Gunjan Sachdeva vs M/S Dewan Housing Finance Corp. ...
2017 Latest Caselaw 5293 Del

$~17.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 8344/2017 and CM APPL. 34456/2017
       GUNJAN SACHDEVA                            ..... Petitioner
                   Through: Ms. Pratiti Rungta, Advocate with
                   Mr. Sumit Pargal, Advocate

                         versus

       M/S DEWAN HOUSING FINANCE CORP. LTD AND ORS
                                                   ..... Respondents
                   Through: Mr.Sanjeev Pathak, Advocate for R-1.
                   Ms. Suruchi Aggarwal, Advocate for R-2.

       CORAM:
       HON'BLE MS. JUSTICE HIMA KOHLI
       HON'BLE MS. JUSTICE DEEPA SHARMA

                         ORDER

% 21.09.2017

1. The petitioner has filed the present petition being aggrieved by an order dated 30.08.2017 passed by the learned DRAT in Appeal No.282/2017 filed by her against the order dated 20.05.2017, passed by the DRT-I, Delhi, on an application that was filed by her under Section 17 of the SARFAESI Act (SA 89/2004), for quashing and setting aside the proceedings initiated by the respondent No.1/DHFC Ltd. and the respondent No.2/Punjab and Sind Bank (PSB) in respect of the second and third floors with roof rights of premises bearing No.C-1/189, Lajpat Nagar-I, New Delhi.

2. Vide order dated 20.05.2017, the learned DRT had dismissed three sets of SAs filed by three sets of persons including the petitioner herein, claiming ownership of different floors of the subject premises and had

expressed a view that some of the Sale Deeds and Gift Deeds executed in favour of the applicants in all the three SAs, are fraudulent documents. Further, the respondents were permitted to proceed first in respect of the second and third floors of the subject property to recover their dues and in case of any further dues still remaining outstanding, liberty was granted to them to proceed against the other floors of the subject premises. Pertinently, the subject premises comprises of a small basement, ground floor, first floor, second floor, third floor and roof above the third floor.

3. Aggrieved by the aforesaid order, when the petitioner had approached the learned DRAT by filing an appeal, vide order dated 30.08.2017, directions were issued not to dispossess her from the subject premises, subject to her depositing half of the debt sought to be recovered by the respondents No.1 and 2. In the light of the submission made by the petitioner that she being a bonafide purchaser of the subject premises on the basis of title documents executed in her favour by the borrowers of the Bank and not being liable to pay any money, the said deposit was made subject to further orders to be passed in the appeal.

4. Learned counsel for the petitioner submits that as per the chain of the title documents in respect of the subject premises that were placed before the learned DRT, Smt. Vidyawanti, the original owner had got the premises converted from leasehold into freehold and the L&DO had executed a Conveyance Deed in her favour on 04.02.1997. On 21.12.2009, Smt. Vidyawanti had executed two Gift Deeds in respect of the second and third floors of the subject premises in favour of her grandson, Shri Ashish Dutt. Shri Ashish Dutt had in turn, executed a Sale Deed dated 16.04.2013, in respect of the second floor in favour of the petitioner and a separate Sale

Deed dated 16.03.2013 was executed by him in favour of the petitioner in respect of the third floor, that was got registered on 16.04.2013. Two months down the line, on 20.06.2013, the petitioner had approached HDFC Bank and taken a loan of Rs.50 lacs against the second floor, by depositing the original Sale Deed and the Gift Deed, referred to above.

5. The second set of title documents produced by the respondent No.1/DHFL reveals that Smt. Vidyawanti, who had got the subject premises converted into freehold and a Conveyance Deed the L&DO had executed in her favour on 04.02.1997, had executed a registered Gift Deed dated 13.12.2010, in respect of the entire premises in favour of her daughter-in- law, Smt. Reena Dutt, who happens to be the mother of Shri Ashish Dutt. Pertinently, as per the original documents in the possession of the petitioner, by the said date, Smt. Vidyawanti had already gifted the second and third floors of the premises to Shri Ashish Dutt on executing two registered Gift Deeds in his favour, both dated 21.12.2009. In other words, on 13.12.2010, Smt. Vidyawanti was not the owner of the second and third floors for her to have executed any gift deed in favour of Shri Ashish Dutt's mother, Smt. Reena Dutt.

6. On 27.06.2012, Smt. Reena Dutt, her husband, Kuldeep Rai Dutt and their son, Shri Ashish Dutt approached the respondent No.1/DHFCL for obtaining a loan for a sum of Rs.1,52,00,000/- which was duly sanctioned against a mortgage created in respect of the entire property, in favour of the said respondent.

7. The third set of title documents which are in the possession of the respondent No.2/P&SB reveal that after the Conveyance Deed dated 04.02.1997 was executed by L&DO in favour of Smt.Vidyawanti, she had

gifted the second floor and the third floor to her grandson, Shri Ashish Dutt, by executing two separate registered Gift Deeds, both dated 21.12.2009. Shri Ashish Dutt had in turn, approached the respondent No.2 in March, 2013 for obtaining a loan of Rs.78 lakhs, by offering to mortgage the second and third floors, which request was processed and the loan finally sanctioned on 24.06.2013. Pertinently, in the interregnum, as per the documents in the possession of the petitioner, Shri Ashish Dutt had already executed a sale deed dated 16.3.2013 in respect of the second floor and a sale deed dated 16.4.2013, in respect of the third floor, in favour of the petitioner.

8. What emerges from the above is that the petitioner claims to be in possession of the following original documents relating to the second and third floors of the subject premises purchased by her from Shri Ashish Dutt and subsequently mortgaged with HDFC Bank:-

(i) Conveyance Deed dated 04.02.1997.

(ii) Two registered Gift Deeds, both dated 21.12.2009 in respect of the second and third floor.

(iii) Two registered Sale Deeds dated 16.04.2013 and 16.3.2013 in respect of the second and third floors respectively.

9. The respondent No.1/DHFCL has in its possession, the following original documents, stated to have been submitted by Shri Ashish Dutt and his parents, for creating a mortgage of the entire property:-

(i) Conveyance Deed dated 04.02.1997

(ii) Registered Gift Deed dated 13.12.2010 in respect of the entire property.

10. The respondent No.2/P&SB has in its possession, the following original documents submitted by Shri Ashish Dutt for creating a mortgage of the second and third floors:-

(i) Conveyance Deed dated 04.02.1997

(ii) Two registered Gift Deeds, both dated 21.12.2009 in respect of the second and third floors.

11. From the above, it prima facie appears that there has been some tampering/forgery of title documents in respect of the subject premises as all the sets of original documents stated to be in the possession of the parties can obviously, not be genuine. Both the respondents appear to have extended substantial loan amounts to Shri Ashish Dutt and his parents on the basis of the title documents submitted by them. In this background, we deem it expedient to refer the matter to the Economic Offences Wing of the Delhi Police, for an investigation to be conducted into the matter, for which purpose, they shall be entitled to call upon all the concerned parties to produce the original documents in respect of the subject premises, in their power and possession for examination and verification. The said investigation shall be conducted under the supervision of the learned DRAT and a preliminary report shall be submitted before the said forum within six weeks, followed by a final report. A copy of the said reports shall also be placed on the file of this petition. As and when the reports are received, the Registry shall place the same before the Court for perusal.

12. Coming back to the case in hand, the plea of the counsel for the petitioner is that the title documents in respect of the second and third floors that were executed by Shri Ashish Dutt in her favour, are prior in time to the

documents pertaining to the same floors in the power and possession of the respondent No.2/P&SB and are also prior in time to the documents executed in favour of the respondent No.1/DHFCL. Learned counsel states that her client is willing to deposit 50% of a sum of Rs.1,57,00,000/-, the amount due and payable to the respondent No.1/DHFCL in respect of the entire property, after adjusting a sum of Rs.10 lakhs deposited earlier by the petitioner before the DRT-I and duly appropriated by the respondent No.1/DHFCL, for seeking extension of the protection granted in terms of the order dated 30.08.2017 passed by the DRAT. She, however, seeks two months' time to deposit the said amount.

13. To test the bonafides of the petitioner, we have enquired from learned counsel for the petitioner if she is willing to deposit at least a sum of Rs.20 lakhs from out of the sum of Rs.68 lakhs, which amounts to 50% of Rs.1,57,00,000/-, less Rs.10 lakhs. Learned counsel expresses her inability to deposit a sum of Rs.20 lakhs and requests that the same may be reduced to half. The petitioner is directed to deposit a sum of Rs.15 lakhs with the DRAT on or before the next date fixed before the said forum. The balance sum of Rs.48 lakhs shall be deposited on or before 31.10.2017.

14. At this stage, counsel for the respondent No.2/P&SB states that against a loan of Rs.78 lakhs extended by the Bank to Shri Ashish Dutt against the second and third floors, not a penny has been received by the respondent No.2 till date and in terms of the Securitisation Notice, the amount recoverable in respect of the said floors mortgaged with the Bank, is to the tune of Rs.82 lakhs (approx.).

15. We make it clear that apportionment of the amounts, if any, payable to the respondents No.1 and 2 is a matter that is left open for being decided

by the learned DRAT. It shall be for the learned counsel for the petitioner to persuade the DRAT to waive 50% pre-deposit of the amount claimed as a debt payable to the respondent No.2. If the petitioner does not succeed in the appeal on merits, the amount deposited by her shall abide by the final orders that may be passed by the learned DRAT, in accordance with law. We are however refraining from making any observations on the merits of the case.

16. Subject to the petitioner complying with the directions issued above, the order dated 30.08.2017, passed by the learned DRAT, staying her dispossession from the second and third floors with roof rights of the subject premises, shall continue to remain in operation. In case of any default, the DRAT shall be at liberty to alter/modify or vacate the said order.

17. A copy of this order be forwarded by the Registry forthwith to the EOW, Delhi Police, for perusal and compliance.

18. The petition is disposed of alongwith the pending application.

DASTI to the counsels for the parties, under the signatures of the Court Master.

HIMA KOHLI, J

DEEPA SHARMA, J SEPTEMBER 21, 2017 rkb