THIS SA 133 OF 2013 4.11.2013 is against ICICI Bank for taking a symbolic paper possession on 10.10.2013 though they were in physical possession from 18.12.2010 after instructing the builder not to hand over the possession on 2.11.2007 for the purchase cum construction loan obtained from the bank on 25.7.2006 for want of a sale deed which was submitted to the bank on 6.7.2006 and the bank had issued a reply to our letter that the bank does not give any acknowledgement but for the best known reason to the official of the bank they are denying the submission.
The present application is filed challenging the Possession Notice dated 10.10.2013 claiming that symbolic possession has been taken by the Respondent Bank. Counsel for the Applicant submitted that vide letter dated 15.02.2006, the Respondent Bank addressed a letter to the Applicant confirming that the technical and legal details of the project Marine Bay has been cleared by the Respondent Bank based on which a loan has been arranged in favour of the applicant. Thereafter, after completion of project it appears that certain directions were given by the Respondent Bank to the builder of the Project not to hand over the possession of the flat and also the title deeds to the Applicant. The counsel for the applicant also submitted that applicant is legally paying the Equated Monthly Installments and there was no default committed, but however when approached the builder for taking possession of the property, he was informed by the builder that the Respondent Bank has instructed not to give possession of the property to the applicant. Further, it is submitted that the Respondent Bank has asked the applicant not to seek possession of the property and give up the property so that they will close the loan account since the cost of the value of the property has gone up compared to the date when it was booked by the Applicant. An OA was filed by the Respondent Bank before DRT-III as OA No.29 of 2012, in the meantime Section 13(2) notice was also issued by the Respondent Bank on 02.07.2010, wherein it was informed that applicants have deposited the title deeds with the Bank. When certain objections were raised by the applicant on a further letter dated 21.07.2010, a corrigendum issued indicating that they are in possession of the certified true copies of the registered sale deeds, but never disclosed about the original documents. During the Cross-examination conducted by the Applicant counsel in the OA there is an admission by the Bank witness that there was no mortgage in their favour and when the applicant is legally paying the installments, in spite of that without giving possession of the flat to the applicant, the Respondent Bank has initiated SARFAESI measures without having any security interest in their favour. It is further apprehended that the Respondent Bank having taken symbolic possession of the property with further proceedings to sell the property. Further, it is submitted that in the OA filed by the Respondent Bank before DRT-III at Paragraph – 32 of the Proof Affidavit it is admitted by the Respondent Bank that they are in physical possession of the property as on 18.12.2010 and also during the cross-examination admitted that there was no security interest created in their favour and in such an event the possession notice issued on 10.10.2013 claiming symbolic possession and are issued with malafide intention by the Authorised Officer and as such the actions of the Authorised Officer is contrary to the provisions of the SARFAESI Act and there is no provision for the Authorised Officer to get immunity for such malafide actions. Having gone through the papers and submissions made by the Applicant, this Tribunal is convinced that the actions initiated under impugned notice is contrary to the provisions of the SARFAESI Act, since the Respondent Bank is already in possession as per their Proof Affidavit as on 18.12.2010 and it is also further admitted by the Respondent Bank’s witness during the course of cross-examination with the applicant is legally paying the installments due, and however he was not given possession of the property, and admitted that he has not deposited any title deeds with the Respondent Bank, to claim mortgage in their favour. Accordingly, the Respondents are directed not to proceed further under the impugned notice dated 10.10.2013 without obtaining a direction from this Tribunal. Registry is directed to send a copy of this order to the Respondent Bank immediately. Private Notice is permitted. Respondent to file their counter and typed set of papers by 23.01.2014. Call on 23.01.2014.
Dear Friends
This is an example of how a prudent bank is having nexus with the corporate to cheat the borrower by using the provision of the dragon law and still i am struggling to get the justice. Unless until we all join together this menace can not be stopped since more MNC dacoits are entering the banking sector to cheat the illiterate and the poor Indians. Though the SARFAESI act is one sided and fully supportive to the bank, still this MNC takes shelter under that provision and the delay system to harass us.
