PATEL PIYUSHKUMAR RANCHHODBHAI Vs. BANK OF BARODA

JUDGEMENT

(1.) The present petitions are filed by the Petitioners under Articles 14, 19, 21 and 226 of the Constitution of India as well as under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI Act") for the prayers as prayed for in detail iner alia that appropriate writ, order or direction may be issued quashing and setting aside the impugned notice dated 12.07.2014 issued by Respondent No.1 Bank of Baroda, Ashram Road Branch, Ahmedabad in exercise of power under the SARFAESI Act on the ground stated in the memo of petition.

(2.) The facts of the case briefly summarized are as follows.

(3.) The petitioners in this group of petitions are the members of the scheme constructed by the respondent Shukan Gold Corporation in the land bearing Survey No. 236, Town Planning Scheme No.33, Final Plot No. 64/B. Respondent No.2 M/s Shukan Gold Corporation, a partnership firm, executed various agreement to sale in favour of the Petitioners and other members, assigning rights over the constructed properties referred to in detail at AnnexureA and they have been allotted the units / flats. The petitioners have also taken the loan against the individual units / flats allotted to them. It is averred that the title clearance certificate has been obtained by them before getting the loan, for which, such a title clearance certificate in respect of one of the member is produced on record at AnnexureB of Special Civil Application No.11944/2014. Similarly, some of the members are also allotted by registered sale deed executed by Respondent No.2. Reference is made to one such example in respect of Flat No. E101 in favour of one Mohandasan Pannanchikal and some other named Parekh Jitendrakumar Ishwarlal in respect of Flat No. F403. It is averred that the petitioners have paid the sale consideration for purchase of the flat in the scheme constructed by Respondent No.2 on 16.08.2011. However, a mortgage deed came to be executed between Respondent No.2 and Respondent No.1 and the petitioners were not aware about any such mortgage deed. It is stated that no public notice has been issued either by Respondent No.1 or by Respondent No.2 at the time of execution of such mortgage. It is also averred that none of the members of scheme known as "Shukan Gold" were intimated regarding execution of such mortgage deed. Therefore, it is contended that Respondent No.1Bank has also not taken any care before entering into the mortgage deed dated 16.08.2011. Therefore, it is contended that it is collusive and causes prejudice to the rights of the petitioners, who are the bona fide purchasers for value. It is also averred that though the mortgage is said to have been executed on 16.08.2011, no entry has been reported or registered regarding the mortgage till the year 2014. It is averred that on the basis of the search taken from the office of SubRegistrar on 27.06.2012, no document of 16.08.2011 is shown to have been executed and a copy of the search report is produced at AnnexureF of Special Civil Application No.11944/2014. Therefore, it has been contended that on one hand, Respondent No.2 had executed agreement to sale or sale deed in favour of the petitioners after receiving the valuable consideration and a huge amount in respect of the flats constructed by Respondent No.2 and on the other hand, the flats purchased by the members of the Society are given by way of mortgage to various banks by creating charge over individual properties and, when the public notice dated 13.04.2014 was published by Respondent No.1 about creation of charge over the land in question pursuant to mortgage deed dated 16.08.2011, the petitioners came to know about the same. Therefore, the reply was given by the members of the Society i.e. Shukan Gold Housing Service Society through lawyer dated 22.04.2014 produced at AnnexureI. Thereafter, as stated in detail, a criminal complaint was also came to be filed by one of the members of the petitioners against the partners of Respondent No.2 M/s Shakun Gold Corporation. Therefore, the contentions are raised that it is the case of the petitioners that with a mala fide intention and in collusive manner, the mortgage deed is entered between the Respondent No.1 and Respondent No.2 inter se without any intimation to the members of the Cooperative Society i.e. the petitioners. It is therefore contended that such collusive act may affect the rights of the present petitioners, and the Respondent No.1 Bank has also not taken care at the time of entering into the mortgage deed with Respondent No.2 regarding actual physical verification regarding any transaction or purchase of the said properties. It is specifically contended that the Reserve Bank of India has published a Circular dated 27.08.2009 making it compulsory for the builders to publish the details of mortgage in the brochure or in the newspaper, copy of which is produced at AnnexureM of Special Civil Application No.11944/2014. Therefore, it is contended that it was the duty cast upon Respondent No.1 to direct Respondent No.2 to publish any such details in its brochure as they have failed to discharge the statutory obligation. The petitioners' right may not be prejudiced as they were not aware of execution of such mortgage deed. It is specifically stated that Respondent No.1 Bank may have given huge loan to Respondent No.2 without proper verification or carried out necessary visit, which resulted into, ultimately a criminal complaint filed by the members, but, Respondent No.1 Bank has not filed any criminal complaint against the partners of Respondent No.2 M/s Shakun Gold Corporation, which suggests the collusion. Therefore, it is contended that the impugned notice in exercise of purported powers under the SARFAESI Act may be quashed and set aside.