ONIL SADH Vs. FEDERAL BANK LTD. AND ORS.

JUDGEMENT

(1.) By the present Writ Petition the petitioner seeks an appropriate writ declaring section 14 of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI" Act, 2002) as ultra vires and in violation of Articles 14, 21 and 300A of the Constitution of India. The petitioner also seeks a Writ of Mandamus to declare order dated 06.07.2015 passed by respondent No.4/Chief Metropolitan Magistrate (hereinafter referred to as "CMM"), Saket District Court under Section 14 SARFAESI Act as illegal and void and for directions to restrain respondent No.2/Receiver appointed from taking possession or interfering with the rights and ownership of the petitioner in property No.A-27, East of Kailash, New Delhi without due process of law. Other reliefs are also sought.

(2.) The brief facts which led to filing of the writ petition are that the petitioner claims to be the owner of the ground floor, first floor and second floor of the property A-27, East of Kailash, New Delhi by means of three different registered sale deed. It is stated that the said plot was originally allotted by DDA on lease hold basis to Shri Anand Kumar Chona vide deed dated 01.09.1972. The said Mr.Chona got the property converted from lease hold to free hold vide registered conveyance deed dated 24.09.2001. Different floors were thereafter sold to different persons by the said Shri Anand Kumar Chona. The petitioner purchased the ground floor of the property from one Shri Satinder Singh on payment of the sale consideration of Rs.1.10 crores vide registered sale deed dated 10.06.2011. The first floor was purchased from Shri Rakesh Jain after payment of a sale consideration of Rs.1 crore vide registered sale deed dated 10.06.2011. The second floor is stated to have been purchased from Shri Tirath Singh and Smt.Gulshan Kaur on payment of sale consideration of Rs.50 lacs vide registered sale deed dated 7.7.2011.

(3.) It is urged that the petitioner was enjoying peaceful possession of the property since the date of purchase till a notice under section 13(4) of the SARFAESI Act dated 19.2.2015 was affixed on the premises in question. It is averred that the petitioner was shocked to see the said notice as the petitioner had not taken any loan on the said property in question nor mortgaged the property to respondent No.1 Federal Bank Limited. It is urged that the petitioner is not an overnight inductee, inducted by the borrower to defeat the rights of respondent No.1. The petitioner aggrieved by the notice dated 19.2.2015 filed an appeal under section 17 of SARFAESI Act before the Debt Recovery Tribunal, Delhi (hereinafter referred to as "DRT"), on 23.03.2015. It was urged that all the original documents regarding the property are in possession of the petitioner and that the respondent No.1 Bank does not have any valid equitable mortgage in its favour. Interim relief was also prayed for. Some hearings took place before the DRT. Notice was also issued to respondent Federal Bank Ltd. It is further averred that on 22.7.2015 the petitioner was surprised to see a notice of the same date affixed on the property in question mentioning that receiver Shri Prashant Verma respondent No.2 appointed by the Court of Chief Metropolitan Magistrate would take possession of the property in question with police aid after 15 days of the notice i.e. on or before 6.8.2015. It is stated that it was from the said notice that the petitioner learnt that the Chief Metropolitan Magistrate had passed the order on 6.7.2015 in exercise of powers under Section 14 of SARFAESI Act. It is urged that before the Chief Metropolitan Magistrate, respondent No.1/Bank intentionally concealed that an appeal under section 17 of the SARFAESI Act filed by the petitioner is pending before the DRT and notice has already been issued on the same. It is further urged that in the affidavit filed by the concerned Chief Manager before the CMM, a false and incorrect statement was made that an equitable mortgage has been created by the borrower by deposit of the original title deed whereas the fact is that the petitioner is in possession of all the original documents of the property. Hence, the present writ petition was filed seeking the aforenoted reliefs. This court on 04.08.2015 directed the parties to maintain status quo.