Mr Dnyaneshwar Jare vs Corporation Bank on 29 October 2022

ORDER

(Delivered on 29th October, 2022)

1. The applicant, by this application has claimed following reliefs: A. The Hon’ble Tribunal be pleased to quash the impugned Judgment and RC in O.A. No.163/2006 dated 13.09.2010 fraudulently obtained by respondent No.1 Bank and opportunity be granted to applicant to contest the matter and after making the applicant respondent and after considering the evidence the OA be decided on merits. B. The Hon’ble Tribunal be pleased to vacate the charge created upon the property being suit property more particularly described in Para 5.1 of this M.A. C. The respondent No.1 bank be directed not to take any steps in RP which may be initiated pursuant to impugned RC and Judgment dated 13.09.2010 against the property more particularly described in

Para 5.1 of M.A. D. The Hon’ble Tribunal be pleased to declare that there is no nexus of the applicant or his property as described in Para 5.1 with alleged claim of the respondent No.1 bank and permanent injunction be granted not to take any steps against the said property to respondent Nos.1 to 16. E. The Hon’ble Tribunal be pleased to declare that applicant is bonafide purchaser in good faith for valuable consideration and consequently suit property is not liable for attachment nor for sale. F. The Hon’ble Tribunal be pleased to direct the respondent No.1 if it has any claim to approach the respondent bank No.2 and settle its due if any. G. The Hon’ble Tribunal be pleased to direct the Respondents to pay the costs of application made by the applicant. H. In the alternative the respondent Nos.1 to 4 and such other interested financial institutions be directed to settle interse their claim and get decided the apportionment of their claim failing which the Hon’ble DRT may please decide the priority of mortgage claim and may decide the first charge holder and accordingly may direct the respondent No.2 to pay such claim as the case may be and it be declared that upon payment and satisfaction of such first charge or such other charges as the case may be, that the suit property is absolutely free from encumbrances and the applicant is owner of the said property and not liable or answerable to pay any single naya paisa to anybody on any account whatsoever after such payment is adjusted. I. Any other order in the interest of justice be passed.

2. The facts mentioned in the Application can be summarized as under:

3. The suit property i.e. Flat No.1, Ground Floor, admeasuring about 630 sq.feet i.e. 59 Square Meters and attached garden space admeasuring 1300 Square Feet i.e. 120.81 Square Meters, A Wing, Ratan Garden, situated at Survey No.32/15/2, at Village Ambegaon Budruk, Taluka-Haveli, Pune was purchased by one Mr. Prafula Somraj Paradkar from builder M/s. Zawar Construction Combines by Agreement of Sale dated 8th October, 2002 and the said transaction was cancelled by executing Cancellation Deed dated 17th October, 2002. Thereafter, Mr. Gautam Nemichand Jain purchased the said suit property from M/s. Zawar Construction Combines by Agreement of Sale dated 17th October, 2002. The purchaser Mr. Gautam Nemichand Jain obtained the loan from respondent No.2 Punjab National Bank for purchasing the suit property and deposited original title deeds with the said bank by executing MOE dated 11th February, 2003. As Mr. Gautam Nemichand Jain failed to repay the loan, respondent No.2 Punjab National Bank took measures under provisions of Securitisation Act and took possession of the suit property in the month of March, 2007. Thereafter, the suit property was sold by private treaty to the applicant in the year 2009 and Sale Certificate dated 31st March, 2009 was executed and later on Sale Deed was executed and original title deeds were handed over to the applicant.

4. Further, Mr. Prafulla Somraj Paradkar obtained loan from erstwhile Corporation Bank, Kharadi Branch by mortgaging same suit property. Mr. Gautam Nemichand Jain had also taken loan from erstwhile Corporation Bank, Camp Branch Pune by mortgaging the suit property. Mr. Prafulla Somraj Paradkar failed to repay the loan, therefore, erstwhile

Corporation Bank, Kharadi Branch filed recovery suit bearing No.SCS 1332/2005 and Corporation Bank, Camp Branch filed Original Application No.163/2006 against Mr. Gautam Nemichand Jain in which Mr. Prafulla Somraj Paradkar and others were also made defendants. The borrowers i.e. Mr. Gautam Nemichand Jain and Mr. Prafulla Somraj Paradkar failed to appear in that OA No.163/2006 proceeding. OA No.163/2006 has been disposed of by this Tribunal by Judgment dated 13th September, 2010 and charge of the amount due is kept on the suit property alongwith one more property and Recovery Certificate was issued accordingly. The recovery proceeding is still pending before the Recovery Officer of this Tribunal.

5. The respondent No.1 erstwhile Corporation Bank has contested this application by filing Reply (Exhibit-23A). Respondent No.2 Punjab National Bank by filing Reply (Exhibit-13) thereby supported the claim of the applicant. Respondent Nos.3, 5, to 16 failed to appear and matter proceeded ex parte against them.

6. Heard learned Advocate for the applicant who reiterated facts mentioned in the application. Respondent No.2 Punjab National Bank filed Written

Arguments dated 23rd January, 2012. Respondent No.1 Corporation Bank did not appear for arguments.

7. Perused the record. It is manifest from the record that Mr. Prafulla Somraj Paradkar has purchased the suit property from M/s. Zawar Construction Combines by registered Agreement of Sale dated 8th October, 2002 and thereafter, he took loan from the erstwhile Corporation Bank, Kharadi Branch on 12th October, 2002 by mortgaging the suit property. Thereafter, on 17th October, 2002 Mr. Prafulla Somraj Paradkar cancelled the transaction of purchase of suit property but on the same date he deposited title deeds of the suit property with respondent No.1 Corporation Bank, Kharadi Branch. Mr. Gautam Nemichand Jain purchased the suit property on 17th October, 2002 after cancellation of transaction with Mr. Paradkar and took loan from Corporation Bank, Camp Branch and deposited title deeds of suit property with it on 11th February, 2003.

8. Admittedly, Mr. Gautam Nemichand Jain also took loan from Punjab National Bank in the month of February, 2003 by mortgaging the suit property.

9. From these facts and facts mentioned in the Judgment passed by this Tribunal in OA No.163/2006 the first charge on the suit property was of Corporation Bank. In fact, respondent No.2 Punjab National Bank should not have sold that suit property when it was knowing that first charge on the suit property was of Corporation Bank. In such circumstances, since the Corporation Bank has first charge over the suit property and since this Tribunal by Judgment passed in OA No.163/2006 has put charge thereon, the applicant now cannot take protection by filing this application.

10. In view of these observations, I hold that the application is liable for dismissal.

11. Hence, I pass the following order:

ORDER

(A) The application is dismissed. (B) The applicant is entitled to recover his money incurred for purchasing the suit property from respondent No.2 Punjab National Bank according to law.

Pronounced in open Court

Place : Pune Date : 29.10.2022 Sd/- (Dilip G Murumkar) Presiding Officer Debts Recovery Tribunal, Pune