• Bank's misdeeds

Sirs/Mams

“Mr X” took Flat on Leave License for 33 Months on 4-4-14 from Owner & paid Deposit 6.0 Lacs and executed “L/L Agreement” & registered it and since then he has possession of Flat 

In January 2015, one Bank sent Recovery People and threatened to “Mr X” to Vacate Flat and on 16-2-2015 Bank sent letter asking to submit documentary details. 

Then “Mr X” sent details of L/L and deposit to Bank which were duly received by Bank 

At the time of executing L/L/ Agreement, Owner had not revealed to “Mr X” about Loan 

“Mr X” issued one-month notice to Owner to return his Deposit but all attempts went in vein

“Mr X” learnt from reliable sources that Owner and Bank were selling Flat without returning Security Deposit to “Mr X”

So, “Mr X” filed Civil Suit (RCS) before Civil Judge for suit & declaration against the Owner and the Bank, too and the said suit was duly registered and Notices/Summons of the Suit were served to the Bank on [deleted]

But on 18-3-2016, Bank filed S.A. u/s.14 of SARFEASI Act before Dist. Magistrate and concealed all above Facts and thus obtained Order on [deleted] to take possession of Flat with help of Police

And thereafter Bank took forceful possession of the Flat from “Mr X”. 


Disputes (Bank's Misdeeds) :- 

Here, the case is that the Bank was successfully served summons and Notices of the RCS (Civil Suit) on [deleted] but even then instead of appearing before Civil Court, the Bank filed S.A. u/s.14 of SARFEASI Act before Dist. Magistrate on [deleted] and the Bank concealed two Material Facts from the District Magistrate as under :- 

(1)	The Bank did not disclose before District Magistrate that the Civil Suit is pending on the same Flat and further that the Bank had been served summons thereof AND

(2)	The Bank did not disclose before District Magistrate that “Mr. X” was in exclusive possession of the same Flat and he was residing therein since last 02 years on strength of registered L/L/ Agreement executed between the original Owner of Flat

 Views of Hon’ble Apex Court :-

 If the applicant does not disclose all the material facts fairly and truly, the such application 
 requires to be dealt with for contempt of Court for abusing the process of the Court

 The applicant must state fully and fairly the facts by which the Court enforces obligation 
 and if it finds out that the facts have not been fully and fairly stated to it the Court will set 
 aside any action which it has taken on the faith of the imperfect statement


Query 

(1)	What can be done to restore the possession 

(2)	Can we file Application u/s. 340 of CR. P.C. and Contempt of Court Act to prosecute the Respondents (Bank) 

(3)	What are other Remedies to get back Rs. 6.0 Lacs


Plz. Guide
HARIOM
Asked 6 years ago in Criminal Law
Religion: Hindu

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16 Answers

Hello,

the bank has obtained order by fraud and therefore you may challenge such order before the HC also under art 226 of the Constitution of India on the ground that one must come to the court with clean hands.

Also since you now just want the deposit back from your landlord therefore you must now file a suit for recovery and damages.

HariOm

Regards

Anilesh Tewari
Advocate, New Delhi
18079 Answers
377 Consultations

5.0 on 5.0

1. There is a basic error in understanding the matter. SARFAESI Act is a draconian Act based on which the lending Banks can recover their dues by initiating SARFAESI proceedings against the defaulting Borrowers and sell their mortgaged properties after taking physical possession of the same through DM u/s14 of the Act.

2. DM's office has an application format detailing few informations which are to be discloised under affidavit (in 24-Parganas District, West Bengal has 27 such information to be disclosed).One such information is "whether any application is pending before DRT or not" and if there any sucn application pending before DRT, DM will not pass any order u/s14 of the Act.

3. What you were required to do was to file a SARFAESI Application (S.A.) before the DRT within 45 days from the date of receipt of the Possession Notice (also required to be affixed on the wall of the mortgaged property).

4. If it is with in 45 days from the date of your dispossession u/s14 of the Act, you can still file a S.A before the local DRT.

5. However, it appears that your landlord has grossly cheated you if he has leased you his premises after mortgaging the same with the Bank.

6. You were required to see the original Title Deed of the premises before paying him the amount since mortgage is created by depositing the original Title deed with the lending Bank.

7. You should lodge a police complaint for cheating you immediately and if police fails or refuses to register a FIR against the land lord, file a Writ Petition before the High Court against police inaction praying for direction upon the police to register FIR against the land lord, investigate and act based on your complaint.

8. No Contempt of Court proceeding lies in the instant case.

9. If you have take the lease before the property was mortgaged, then the Bank can not dispossess you and shall have to take possession of the mortgaged property along with its leasee being yourself for which there has been clear Judgement passed by the Apex Court.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

ndian Bank v. Satyam fibres (India) Pvt. Ltd., (1996) 5 SCC 550; it has been observed that " Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.”

File a review petition under Section 22(2)(e) to review the order.

Rajaganapathy Ganesan
Advocate, Chennai
2132 Answers
8 Consultations

4.9 on 5.0

file appeal under section 17 of SARFESI act against the order of magistrate to take forcible possession of flat

2) enclose copy of registered leave and licence agreement nad proof of service of summons to bank and owner

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

Lodge a criminal complaint (FIR) against the Licensor for cheating and fraud. Once he's behind the bars, he will have to either pay back your 6 lacs, or face the trial.

Kiran Kamthe
Advocate, Thane
27 Answers

4.9 on 5.0

Apart from what you have stated in your case. Even cheating complaint is maintainable in your case. Go for FIR. If not registered by police go for complaint in Court and try to secure orders u/s 156(3) of crpc

Prashant Nayak
Advocate, Mumbai
32164 Answers
185 Consultations

4.1 on 5.0

1. Well, the tenant explored wrong legal forum by filing civil suit to redress his remedy.

In disputes involving SARFAESI Act the civil court is specifically divested of rights to adjudicate such dispute.

So your remedy lies before the DRT only to seek cancellation of sale and restoration of possession.

I regret the proceeding under section 340 crpc is totally misconceived and non maintainmaintainable.

The tenant can though file money recovery suit against the landlord to get back his money.

However since in this case tenant was dispossessed he has a good case in DRT to get back his possession.

Devajyoti Barman
Advocate, Kolkata
22921 Answers
498 Consultations

5.0 on 5.0

at first instance tenant should go to the DM for vacating the order passed in SA. further the tenant will run to DRT for proceeding against bank under SARFEASI.

Manish Paul
Advocate, Kolkata
287 Answers
2 Consultations

4.9 on 5.0

1. You invoked the jurisdiction of the wrong forum in the first place. When you received the possession notice you ought to have moved the Debt Recovery Tribunal (DRT) within 45 days from the date of receipt of the said notice.

2. Since the property was mortgaged with the bank and a charge created thereon in favour of the bank the landlord could not have created a lease in your favour. The act of the landlord constitutes cheating under Section 420 IPC. There is lack of due diligence even on your part as you ought to have ascertained whether he has the title to the property which he wants to lease to you.

3. File a criminal complaint for the offence of cheating under Section 420 IPC against the landlord.

4. There is no contempt of court made out in your case.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

When there was an order from SDM to evict you, the option before you was to represent your case with the details and requested the SDM to withdraw the said order since the matter is already pending before court or to file a writ before high court seeking to restrain the respondents from taking possession and to stay the orders of the SDM.

Have you taken this action then or not?

The proposed application under section 340 cr.p.c. is not maintainable.

You file a suit for recovery of your deposit from the landowner and implead bank as necessary party though no relief may be sought against the bank.

T Kalaiselvan
Advocate, Vellore
85422 Answers
2239 Consultations

5.0 on 5.0

Yes that amounts to hiding the facts from the court and going to the court with unclean hands.

Regards

Anilesh Tewari
Advocate, New Delhi
18079 Answers
377 Consultations

5.0 on 5.0

The bank has intentionally suppressed the fact of pending civil suit in this regard.

Once you got a notice you should have approach the SDM court and filed a petition to stall the proceedings filed by the bank before it in view of the pending civil suit and if possible you should get an injunction order against the further proceedings.

Without taking any steps in this regard you cannot get any relief playing the blame game.

At least now you can approach high court to stall the proceedings and orders of the SDM in this regard or else you cannot get any relief

T Kalaiselvan
Advocate, Vellore
85422 Answers
2239 Consultations

5.0 on 5.0

It amounts to suppression of material facts

Impugned order ought to be set aside in appeal

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

1. Pending Civil Case does not deter lending Bank in initiating SARFAESI Proceedings against its defaulting Borrower whose loan account has been classified as NPA.

2. The lending Bank need not reveal that Civil Case is pending while filing the application before the DM u/s14 of the SARFAESI Act, since Civil Court has no jurisdiction to deal with the matter which is to be dealt by the DRT as has been clearly mentioned in section 34 of the said Act.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

It is again suppression of material facts and not false averments which has been sworn during trial. Therefore, my reply to you earlier stands.

Rajaganapathy Ganesan
Advocate, Chennai
2132 Answers
8 Consultations

4.9 on 5.0

1. A fact which is not material to the outcome of the case need not be mentioned in the case. The fact remains that civil court, whose jurisdiction you have invoked, has no jurisdiction in the first instance to decree the suit. Hence, the bank was under no obligation to mention in its application before DM about the pendency of the case which had been filed by you in the forum that has no competence to entertain it. So there is no suppression of facts, much less material facts.

2. You have been casual in dealing with the matter as you ought to have gone to DRT whn you received the notice. Now the only remedy for you is to file a writ petition in the High Court to seek a stay on the proceedings before the DM.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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