KUNDANBEN JAYANTILAL SANGHVI Vs. STATE BANK OF SAURASHTRA

JUDGEMENT

(1.) Rule. Mr.A.S.Vakil, learned Counsel for the respondent Bank waives service of notice of rule. With the consent of the parties the matter is taken up for final hearing today.

(2.) The short facts of the case are that the petitioners are claiming the right as purchaser of the property under Section 53A of the Transfer of Property Act under the agreement to sell with part performance and the said property appears to have been mortgaged with the respondent Bank. It is the case of the petitioners that when the petitioners purchased the property, it was not disclosed to them that the property is mortgaged with the Bank. It also appears that as per the petitioners the property was mortgaged in the year 1988 and the agreement to sell upon which the reliance is placed by the petitioners has entered into in the year 1990. Even if the original documents, copy whereof is produced on page 20 is considered, the stamp paper is purchased on 29-1-1986, whereas it is used for entering into transaction on 11-10-1990 i.e. after a period of expiry of six months. The respondent Bank issued notice dated 3-11-2003 under "Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002" (hereinafter referred to as "the Ordinance") under Section 13(2) for recovering of the amount outstanding from the borrower as well as the guarantor. As per the Bank, Rambhai Kavalbhai Patel was the original owner of the property in question stood as the guarantor and the said property was mortgaged with the Bank. It is the said notice of the Bank which is under challenge in this petition by the petitioners. The petitioners have also prayed for challenging the communication dated 15-12-2003, whereby the bank addressed a correspondence giving copy of the notice dated 3-11-2003 issued to Rambhai K. Patel and intimated to the petitioners that upon the expiry of the period of 60 days, the Bank will proceed for public auction of the said property and the petitioners are intimated to surrender the vacant possession of the land of property. The petitioners have also prayed to restrain the respondent Bank from recovering the forcible possession of the flat No.5 in question and the petitioners have also prayed for giving directions to respondent Bank to supply to the petitioners necessary documents and details which may be as per the notice dated 20-11-2003 and the second notice dated 19-12-2003.

(3.) I have heard Mr.Kapadia, learned Counsel for the petitioners and Mr.A.S.Vakil, learned Counsel for the respondent Bank.