Satishkukmar Surendra Shetty vs The District Collector And Ors
2022 Latest Caselaw 9647 Bom

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            Digitally

                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            signed by
            MULEY
MULEY       SHUBHAM
SHUBHAM     PRAVINRAO
PRAVINRAO
                                        CIVIL APPELLATE JURISDICTION
            Date:
            2022.09.22
            17:45:41
            +0530


                                       WRIT PETITION NO. 7657 OF 2022


                Satishkumar Surendra Shetty,
                Age- 42 years, Occu. Business,
                R/o Flat No.201, Harbans Apartment,
                Plot No.211, Shirvane village, Nerul,
                Navi Mumbai, Tal. & Dist. Thane.                        .....Petitioner

                           Vs.

                1. The District Collector,
                   Thane, District Thane.

                2. The Sub-Divisional Officer,
                   Thane, District Thane.

                3. The Circle Officer,
                   Belapur, District Thane.

                4. Tahsildar/Executive Magistrate,
                   Thane, District Thane.

                5. Kotak Mahindra Bank Ltd.,
                   Registered office at 27, Bandra-Kurla
                   Complex,E-27, G-Block,
                   Bandra Kurla Complex,
                   Bandra (East), Mumbai
                   Through its Manager.                                 .....Respondents



                Mr. Dr. Abhinav Chandrachud a/w Mr. Vinod Sangvikar, Mr. Yogesh Morbale
                for Petitioner.
                Mr. Rishabh Shah a/w Mr. Sanjay Anabhawane, Ms. Dimple Tejani i/by
                Sanjay Anabhawane for Respondent No.5.
                Smt. S. D. Vyas, "B" Panel counsel for State.




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                                 CORAM                :   K. R. SHRIRAM &
                                                          A. S. DOCTOR, JJ.

                                 RESERVED ON   :          8th SEPTEMBER, 2022.
                                 PRONOUNCED ON :          22nd SEPTEMBER, 2022.


JUDGMENT:- (PER A. S. DOCTOR, J.)

1.         The present Writ Petition, impugns, viz.

      i.      an order dated 9th February, 2017, ("the Impugned Order") passed

              by Respondent No.2 (the District Magistrate, Thane)             under

Section 14 of the Securitisation and Reconstruction of Financial

Assets and Enforcement of Security Interest Act, 2002 (SARFAESI

Act), and

ii. two notices dated 27th March, 2017 ("the first impugned notice")

and 9th February, 2021 ("the second impugned notice") both

issued by Respondent No. 4 (Tahsildar/Executive Magistrate,

Thane District).

By the impugned order, Respondent No. 2 has directed Respondent

No. 4 to take possession inter alia of flat numbers 201 and 301 in

the Harbansh Apartment Building, situated, at Shirvane Village,

Nerul, Navi Mumbai, Taluka & Dist. Thane ("the said flats"). By the

impugned notices Respondent No. 4 has called upon Petitioner to

hand over possession of the said flats failing which Respondent No. 4

would take forcible possession of the same.

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           A Brief Overview

2. The facts of the present case lie within a very narrow compass.

Petitioner claims ownership and possession of the said flats.

Conversely Respondent No. 5 claims that the said flats were

mortgaged by one Yogesh Prabhakar Ahire and Prabhakar Namdeo

Ahire ("Borrowers") as security for a loan granted by ICICI Bank

("ICICI") to the Borrowers. The said flats were thus secured assets as

more particularly defined under the provisions of the SARFAESI Act.

Respondent No. 5 is the assignee of the said loan and is thus a

secured creditor as defined under the SARFAESI Act. Since the

Borrowers defaulted making due repayment of the said loan,

Respondent No. 5 in its capacity as secured creditor adopted steps for

enforcement of its security interest under Chapter III of the

SARFAESI Act. A notice under Section 13 (2) of the SARFAESI Act

came to be issued by Respondent No. 5 to the Borrowers despite

which Borrowers did not discharge in full their liability under the

said loan agreement. It was thus that Respondent No. 5 filed an

Application under Section 14 of the SARFAESI Act ("the said

Application") before Respondent No. 2 seeking the assistance of

Respondent No. 2 in recovering possession of its secured assets.

3. The genesis of "the dispute" (i.e., basis of the present Writ Petition) is

the stand taken by Respondent No. 5 in the Affidavit filed by

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Respondent No. 5 ("the said Affidavit") in support of the said

Application. Paragraph 5 of the said Affidavit is for ease of reference

reproduced below, viz.

"5. I say and submit that, in consideration to the said credit/home loan facilities granted to the Respondents by the Assignor of the Applicants, the Respondents have created security interest over the said Secured Asset by way of mortgage by deposit of the title Deeds and also deposited original title deeds of the Secured Asset with the Assignor of the Applicant with an intention to secure due repayment of the credit facilities granted to the Respondents. The Applicants further state and submit that, the Respondents have acknowledged the creation of security interest by a valid mortgage over the said Secured Asset by way of executing Declaration/s and that the Applicants is holding a valid and subsisting security interest over said Secured Asset and the claim of the Applicant is within the limitation period."

It is Petitioners case that Respondent No. 5 has made false statements

on oath in the aforesaid paragraph and "has obtained" the impugned

order on the basis of these false statements. It is Petitioners case that

these false statements amount to fraud and misrepresentation and it

is thus that Petitioner has approached this Hon'ble Court invoking its

inherent and extraordinary jurisdiction under Article 226 of the

Constitution of India despite the availability of an alternate remedy.

Relevant Facts

4. Petitioner has annexed and relied upon copies of several agreements

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for sale in support of its contention that Petitioner is the owner of

the said flats. Petitioner also claims to be in possession of the said

flats. In the year 2017 Petitioner received a copy of the impugned

order as also the first impugned notice. Petitioner on receipt of the

impugned notice, by its Advocates letter dated 2 nd June, 2017, inter

alia, informed Respondent No. 5 that the said flats belonged to them.

It is Petitioner's case that thereafter since no action was taken by

either Respondent No. 4 or Respondent No. 5, Petitioner assumed

that Respondent No. 5 had accepted Petitioner's contention that it

had acted on an erroneous basis.

5. Thereafter there was complete silence on the part of Respondents till

such time that Petitioner received ("the second impugned notice") by

which Petitioner was once again called upon to hand over

possession of the said flats failing which forcible possession of the

same would be taken by Respondent No. 4. Petitioner on receipt of

the second impugned notice, through its advocates, addressed a

letter dated 2nd March, 2021 to Respondent No. 5 and separate

letters, all dated 18th March, 2022, to Respondent No. 4, to

Respondent No. 3, to the Senior Inspector Nerul and to the Police

Commissioner, Navi Mumbai once again pointing out that the said

flats belonged to Petitioner. It was thus, in these circumstances, that

Petitioner has approached this Hon'ble Court by filing the present

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Writ Petition inter alia contending that the officials of Respondent

No. 5 had acted in connivance with the Borrowers in disbursing a

loan on property owned by Petitioner and thus the entire action of

Respondent No. 5 was vitiated by fraud on the part of Respondent

No. 5.

6. Respondent No. 5, in its Reply, apart from challenging the

maintainability of the Writ Petition inter alia on the ground of

availability of alternate remedy annexed copies of documents to

evidence (a) the loan granted by ICICI to the Borrowers; (b) the

assignment of the said loan in its favour; and (c) the steps taken by

Respondent No. 5 under the provisions of the SARFARESI Act to

recover possession of its secured assets (i.e., the said flats). The

documents are:-

i Deed of assignment dated 31st December, 2007 executed by

and between ICICI and Respondent No. 5;

ii. The loan agreement dated 31st December, 2004 entered

into between ICICI and Borrowers;

iii. Copies of title deeds of the said flats as deposited by

Borrowers with IHFC (constituted attorneys of ICICI).

iv. The demand notice dated 14th October, 2015 issued by

Respondent No.5 under Section 13(2) of the SARFAESI Act.

       v.           Copy of the Application filed by Respondent No. 5 under


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                    Section 14 of the SARFAESI Act.

It was basis of the above that Respondent No.5 has shown that the

claim of Petitioner is untenable and that there was no infirmity in the

stand taken by Respondent No. 5 in the said Affidavit or in the

impugned order.

7. After Respondent No. 5 filed its Affidavit-in-Reply, Petitioner

amended the Writ Petition by adding grounds essentially to contend

that (a) there was no material to establish that a valid mortgage had

been created over the said flats, (b) that Respondent No. 5 had made

false statements on oath to the effect that Borrower had executed a

declaration that there was a valid and subsisting mortgage and (c)

that the officers of Respondent No. 5 had no personal knowledge of

the Borrower's intention to create a mortgage (d) there was not a

single piece of documentary evidence to support the creation of an

equitable mortgage.

Submissions

8. Dr. Chandrachud on behalf of Petitioner, submitted as follows:-

i. That a plain reading of the Declaration dated 31 st December, 2004

produced and relied upon by Respondent No. 5 made evident that no

equitable mortgage of the said flats had infact ever been created by

Borrowers in favour of ICICI. In support of his contention he invited

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our attention to clause 11 of the said Declaration which reads as

follows, viz.

"11. I/We say that as on date I/we have in my/our possession, power and control only those documents, evidences and writings relating to the said property all of which are more particularly described in the Second Schedule hereunder written/hereto attached being the title deeds in respect of the said property."

He pointed out that a plain reading of clause 11 made it evident that

the original documents in respect of the said flats were in the

possession of the Borrowers and had only been made available to

ICICI presumably for due diligence purposes. He submitted that this

was completely contrary to and destructive of the case of

Respondent No. 5 that the Borrowers had created security interest

over the said flats by way of a mortgage by deposit of the title deeds.

ii. That the Declaration was a document which was non est and of no

legal force and effect since the same was unregistered. He submitted

that the said Declaration would require mandatory registration under

Section 17 of the Indian Registration Act, 1908 since by virtue of

clause 13 thereof, Borrowers had purported to create a charge over

the said flats. In support of his contention, he placed reliance upon a

judgment of Hon'ble Supreme Court of India in the case of State of

Haryana Vs. Narvir Singh1.

1 (2014) 1 SCC 105


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Thus (a) by relying upon an unregistered declaration which

purported to create a charge over the said flats; (b) by failing to

point out to Respondent No. 2 that the said Declaration was

unregistered and therefore unenforceable; and (c) by stating on oath

that the Declaration acknowledged that there was a valid mortgage,

Respondent No. 5 had obtained the impugned order by making false

statements on oath which amounted to fraud and misrepresentation.

Respondent No.5 therefore had approached the District Magistrate

with an application under Section 14 of SARFAESI Act with a case

based on falsehood and therefore should have been summarily

thrown out. In support of his contention reliance was placed upon

the judgment of the Hon'ble Supreme Court of India in the case of S.

P. Chengalvaraya Naidu Vs. Jagannath (Dead) by Lrs and Others 2

which is the locus classicus on the issue in which the Hon'ble

Supreme Court has held as follows:-

"Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

5. The High Court, in our view, fell into patent error.

2 (1994) 1 SCC 1

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The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B- 1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the

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High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B- 15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party."

iii. Additionally, and without prejudice to the above, that the present

case was governed by Article 62 of the Limitation Act which provides

that in a suit to enforce payment of money secured by a mortgage,

the period of limitation is 12 years from the date on which the money

sued for becomes due. In a mortgage by deposit of title deeds, the

cause of action arises on the date on which the mortgage is made. In

support reliance was placed upon the following judgments namely;

Manoj Kumar Saha Vs. Nabadwip Chandra Poddar 3 and Rosy George

Vs. State Bank of India4. That in the instant case the deposit of title

deeds was made on 31st December, 2004 and the said Application

was filed before Respondent No. 2 on 6 th January, 2007. That the

Application having been filed beyond a period of 12 years the date on

which the cause of action arose was ex facie barred by limitation. By

stating that the claim of Respondent No.5 was not barred by

limitation, Respondent No.5 has made a false statement. This is one

3 AIR 1978 Cal 111 4 AIR 1993 Ker 184

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more instance of Respondent No.5's application under Section 14 of

SARFAESI Act being based on falsehood.

iv. That there was absolutely no material to establish that a valid

mortgage by deposit of title deeds had been created over the said

flats. That while the said loan Agreement was executed between

ICICI and the Borrowers none of the officers of Respondent No. 5

who had affirmed Affidavits before Respondent No. 2 had or could

have had personal knowledge about the creation of such purported

mortgage.

v. That there was not a single piece of documentary evidence which

established that any mortgage by deposit of title deeds had been

created in favour of ICICI by the Borrowers. The Loan Agreement

which was itself unregistered merely described the said flats and that

the Declaration infact recorded that the title documents in respect of

the said flats were in the possession of the Borrowers. That Section

58 (f) of the Transfer of Property Act, 1882 provides that a mortgage

by deposit of title deeds can only be created when the borrower

delivers the title documents "with intent to create a security

thereon". In the facts of the present case, there was nothing to show

that the title documents had been deposited by Borrowers with the

intention of creating an equitable mortgage. Infact from a plain

reading of clause 11 of the said declaration it appeared that the

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original documents were retained in the possession of the Borrowers.

A Division Bench of this Hon'ble Court in the case of Behram Rashid

Irani Vs. Sorabji Rustomji Elavia5 was pleased to hold that there was

"no evidence whatever of intention to connect the deposit of title

deeds with a loan borrowed by the defendant from the plaintiff " and

the "mere fact that there was a subsequent or contemporaneous

loan" was insufficient to show any intent to create a mortgage by

deposit of title deeds. In the case of Behram Rashid Irani (supra) the

Borrower (in that case) had deposited the title deeds with the

Plaintiff (in that case) pursuant to which a loan had been issued by

the Plaintiff to the Borrower. In the present case, the mere factum of

deposit of title deeds by the Borrower and disbursement of the loan

by ICICI to Borrower was insufficient to conclude that there was a

mortgage by deposit of title deeds made by Borrower in favour of

ICICI. To establish that a valid mortgage had been created by the

Borrower in favour of ICICI, it was incumbent upon Respondent No.5

to have produced some cogent evidence to demonstrate that the title

deeds of the said flats had been deposited by the Borrower with the

intention of creating a mortgage of the said flats. Additionally, that it

was incumbent upon Respondent No. 5 to have established

conclusively that (a) there was a valid and subsisting mortgage by

5 (1913) 38 ILR Bom 372

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deposit of title deeds, and (b) that Borrowers had title to the said

flats. Such an enquiry was beyond the scope of the jurisdiction of

Respondent No. 2 under Section 14 of the SARFAESI Act since the

jurisdiction of Respondent No. 2 under Section 14 was purely

ministerial in nature. In this fact scenario, Respondent No.5 ought to

have first established title and the creation of a valid mortgage by

approaching the Debt Recovery Tribunal and only after having done

so, adopted steps for recovery and/or realization of its secured assets.

vi. That the present Writ Petition was not vitiated by delay and/laches

since Respondents had not taken any action pursuant to Petitioners

Advocates notice dated 2nd June 2017. Petitioner was under the bona

fide belief that the issue had thus been resolved and that

Respondents had acted based upon some misunderstanding. It was

only when Respondent No. 4 issued the second impugned that

Petitioner filed the present Writ Petition after addressing various

letters through their advocates inter alia to Respondent No.5 and

Respondent No.4. Thus, it cannot be said, in the facts of the present

case that Petitioner is guilty of delay and laches.

vii. That in the context of the aforesaid facts, this Hon'ble Court would

have the requisite jurisdiction to interfere and exercise its

extraordinary jurisdiction under article 226 of the Constitution of

India despite the availability of an alternate remedy. In support of his

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contention that there is no absolute bar in law from a Court

exercising its jurisdiction under Article 226 of the Constitution of

India in an appropriate case even when there exists an alternate

remedy, viz.

1) Masscorp Ltd. Vs. Cosmos Coop Bank Ltd.6.

2) Standard Chartered Bank Vs. V. Noble Kumar7.

3) Authorized Officer, Indian Bank Vs. D. Visalakshi8

4) Commissioner of Income Tax Vs. Chhabil Dass Agarwal9.

9. Mr. Shah on behalf of Respondent No. 5 submitted as follows, viz.

i. That the present Petition was not maintainable as Petitioner had an

alternate and equally efficacious remedy by way of filing an

Application under Section 17 of the SARFAESI Act. Petitioner has

admitted receipt of the impugned order as also the first impugned

notice in the year 2017 itself but chose not to take steps to

impugn/challenge the same. That the trend of judicial decision was

against permitting Borrowers /Third Parties from filing Writ Petitions

under Article 226 of the Constitution of India when an alternate

remedy under Section 17 of the SARFAESI Act had expressly been

provided for. The Hon'ble Supreme Court of India in the case of

6 (2018) SCC Online Bom 2579 7 (2013) 9 SCC 620 8 (2019) 20 SCC 47 9 (2014) 1 SCC 603

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Kotak Mahindra Bank Limited Vs. Dilip Bhosale 10 was pleased to hold

as follows:-

"Before parting with the Order, we would like to observe that, this Court is consistent of the view and can be noticed from the judgment in United Bank of India Versus Satyawati Tandor & Ors (2010 (8) SCC 110) that when a remedy under the statute is available and in the instant case which indeed was availed by the Respondent/Borrower, filing of a writ petition under Article 226 of the Constitution is to be discouraged by the High Court"

In addition to the said judgment reliance was also placed upon the

following judgments viz.,

1) Authorised officer, State Bank of Travancore & Anr. Versus

Mathew K. C.11

2) Union Bank of India Versus Satyawati Tandon & Ors.12

3) Kanaiyalal Sachdev Versus State of Maharashtra & Ors.13

4) Union Bank of India Versus Panchanana Subudhi & Ors.14

5) Commissioner of Income Tax Versus Chabil Dass Agarwal &

Ors.15.

ii. In the alternative and without prejudice, Petitioner's contentions that

Respondent No. 5 had obtained the impugned order by making false

statements on oath before Respondent No. 2 was entirely misplaced

and devoid of any merit. The Loan Agreement and Declaration were 10 Special Leave to Appeal No.13241 of 2019 11 2018 (3) SCC 85 12 2010 (8) SCC 110 13 2011 (2) SCC 782 14 2010 (15) SCC 552 15 2014 (1) SCC 603

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to be read and construed conjointly and not in the disjointed and

selective manner which Petitioner has done. That a proper reading of

the Loan Agreement and Declaration made it clear and beyond the

pale of doubt that the said flats were mortgaged as security by

Borrowers for the repayment of the loan granted by ICICI to the

Borrowers as could be seen from the following clauses and "Schedule

1" of the of the Loan Agreement, viz.,

"1.7 "PROPERTY" means the residential immovable property, described in the application or any time subsequently, the acquisition/construction of which is financed partly by ICICI Bank and includes:

a) in the case of a flat, the entire built-up area (and any additions thereto), the proportionate share in the common areas of the building in which such flat is/will be situated and the proportionate undivided share in the land on which the said building is situated or is being/will be built OR

b) in the case of an individual house, the house and entire plot of land on which the house is situated or on which the house will be built."

"3. SECURITY AND CONDITIONS PRECEDENT TO DISBURSEMENT OF THE LOAN

Security -

The BORROWER shall create security and/or guarantee/s as may be considered appropriate by ICICI Bank in favour of the security trustee nominated by ICICI Bank in such manner and form as ICICI Bank may in its sole discretion require as a security for

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payment of all the dues of the Borrower under this Agreement or otherwise in relation to the LOAN including principal amounts, interest, EMI, additional interest, costs, serving charges, and all other amounts due. The security may be in such manner and form as ICICI Bank may require. The security trustee shall hold the security for the benefit of ICICI Bank or its assigns."s

"SCHEDULE 1" of the said loan agreement provides " description of

the PROPERTY" and specifically mentioned the said flats.

iii. The clauses in the Declaration filed by the Borrowers also indicate

the said flats were mortgaged viz.,

"1. I/We say that I/We am/are absolutely seised and possessed of or otherwise well and entitled to the immovable property being the property more particularly described in the First Schedule hereunder written/hereto attached (hereinafter referred to as the "said property").

2. I/We have disclosed all facts relating to the said Property to the authorised representatives of IHFC as duly constituted attorneys for and on behalf of ICICI Bank Limited and made available to them all documents of title and other deeds and writings in my/our possession and power. I/We confirm the accuracy of all information given by me/us in this regard and also confirm that all prior or subsequent information furnished by me/us in this behalf is true, complete and accurate in every way.

11. I/We say that as on date I/we have in my/our possession, power and control only those documents, evidences and writings relating to the said property all of which are more particularly described in the Second Schedule hereunder written/hereto attached

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being the title deeds in respect of the said property. "

That clause 11 which was relied upon by Dr. Chandrachud to contend

that the Borrowers retained possession of the title documents had to

be read in conjunction with clause 2 and the Schedule of the

Declaration and not independently. That clause 2 of the Declaration

specifically recorded that the title documents had been made

available to the duly constituted attorneys of ICICI, (namely IHFC)

and the Schedule to the said Declaration specifically recorded both

the "Description of the Property" and "Details of the title deeds".

That therefore on a cogent and conjoint reading of the Loan

Agreement and the Declaration, it was beyond the pale of doubt that

a valid mortgage by deposit of title deed had been created by

Borrowers in respect of the said flats. He submitted that Respondent

No.5 was in possession of the original title deeds and course of the

hearing inspection of the same had also been given to Petitioner.

iv. In so far as Petitioner's contention that Respondent No.5 had made a

false statement qua limitation the same was devoid of any merit and

entirely untenable. The Borrowers account was classified as a Non

Performing Asset (NPA) on 1 st March, 2007 as per the relevant

guidelines of the Reserve Bank of India. The demand notice was

issued by Respondent No. 5 on 14 th October, 2015 under Section 13

(2) of the SARFAESI Act and despite due receipt thereof, the

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Borrowers had not discharged in full their liability under the said

Loan Agreement. It was thus that Respondent No.5 adopted

proceedings under Chapter III of the SARAFESI Act for recovery of its

secured assets (i.e., the said flats). He invited our attention to the

definition of "default" as defined in Section 2(j) of the SARFAESI Act

and pointed out that on account of the non-payment of dues by

Borrowers, the account of the Borrowers was declared NPA on 1 st

March, 2007. Therefore the Borrowers right to enforce the mortgage

(security interest) arose only on and from that date. The demand

notice dated 14th October, 2015 issued by Respondent No.5 was

therefore within the period of 12 years mentioned in Article 62 of the

Schedule to the Limitation Act.

10. Section 96 of the Transfer of Property Act provides as follows:-

"96. Mortgage by deposit of title deeds - The provisions hereinbefore contained which apply to simple mortgage shall, so far as may be, apply to mortgage by deposit of title deeds"

Thus all the provisions which applied to a simple mortgage were

applicable to an equitable mortgage and therefore, the period of

limitation would be twelve years from the date when the money

becomes due.

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11. Therefore in the facts of the present case the question of the said

Application being barred by limitation did not arise at all. That

Petitioners contention that limitation in the case of an equitable

mortgage was twelve years from date of deposit of title deeds was

ex-facie wrong and contrary to the provisions of Article 62 of

Limitation Act read with Section 96 of Transfer of Property Act.

Conclusion and Reasons

12. After having heard learned counsel, perusing the documents

produced and considering the case law relied upon by both sides we

find that the Petitioner has failed to make out a case which warrants

any interference by this Hon'ble Court, in its extraordinary

jurisdiction under Article 226 of the Constitution of India for the

following reasons, viz.

A. The entire fulcrum of Petitioners challenge is that Respondent No. 5

has obtained the Impugned Order by making false statements on

oath in paragraph 5 of the said Affidavit in support of the application

which amounts fraud and misrepresentation. The allegations of

fraud and misrepresentation are indeed very grave and serious in

nature. These allegations should not be made in a casual or flippant

manner. It is well settled that any person who has approached any

Court, Judicial Authority and/or Tribunal on the basis of any fraud,

willful misrepresentation and/or deliberate suppression of facts must

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be shown the door. However, there must be compelling material and

evidence to support the allegations of fraud and misrepresentation.

Pleadings of fraud cannot be based merely on suspicion and

conjecture. It is therefore necessary to consider whether in the facts

of the present case, Respondent No. 5 has made any false statements

on oath or has made any misrepresentation in paragraph 5 of the

said Affidavit based on which the Impugned Order has been passed.

Respondent No. 5 has in paragraph 5 of the said Affidavit has

essentially stated viz.

i. That the Borrowers have created security interest over the said

Secured Asset (i.e., the said flats) by way of mortgage by

deposit of Title Deeds;

ii. That the Borrowers have deposited original title deed of the

Secured Asset (i.e., the said flats) with the Assignor (ICICI)

with intention to secure due repayment of the credit facilities

granted to Borrowers;

iii. That the Borrowers have acknowledged the creation of security

interest by valid mortgage over the said Secured Asset (i.e., the

said flats) by way of executing Declaration/s;

iv. That the Respondent No. 5 is holding a valid and subsisting

security interest over the said Secured Asset (i.e., the said flats).

v. The claim of the Applicant is within the period of limitation.

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We find that Respondent No. 5 has on the basis of the loan

agreement, declaration and the original title documents taken steps

in its capacity as a Secured Creditor under the SARAFESI Act. It is

the understanding of Respondent No.5 that the documents it had

created security interest of the said flats by way of deposit of title

deeds. That cannot be the reason to say Respondent No. 5 has made

any false statements on oath in paragraph 5 of the said Affidavit. It is

not as though Respondent No. 5 had filed the said Application

without there being any loan agreement or without having possession

of the original title deeds of the said flats or there being no

assignment of the said loan in favour of Respondent No. 5. Had such

a fact scenario been established, Petitioner would be justified in

alleging fraud and/or misrepresentation. However we find that in the

present case no such fact scenario has emerged. What therefore

really emerges from the facts of Petitioners' case is that Petitioner is

essentially claiming title to the said flats. Whether the documents

relied upon by Respondent No.5 establishes security interest by way

of mortgage by deposit of title deeds or Borrowers deposited the title

deeds of the said flats with ICICI with intention to secure due

payment or to create a valid mortgage etc. is not something which

can be decided and/or examined by this Hon'ble Court in its

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jurisdiction under Article 226 of the Constitution of India or for that

matter by Respondent No.2 exercising jurisdiction under Section 14

of the SARFAESI Act. This being so, it was incumbent upon Petitioner

to have availed of the appropriate remedy to either establish its title

and/or challenge the impugned order or both. This cannot be done

by this Court in its extraordinary jurisdiction under Article 226 of the

Constitution of India.

B. Additionally, even both the other contentions raised by

Petitioners (a) that the title documents in respect of the said flats

were retained with the Borrowers and (b) that there was nothing to

demonstrate that Borrowers had deposited the title documents " with

intent to create a security thereon " are also beyond the scope of the

jurisdiction of Respondent No.2 under Section 14 of the SARAFESI

Act. It is well settled that the jurisdiction of Respondent No. 4 when

considering an Application under Section 14 of the SARAFESI Act is

purely ministerial in nature and Respondent No.2 does not have the

jurisdiction "to decide" any issues or for that matter even hear a

Borrower and/or Third Party. The scope of the jurisdiction under

Section 14 of the SARFAESI Act as has been reiterated by this Hon'ble

Court in the case of Phoenix ARC Private Limited vs The State of

Maharashtra & Ors16. Petitioner has accepted this position in the

16 2022 SCC OnLine Bom 1710

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Petition as also in the course of arguments advanced. Proceedings

under Section 14 of the SARFAESI Act being ex-parte in nature would

necessarily put a higher onus on the Applicant to ensure strict

compliance with both content (i.e., truth thereof) and form of the

said application and procedure contemplated under Section 14 of the

SARFAESI Act. If there is even the slightest hint of an applicant being

untruthful in either the content or form prescribed under Section 14

of the SARFAESI Act, the same would render the Application

susceptible to challenge by way of Writ Petition. In any event, in the

present case we find it most curious that the Petitioner having on the

one hand questioned the very creation of a valid mortgage has on the

other hand failed and neglected to join as Respondents the Parties

between whom the mortgage was created, namely the Borrowers and

ICICI . Having said that, we find Petitioner contention that Borrowers

had retained possession of the original title deeds of the said flats to

also be entirely misplaced and untenable and contrary to a proper

reading of the loan agreement and the declaration. In any event, the

same has been belied by Petitioner's Advocate being given and taking

inspection of the original title documents produced by Respondent

No.5. Insofar as Petitioner's contention that there was nothing to

show and/or demonstrate the intention of creating a mortgage by

Borrowers we find that the same is also beyond the scope of the

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jurisdiction of Respondent No.2 under Section 14 of the SARAFESI

Act.

C. Insofar as the said Application being barred by limitation we find that

that same is also misplaced and devoid of merit. Respondent No.5 has

taken steps in its capacity as a secured creditor under the provisions

of the SARFAESI Act to recover its dues. Respondent No. 5 has set

out that its right to enforce the said mortgage/security interest arose

only when the borrower's account turned Non Performing Asset

(NPA) which was on 1st March, 2007. Though the demand notice was

issued after inordinately long time, i.e., on 14 th October, 2015 the

same was within the period of 12 years when Respondents right to

enforce the mortgage was valid and subsisting. Thus Petitioner's

contention that the claim was beyond limitation is also entirely

untenable and in any event not one which would amount to being a

false statement. In any event, the same is a ground which could be

raised as a ground of appeal in the alternate remedy provided for in

law.

13. In the circumstances and for the reasons stated above we find no

merit in this Petition and the same is accordingly dismissed. We

make it clear that the observations in the present Petition have been

made only in the context of considering the maintainability of the

said present Writ Petition. The observations shall not come in the way

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of Petitioner should Petitioner choose to adopt appropriate

proceedings to either establish its title to the said flats and/or

challenge the impugned order.

14. Petition disposed. No order as to costs.

15. Dr. Chandrachud seeks continuation of the stay for Petitioner to take

such steps as advised. Mr. Tejani on instructions states that before

Respondent No.1 takes any action, they shall give minimum 15

working days notice. Statement accepted as an undertaking to this

Court.

        (A. S. DOCTOR, J.)                             (K. R. SHRIRAM, J.)