day to day delay are entertained, there will not be any end to the litigation

Gvp/- and the public money that has to be recovered by nationalized banks like 3 r d respondent bank will be delayed and the very purpose of establishment of the DRTs for speedy recovery of the public money under RDDB & FI Act will be defeated. As the applicant himself failed to establish his case on the legal and factual side, he is not entitled for the relief of condoning inrodinate delay of 318 days. Hence, this point is answered accordingly in favour of the respondents and against the applicant. Point no.(ii) Hence, I pass following order:-

ORDER

M.A. is dismissed. Interim protection / I.As pending, if any, are deemed to have been vacated / closed. Each party do bear their own costs.

Nagpur

Dt.: 25.04.2019 (Chikkam Vijay Mohan) Presiding Officer Debts Recovery Tribunal Nagpur.