2025 (3) TMI 112 - HC - Indian Laws

Entitlement to restoration of the subject property - petitioner has not made a pre-deposit in terms of Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 - HELD THAT - The petitioner does not dispute that the property was mortgaged by the father on 13th April 2012. The petitioner also does not dispute that the medical document alleging her father s mental illness or incapacity is dated 22nd August 2015 i.e. post the creation of the mortgage. This submission alongwith the contention that her share in the said property cannot be put to auction by the bank are all disputed questions of facts which can only be adjudicated by DRT or DRAT. It is apparent from the submissions that the petitioner has stepped into the shoes of the borrower as she is claiming her rights upon the mortgaged property. It is also clear that the respondent no.1/bank has the first charge on the said mortgage property. It is apparent that the petitioner has to comply with the statutory requirement of making a pre-deposit in terms of Section 18 of the SARFAESI Act. No application seeking waiver of the pre-deposit was filed before the DRAT. In the present petition there is no averment as to why pre-deposit has not been made by the petitioner. It is trite that pre deposit is mandatory in the absence whereof the DRAT may not be able to entertain an appeal filed by a party. Petition dismissed.

ISSUES PRESENTED and CONSIDERED:

1. Whether the petitioner is entitled to restoration of possession of the subject property?

2. Whether the petitioner's share in the subject property can be put to auction by the bank?

3. Whether the petitioner is required to make a pre-deposit in accordance with Section 18 of the SARFAESI Act?

ISSUE-WISE DETAILED ANALYSIS:

Issue 1: Restoration of Possession of Subject Property

- Relevant legal framework and precedents: Articles 226 & 227 of the Constitution of India, 1950; SARFAESI Act, 2002.

- Court's interpretation and reasoning: The Court noted that the petitioner's claim regarding restoration of possession was based on disputed questions of fact which should be adjudicated by the lower authorities.

- Key evidence and findings: The property was mortgaged by the petitioner's father, and the petitioner did not dispute this fact. The petitioner's claim of her father's mental incapacity post the creation of the mortgage was also considered.

- Application of law to facts: The Court determined that the petitioner needed to comply with the statutory requirement of making a pre-deposit under the SARFAESI Act before seeking relief.

- Conclusions: The Court dismissed the petition for restoration of possession due to the petitioner's failure to make the required pre-deposit.

Issue 2: Auction of Petitioner's Share in Subject Property

- Relevant legal framework and precedents: SARFAESI Act, 2002.

- Court's interpretation and reasoning: The Court acknowledged the petitioner's claim to a share in the subject property but emphasized that the bank had the first charge on the mortgaged property.

- Key evidence and findings: Discrepancies in the property measurements and allegations of concealment of information by the respondent no.4 were noted.

- Application of law to facts: The Court held that the petitioner's claim on her share in the property should be addressed by the lower authorities through the appropriate legal process.

- Conclusions: The Court did not interfere in the auction proceedings initiated by the bank due to the petitioner's failure to comply with the pre-deposit requirement.

Issue 3: Pre-Deposit Requirement under SARFAESI Act

- Relevant legal framework and precedents: SARFAESI Act, 2002; Kotak Mahindra Bank Pvt. Ltd. vs. Ambuj A Kasliwal & Ors. (2021) 3 SCC 549.

- Court's interpretation and reasoning: The Court emphasized the mandatory nature of the pre-deposit requirement under the SARFAESI Act and the consequences of non-compliance.

- Key evidence and findings: The petitioner failed to make the pre-deposit and did not provide any justification for the same.

- Application of law to facts: The Court held that without the required pre-deposit, the appeal filed by the petitioner could not be entertained by the DRAT.

- Conclusions: The Court dismissed the petition for failure to comply with the pre-deposit requirement and upheld the decision of the lower authorities.

SIGNIFICANT HOLDINGS:

- The Court emphasized the importance of complying with statutory requirements, particularly the pre-deposit provision under the SARFAESI Act, for seeking relief in matters related to mortgage properties.

- The Court clarified that disputed questions of fact concerning property rights should be resolved through appropriate legal channels and not through writ petitions under Articles 226 & 227 of the Constitution of India.

- The final determinations on each issue were in favor of dismissing the petition due to the petitioner's failure to meet the legal prerequisites for seeking relief.

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