NARALASETTY LAKSHMI VENKATA SATYANARAYANA PRASAD vs SYNDICATE BANK on 9 January 2020

1

M.A. 72 of 2019 in SA (UN)

IN THE DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM

Present :- SHRI DUPPALA VASUDEVA RAO, PRESIDING OFFICER

Dated the 9^th day of January, 2019

M.A. No. 72 of 2019

In SA (UN)

Between :

- 1. Naralsetty Lakshmi Venkata Satyanarayana Prasad, S/o Venkateswara Rao, D.No.2-189, Mantada Village, Pamidimukkala Mandalam, Krishna District-521256.

..... Appellant /Petitioner

And

- 1. Syndicate Bank, Labbipet Branch, Vijayawada, rep by its Chief Manager, 40-6-22A, Fortune Murali Park Road, Moghalrajpuram, Vijayawada-520010.

- 2. Syndicate Bank, rep by its Authorised Officer, Regional Office, Vijayawada.

- 3. Kancharlapalli Pradha Saradhi, S/o Pitchaiah, Flat No.503, Sri Lakshmi Sai Towers, JP Nagar, LIC Colony, Vijayawada Krishna District.

- 4. Kuchibatla Sudheer Kumar, S/o K Sitaramanjaneyulu. H.No.41-17-37, Dintyalavari Street, Krishnalka, Vijayawada, Krishna District.

..... Respondent

<table border="0"> <tr> <td>Ld Counsel for Applicant/ Petitioners</td> <td>-</td> <td>Sri Ch. Venkata Rao &amp;<br/>Sri R Samuel John<br/>Dharmaraju</td> </tr> <tr> <td>Ld Counsel for Respondent Bank</td> <td>-</td> <td>Sri KS Shankar</td> </tr> </table>

2M.A. 72 of 2019 in SA (UN)ORDER

This petition is filed by the Appellant/ Petitioner to condone delay of 04 days in filing the present SA in the interest of justice.

2. According to the affidavit filed by the petitioner, petitioner submitted that the present SA was filed to set aside the all the measures taken by the respondent bank 1 &2 under SARFAESI Act, 2002 and to stay all further SARFAESI proceedings in pursuance to notice dt: 20.06.2019 and there was delay of 04 days in filing the present SA due to ill health and due to old age ailments and could not contact the Counsel and therefore could not file the present SA in time and there was delay of 04 days in filing the present SA appeal and therefore prayed to condole delay of 04 days in filing the present SA appeal.

3. Counter has been filed by the respondent bank denying the MA averments and further submitted that the averments that the applicant is in continues possession of the schedule property and that the sale deed is only a nominal sale deed are all false and further submitted that the 3^rd Respondent along with 4^th Respondent approached Respondent bank and availed a loan of Rs.12 Lakhs and executed necessary documents on 27.06.2007 and mortgaged the schedule property towards security for discharging the loan. The 3^rd Respondent committed default in payment of loan amount in spite of repeated requests and demands and as such the account was declared as NPA on 30.09.2015 and a Demand Notice was issued on 31.01.2017 calling upon the Respondents 3 & 4 to pay Rs.9,79,348-00 together with subsequent interest and costs which was duly received by the Respondents 3 & 4 and when the Respondents 3 & 4 did not give any representation nor reply, then Respondent bank issued Possession Notice on 07.03.2019 and took symbolic possession 07.03.2019 and the same was published in two local papers on 12.03.2019 as per the provisions of the Act. Thereafter, the Respondent bank issued intended Sale Notice, dated 20.06.2019 under Rule 8(5) & (6) of the Act that the schedule property will be sold in public auction and the same was received by the Respondents 3 & 4. Thereafter, Respondent bank issued a letter to the tenant of the property on 20.06.2019 by name N.Lakshmi Venkata Satyanarayana Prasad who is the present applicant herein demanding him to vacate the property and handover the same to the Respondent bank. Respondent bank thereafter approached the A handwritten signature in dark ink, appearing to be a stylized script, possibly reading "D. Venk" or similar, located at the bottom right of the page.

CMM, Vijayawada and filed Crl MP No.4453/2019 and CMM on 10.12.2019 passed orders appointing an Advocate Commissioner to take the physical possession of the property and the Advocate Commissioner is attempting to take physical possession of the secured asset. At this juncture petitioner/applicant herein without any manner of right whatsoever filed the above SA with all false averments. Respondent bank further submitted that the silence on the part of petitioner/ applicant at the time communication possession notice that the sale deed is only a nominal sale deed and he got right over the property etc., clearly establishes that the Applicant herein and the Respondent No.3 & 4 are hand-in-glove for the purpose of avoiding payment of lawful debt payable to this Respondent bank. It is submitted that the Respondents 3 & 4 did not file any separate SA challenging the SARFAESI Proceedings. The Applicant herein who is a third party and is a tenant filed the above SA with the false allegations claiming ownership over the property and not tenancy and as such the above SA is totally devoid of merits and the same is not legally maintainable. Respondent bank further submitted that bank filed OA 919/2019 for recovery of loan amount of Rs.1,19,43,510-58 against Kancharlapalli

Pardhasarathi and 3 others as the Respondents 3 & 4 availed various loans both from Respondent bank and Siddardhanagar Branch under four accounts by extending the mortgage over the schedule property for other loans also under Account Nos.33437200001183, 33651010001043, 33657910000184, 33657620003256 and 3365125000740. Keeping in view of the above respondent bank prayed to dismiss the present MA petition.

4. The point for consideration is whether the petitioner is entitled for condonation of delay of 04 days in filing the present SA in the interest of justice as prayed for or not.

5. Heard both sides. Ld Counsel for petitioner/ applicant argued that there was delay of only 04 days in filing the SA appeal and delay was due to ill health and old age ailments and therefore prayed to allow the present MA petition for challenging SARFAESI proceedings in the SA appeal. On the other hand, Ld Counsel for respondent bank argued that petitioner/ applicant herein has no locus-standi to file the present MA petition because the petitioner/applicant already executed documents in favour of A handwritten signature in dark ink, appearing to read "D. Lee" or similar, with a long horizontal stroke extending to the right.

respondents 3 and therefore petitioner herein has not right over the schedule property and therefore cannot contest the SARFAESI proceedings initiated against the schedule property. Ld Counsel for respondent bank further submitted that respondents 3 & 4 availed several loan facilities from the respondent bank and mortgaged the schedule mentioned property. Therefore, Ld Counsel for respondent bank submitted that petitioner herein has no locus-standi to file the present petition and therefore prayed to dismiss the present MA petition. The Counsel for Petitioner replied to the arguments advanced by the respondent bank and petitioner contended that petitioner is in possession of the schedule property and therefore petitioner has got right to challenge the SARFAESI proceedings and therefore prayed to condone delay of 04 days in filing the present SA appeal. But, delay of 04 days in filing the SA appeal is not only criteria in this MA petition. Further, petitioner has to establish that petitioner has got interest over the schedule property involved in the the SARFAESI proceedings for which the petitioner is challenging. Petitioner herein has executed sale deed in favour of 3^rd respondent and respondents 3 & 4 approached respondent bank for grant of various loans. But, the contention of the petitioner is that A handwritten signature in black ink, consisting of a stylized 'L' or 'Q' followed by a series of loops and a long horizontal stroke extending to the right.

the sale deed executed by petitioner in favour of 3^rd respondent is a nominal sale deed. Petitioner filed copy of the said sale deed. But, until and unless petitioner establishes that the sale deed executed in favour of 3^rd respondent by the petitioner is nominal and sham document and the petitioner has got right over the the schedule property, the petitioner cannot challenge the SARFAESI proceedings initiated by the respondent bank against the schedule property. By execution of sale deed dt: 27.06.2017 by the petitioner in favour of 3^rd respondent, petitioner has transferred the title over the petition schedule property in favour of 3^rd respondent. Therefore, now the petitioner has no locus-standi to file the present petition and further the petitioner has no right over the schedule property and therefore cannot challenge the SARFAESI proceedings initiated by the respondent bank against the schedule property. Therefore, the prayer of the petitioner to condone delay of 04 days in filing the present SA appeal cannot be taken into consideration. First of all, the petitioner has to establish that petitioner has got right over the schedule property. Further, petitioner herein has executed sale deed dt: 27.06.2017 in favour of 3^rd respondent. Therefore, tax receipts A handwritten signature in black ink, appearing to be a stylized script, possibly starting with a capital letter 'A' or 'W', followed by several other characters and a long horizontal stroke extending to the right.

and letter from panchayat cannot be taken into consideration as proof of title at all.

Therefore, considering the facts and circumstances of the case, I feel that this MA petition is devoid of merits and deserves to be dismissed.

In the result MA 72/2019 is dismissed however without costs.

Let the copy of the order be made available to the parties as per rules.

[Dictated to PS, transcribed by him and corrected and pronounced by me in the open court on this 9^th day of January, 2020]

9/1/2020 PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM