Delhi High Court
Sadhna Devi vs United Bank Of India & Ors on 21 May, 2018 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved On : 05.04.2018 Judgment Pronounced On : 21.05.2018 W.P.(C) 11801/2015 & C.M No. 3134/2015 SADHNA DEVI ….. Petitioner versus UNITED BANK OF INDIA & ORS ….. Respondents
Advocates who appeared in this case:
For the Petitioner :Mr.Rajendra Kumar Tiwari, Advocate. For the Respondents :Mr. Bheem Saln Jain, Adv. For R-1, Mr. S.S Ahluwalia and Mr. Jatin Teotia, Advocates for R-5. CORAM:
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL
HON’BLE MS. JUSTICE DEEPA SHARMA JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present writ petition under Article 226 of the Constitution of India essentially seeks a writ or direction in the nature of Certiorari to set aside the following impugned orders:

i) Order dated 16th October, 2015, passed by the Ld. Debt Recovery Appellate Tribunal(DRAT) in Appeal No. 319 of W.P.(C) 11801/2015 Page 1 of 18 2015 in SA No. 73/2009, titled as “Smt. Sadhna Devi vs. United Bank of India”;

ii) Order dated 6th November, 2012, passed by the Ld. Debt Recovery Tribunal(DRT) in SA No. 73/2009, titled as “Smt.

Sadhna Devi vs. United Bank of India”

iii) Order dated 31st August, 2009, passed by the Ld. A.C.M.M, Tis Hazari Court, New Delhi in Case No. 2236/2009, titled as “United Bank of India vs. Smt. Sadhna Devi”;

2. The facts as are necessary for the adjudication of the present petition, are briefly adumbrated as follows:-

a. The present petition is predicated on the alleged sale deed dated 14.03.2005(hereinafter referred to as ‘the subject sale deed’), annexed as P-4, executed by the husband of the petitioner, respondent No. 5 herein, namely, Sh. Anil Kumar (hereinafter referred to as the ‘repondent husband’) in favour of the petitioner, through which she claims title over the property bearing no. 3/157, Gali Ganga Ram, Teliwara, Chhota Bazar, Shahdara, Delhi- 110032(hereinafter referred to as ‘subject property’).
W.P.(C) 11801/2015 Page 2 of 18
b. Subsequent thereto, the respondent husband had admittedly sold the subject property to one, Smt. Anila Sharma by way of a sale deed dated 28.09.2006.

c. Smt. Anila Sharma availed a house loan for the purchase of the subject property and deposited the sale deed dated 28.09.2006 with the respondent bank with an intention to create an equitable mortgage.

d. On committing default in repayment of principal debt, the bank declared the account of Ms. Anila Sharma as a non performing asset on 31.07.2008 and issued a statutory notice under Section 13(2) of the Securitization and Reconstruction of the Financial Asset and Enforcement of Security Interest Act, 2002 (SARFAESI, 2002), claiming inter alia discharge of liability towards the bank wherein the subject property was mortgaged with the bank for availing the said loan.

e. The Court Receiver took the possession of the property on 09.10.2009 vide impugned order dated 31.08.2009, passed by the Ld. A.C.M.M, Tis Hazari Court, New Delhi, following which the petitioner filed SA No.73/2009 alleging rightful title W.P.(C) 11801/2015 Page 3 of 18 and possession over the subject property. The same was dismissed vide the order dated 06.11.2012 passed by the Debt Recovery Tribunal.

f. However, in the meantime the DRT directed the respondent bank to deliver possession of the ground floor to the petitioner subject to the latter filing an undertaking that the same shall be vacated as and when the respondent bank issues a direction of such nature.

g. The petitioner then appealed against the said impugned orders dated 06.11.2012 and 31.08.2009 before the DRAT. The DRAT vide order dated 07.05.2014 upheld the decision of the DRT and consequently dismissed SA No.73/2009.

h. Aggrieved by the decision of the DRAT, the petitioner filed a writ petition before this court being W.P.(C) 3899/2014 claiming that she purchased the subject property from the respondent husband by way of a settlement arrived at with the intervention of her relatives, owing to their strained relations.

i. The said writ petition came to be allowed whilst remitting the matter back to the DRT for proper adjudication of the case, W.P.(C) 11801/2015 Page 4 of 18 taking into consideration the certified true copy of the registered sale deed dated 14.03.2005 which was produced on record during the course of the said proceedings.

j. Subsequent thereto, on a re-appraisal of the documents and materials produced on record, the DRT vide order dated 07.07.2015, dismissed the said S.A. No. 73/2009 whilst observing that the recitals in the subject sale deed suggest that the same is unauthorized and as such amounts to a sham document.

k. Eventually the petitioner approached the DRAT and filed Appeal No. 3191/2015, impugning the order dated 07.07.2015 passed by the DRT in the said S.A No. 73/2009. The DRAT vide order dated 16.10.2015, whilst upholding the decision of the DRT, insofar as, it returned a finding to the effect that the sale deed dated 14.03.2005 is a sham document, dismissed the appeal in limine.

3. Before us, the contention of the learned counsel appearing on behalf of the petitioner is that the latter acquired a rightful right, title and interest in the subject property by way of the registered subject sale deed and that the W.P.(C) 11801/2015 Page 5 of 18 respondent Nos. 2 to 4 have no right, title and interest of any kind in the subject property so as to create a mortgage qua it or avail a loan against the same.

4. It is also urged on behalf of the counsel appearing for the petitioner that the latter had purchased the subject property from the respondent husband by way of a lawful consideration of Rs. 1.5 Lakhs, which settlement was arrived at with the intervention of her family members and relatives. The said consideration is stated to be in accord with the market price, as was prevalent at the relevant time.

5. On the contrary, learned counsel appearing on behalf of the respondent, whilst supporting the impugned orders in their entirety, would invite our attention to the subject sale deed to urge that the same is a sham document.

6. In this behalf, it is further urged that despite the said subject sale deed evincing the transfer of all documents pertaining to the subject property from the respondent husband to the petitioner at the time of its registration, no document is filed on record to prove the title of the latter over the subject property.

7. We have heard the learned counsel for the parties and perused the W.P.(C) 11801/2015 Page 6 of 18 entire case record.

8. Subsequent to the bank issuing a statutory notice under Section 13(2) of the SARFAESI, 2002 to Smt. Anila Sharma , demanding repayment of the liability towards the bank, incurred on account of securing a home loan by way of creating mortgage on the subject property and declaring the account of the latter as non performing asset; an application under Section 14(2) of the SARFAESI,2002 was moved by the respondent bank. The Ld. ACMM, Tis Hazari Courts, New Delhi vide order dated 31.08.2009 allowed the application and directed the possession of the subject property to be taken over by the respondent bank through the appointed Court Receiver. 9. At the stage of trial, the DRT whilst adjudicating upon the S.A No. 73/2009 filed on behalf of the petitioner struck inter alia the following issues:

“9. iii) Whether the applicant Smt. Sadhna Devi in SA 73/09 has acquired valid title and possession in respect of property as per the sale deed relied upon by her. …………..

v) Whether the respondent bank is entitled to proceed against the property in possession of the applicants as per section 13(4) of the SARFAESI Act.”
10. The DRT vide order dated 6.11.2012, disposed off the said S.A. no. 73/2009 with the following observations:

W.P.(C) 11801/2015 Page 7 of 18
“18. Point No. III The applicant Smt. Sadhna Devi claims title through her husband as per the sale deed dated 14.03.2005. Sh. Anil Kumar as per the document relied upon by Smt. Sadhna Devi had 105 sq. yards of property. In the suit he has stated that he had 100 sq. yards of property. In the sale agreement to Sh. Anil Kumar by Sh. Jai Bhagwan an area of 25 sq. yards was purchased from Sh. Jai Bhagwan. How his ancestor received the property so as to vest the same in favour of Sh. Anil Kumar is not explained. The bank has stated that the consideration shown is only Rs.1,50,000/- in the year 2005. Smt. Sadhna Devi has also produced an additional affidavit stating that Sh. Anil Kumar and Sh. Dinkar Sharma had conveyed to cheat the bank to create the documents of the property on 27.09.2006. The applicant had no difficulty at all to get such informations from her husband even though she says that husband was not living with her and she had purchased the property from her husband. The bank has stated that documents relied upon Smt. Sadhna Devi is sham documents. The total extent furnished in the sale deed is not correct. The sale consideration shown is not proportionate to the actual value. Thus overall situations compel this Tribunal to come to the conclusion that document relied upon by Smt. Sadhna Devi to prove the title is not a genuine document executed but it is a sham document created for the purpose and therefore, Smt. Sadhna Devi could not claim any right in respect of that property. The sale consideration is dis- proportionate as is evident from her own conduct that the portion of this property was mortgaged for a sum of Rs.2,60,000/-. Thereby the entire value would have been more, therefore, there are sufficient circumstances to indicate that the document of title relied upon by Smt. Sadhna Devi is a sham document and Smt. Sadhna Devi did not have title in respect of the property.”

21. Point No. V The bank has produced document to prove valid mortgage by Ms. Anila Sharma, Ms. Anila Sharma had purchased the property from Sh. Anil Kumar on 28.09.2006 on the same day W.P.(C) 11801/2015 Page 8 of 18 she had deposited the title deed with the bank with the intention to create equitable mortgage but I have stated while discussion of the facts in SA 76/10 that Sh. Anil Kumar cannot have sold the 20 sq. yards as that was already been assigned by valid document in favour of Smt. Kusum Lata. So the bank gets valid mortgage only in respect of the property excluding the 20 sq. yards purchased by Ms. Kusum Lata from Sh. Virender Yadav. To this extent respondent bank would succeed in their proposed action u/s 13 (4) of the SARFAESI Act.”

11. In order to determine the issues, evidence was led by the parties, essentially in relation to the subject sale deed. The same is extracted in full hereinbelow:-

“SALE DEED FOR VALUE OF Rs. 1,50,000/-

STAMP DUTY RS. 4,500/-
CORPN. TAX RS. 4,500/-
TOTAL RS. 9,000/-

This Sale Deed is hereby executed on this 14th day of March, 2005 at Delhi, by Shri ANIL KUMAR son of Late Shri GORDHAN RESIDENT OF 3/157, Gali Ganga Ram, Teliwara, Shahdara, Delhi 110032, hereinafter called the VENDOR;

IN FAVOUR OF Smt. SADHNA DEVI wife of Shri ANIL KUMAR resident of 3/157, Gali Ganga Ram, Teliwara, Shahdara, Delhi 110032, hereinafter called the VENDEE.

The expreseion of both the Vendor and Vendee shall mean and include their heirs, executors, representatives and assigns respectively.

Whereas the Vendor is the actual Owner and in possession of a built up property bearing Property No.3/157, area measuring 105 Sq. Yds., out of Khasra No.642, fitted with electricity and W.P.(C) 11801/2015 Page 9 of 18 water tap connection, alongwith its whole of the structure and rights to construct upto the last storey, Situated at Village CHANDRAWLI alias SHAHDRA, in the abadi of Lal Dora Abadi Deh Colony Known as Gali Ganga Ram, Teliwara, Illaqa, Shahdara, Delhi-110032, and bounded as under:- South: -Gali West: -Property of other North: Property of other East: Property of other Having been purchased the said Property Shri GORDHAN son of Late Shri SHIBBA From Shri RADHEY son of Shri GANPATI Vide a Sale Deed duly regd. as document No. 1658, in Addl. Book No. I, Volume No. 1674 at pages 153 to 156 on dt. 6/6/1932 in the Office of S. R. Delhi.

AND WHEREAS Shri GORDHAN has expired on dt. 23.3.1961. and his wife Smt. POONOO DEVI also expired on dt. 1/3/1988. After the death of Shri GORDHAN his legal heirs relinquish her share in favour of the said Vendor Shri, ANIL KUMAR Vide a Relinquishment Deed duly Regd. as document No. 550 Book NO. I, Volume No.817, on pages 126 to 129 on dt. 28/1/2003, in the office of S. R. VIII.

AND WHEREAS Shri ANIL KUMAR son of Late Shri GORDHAN is the actual, exclusive & sole owner of the above mentioned property.

AND WERHEAS the Vendor has agreed to sell the aforesaid property to the said Vendee in consideration of Rs. 1,50,000/- (Rupees. One Lack Fifty Thousand Only) and the said Vendee has also agreed to purchase the same from the said Vendor. The entire amount has been received by the Vendor from the Vendee as per details given in full and final settlement and admitted before the S. R. VIII Delhi. Nothing due remains between the said Vendor & Vendee.

DETAILS OF PAYMENT: –
Rs. 1,50,000/- (Rupees. One Lack Fifty Thousand Only) cash in advance.
W.P.(C) 11801/2015 Page 10 of 18
NOW THIS SALE DEED WITNESSETH AS UNDER: –

1. That in consideration of the above mentioned amount the said Vendor do hereby sell, convey, transfer and assigns all his rights, share, titles and interest etc. in respect of the above said property in favour of the said Vendee.
2. That all the expenses of the Sale Deed shall be borne and paid by the Vendee.
3. That all the dues and demands against the said property such as House- Tax, charges of Electricity and Water etc. whatsoever shall be paid by the said Vendor upto the date of registration of this Sale Deed and thereafter the same shall be paid by the said Vendee.
4. That all previous documents pertaining to the said property have been handed over to the said Vendee by the said Vendor at the time of registration of this Sale Deed.
5. That the Vendor hereby assures the Vendee that the above mentioned property is free from all sorts of encumbrances such as Sale, mortgage, gift, transfer, lien , loan , charges, decree, attachment, litigation, family disputes etc. and there is no defect in his/her title. If it is proved otherwise then the said Vendor shall be liable to indemnify the Vendee in full losses sustained by the Vendee.
6. That the said Vendee shall be authorized to get the above mentioned property mutated in her own name on the basis of this Sale Deed in the revenue record of Government such as M. C. D. or any other concerning authorities.
7. That hereafter the said Vendee shall become the absolute owner of the said property and shall be entitled to sell, mortgage, gift or to transfer the same to any other person in any consideration and also shall have full right to use, enjoy, keep-let or construct without any interference or disturbance from the said Vendor and his/her legal heirs.
8. That the Vendor has delivered the physical vacant possession of the above mentioned property to the Vendee at the spot.
9. That the Vendor with his Free-Will, sound mind, good health and without any pressure of any one, hereby sell, convey, transfer, and assign the above said property in the name of the Vendee and the Vendee is free TO HAVE AND TO HOLD absolutely and forever.
W.P.(C) 11801/2015 Page 11 of 18
IN WITNESSES WHEREOF THE Vendor & Vendee have signed this Sale Deed on the day, month and Year first above mentioned.” (emphasis supplied) 12. Upon remand of the matter back to the DRT, vide order dated 06.01.2015, passed by a Learned Single Judge of this court in W.P(C) 3899/2014; and having examined and construed the contents of the certified true copy of the subject sale deed, the Ld. Presiding officer of the DRT vide order dated 07.07.2015 opined that the subject sale deed was a sham document inasmuch as, neither the recitals in the sale deed were authentic nor was the sale consideration drawn according to the prevalent market rates, and thereby upheld the well grounded suspicion in relation to its authenticity, as elaborately documented by the DRT, in its impugned order dated 06.11.2012.

13. The said order dated 07.07.2015 passed by the DRT was carried in appeal by the petitioner by way of Appeal No. 319/2015 in S.A 73/2009 before the DRAT. The DRAT whilst dismissing the said appeal vide order dated 16.10.2015, came to the following conclusion : “As per the recitals in the sale deed, the appellant is shown to have received an area of 105 sq. yds of property from her husband. This much area was not even in possession of her W.P.(C) 11801/2015 Page 12 of 18 husband Mr. Anil Kumar as per the civil suit filed by him. The Tribunal accordingly has found that the recital in the sale deed that he had delivered possession of 105 sq. yds. to his wife would be false. This was one of the reasons for which the Tribunal found this sale deed to be a sham transaction.
The Tribunal has also considered the document to observe that the consideration shown is Rs.1,50,000/-. The appellant has stated that the property was mortgaged for a sum of Rs.2,60,000/- on 1.12.2008. This mortgage deed was not in conformity with the provisions of Indian Registration Act and Indian Stamp Act. The document was not drawn on proper stamp paper and was not admitted in evidence by the Tribunal below. This has been found to be another suspicious circumstance. The Tribunal below has also taken note of the fact that earlier the stand of the appellant was that the original title deed was lying in the property which was sealed under the orders of the High Court. Later, there was a change in the stand of the appellant who came up with the plea that the sale deed was not available. The appellant states that the sale deed is lost. No chain of documents was produced. After placing reliance on a decision of the Hon’ble Supreme Court in the case of V.M.Salim vs. Fathima Muhammed & Ors., (2011) 15 SCC 756, the Tribunal below has concluded that the sale deed dated 14.03.2005 relied upon to claim title is a sham document.”
14. In doing so, the learned DRAT placed reliance on the decision of the Hon’ble Supreme Court in V.M Salim vs. Fathima Muhammed & Ors. reported as (2011)15 SCC 756, wherein it has been categorically held that a document will be “sham” if it ostensibly creates rights/obligations, which are not intended to be acted upon by the parties to the deed, and is executed in W.P.(C) 11801/2015 Page 13 of 18 pursuance of a secret arrangement, with the ulterior motive of securing an undisclosed advantage to the owner. Furthermore, in the absence of a direct evidence to prove the same, recourse may be taken to clinching circumstantial evidence to establish the sham nature of a document. 15. From a perusal of the above extracted paragraphs, the following findings are reflected :-

a) At the outset, it may be observed that the assertion made on behalf of the petitioner that she received an area of 105 sq. yards of the subject property from the respondent husband is itself belied by the averment made by the latter in a civil suit filed by him seeking mandatory injunction against one, Ms. Bina Gupta, wherein he has clearly admitted to himself having possession of 100 sq. yards of the subject property.

b) The sale consideration for 105 sq. yards of the subject property as mentioned in the subject sale deed reflects the amount paid to be to the tune of Rs. 1,50,000/- . The petitioner has also admittedly claimed to have mortgaged the first floor of the subject property to one, Sh. Sunil Kumar Sharma against a loan W.P.(C) 11801/2015 Page 14 of 18 of Rs.2,60,000. The said mortgage deed is neither registered nor stamped in accordance with law and is therefore inadmissible in evidence. The contemptible conduct of the petitioner for availing a loan against an unauthorized deed of conveyance, as well as, acquiring the subject property at a disproportionate rate raises serious suspicion about the authenticity of the sale deed in question.

c) It is also relevant to note through the terms of Clause 4 of the subject sale deed, which explicitly mentions the factum of all title documents pertaining to the said property, being devolved to the custody of the petitioner; no primary and cogent evidence has been placed on record by the petitioner qua the subject property in this behalf, let alone placing on record the ancillary documents such as the house tax receipts, electricity bills, water bills etc. that come in aid to prove the title of the petitioner over the subject property.

d) Furthermore, no consistent stand is taken by the petitioner to demonstrate reasons for non-production of the subject sale deed in the earlier rounds of litigation.
W.P.(C) 11801/2015 Page 15 of 18
16. In view of the foregoing, it is needless to state that though primary evidence, is the best attainable evidence in order to prove the transaction in question, as also to prove the veracity of the contents of the recitals in the subject sale deed, yet the petitioner has been unable to satisfactorily prove the unavailability of the original subject sale deed, as is also reflected by the inconsistent stand taken by the petitioner qua the same, during the proceedings before the DRT and DRAT respectively. 17. In this view of the matter, it is also observed that the relinquishment deed in respect of the subject property which ought to have been in the possession of the petitioner on account of the alleged sale of the same on 14.03.2005, prior to the sale of the subject property to Ms.Anila Sharma, was in fact, in the possession of the latter and was duly submitted by her to the respondent bank to create a valid equitable mortgage. 18. In this behalf, an adverse inference is drawn against the petitioner inasmuch as, no explanation is offered by the latter for non-production of the said relinquishment deed and as to how the same found its way to Smt. Anila Sharma, when the same ought to have been in the custody of the petitioner on account of the purported execution of the subject sale deed. 19. Furthermore, the submission made on behalf of the petitioner that the W.P.(C) 11801/2015 Page 16 of 18 latter purchased the subject property from the respondent husband as a result of a settlement arrived at, by the intervention of her family members and relatives hold no water, inasmuch as, the materials on record clearly and unequivocally reflect that the petitioner is still residing with the respondent husband at her matrimonial house, therefore, eliminating all possibilities of existence of any marital discord between the parties. There is further no evidence produced on record to show any marital dispute between the petitioner and the respondent husband.

20. In keeping with the dictum of the Hon’ble Supreme Court of India in V.M Salim vs. Fathima Muhammed & Ors.(supra); and having perused the entire case record and the impugned orders dated 16.10.2015, 06.11.2012 and 31.08.2009; we are in complete agreement with the finding arrived at by the learned DRAT, DRT and Ld. ACMM, Tis Hazari Court, New Delhi respectively, to the effect that the petitioner cannot claim any right over the subject property, inasmuch as, her claim is based on a sham document. 21. Even otherwise, it is a settled law that the jurisdiction of a High Court under Article 226 of the Constitution of India cannot be exercised for re- appreciating the evidence and concurrent findings of facts of the authorities below, especially when they have not acted without jurisdiction or in excess W.P.(C) 11801/2015 Page 17 of 18 of jurisdiction vested in them and; there is no demonstrable perversity in the findings arrived at by them. [Ref : Krishnanand v. Director of Consolidation reported as (2015) 1 SCC 553; State of U.P. v. Lakshmi Sugar & Oil Mills Ltd. reported as (2013) 10 SCC 509] 22. In this view of the matter, in view of the facts and circumstances elaborated hereinabove, we find no legal or factual infirmity in the impugned orders passed by the DRT, DRAT and the Ld. ACMM, Tis Hazari Court, New Delhi, respectively.

23. Consequently, we find no ground to interfere with the impugned orders. The petition is devoid of any merit and is accordingly dismissed. Pending application also stands disposed off.

SIDDHARTH MRIDUL (JUDGE) DEEPA SHARMA (JUDGE)
MAY 21, 2018
dn/niharika W.P.(C) 11801/2015 Page 18 of 18

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