DRAT held that the right of redemption under Section 13(8) of the SARFAESI Act is limited to the mortgagor, and a third party in possession of the mortgaged property cannot challenge the measures taken by the secured creditor.
The Debts Recovery Appellate Tribunal (DRAT), Mumbai Bench, headed by Justice Ashok Menon (Chairperson), addressed an IA in an appeal and held that the right of redemption under Section 13(8) of the SARFAESI Act is exclusive to the mortgagor or a transferee stepping into the mortgagor’s shoes. A third party without proprietary interest or locus standi cannot invoke this right to challenge SARFAESI measures. Furthermore, settled possession without legal title does not bar the enforcement of the secured creditor's rights under SARFAESI.
The appellant, aggrieved by the dismissal of Securitisation Application No. 304 of 2019 by the Debt Recovery Tribunal-II, Mumbai, appealed under Section 18 of the SARFAESI Act, 2002, challenging the SARFAESI measures initiated by the first respondent financial institution (FI). The dispute involved Flat No. 802, Shanta Shivam CHS Ltd., Mumbai, mortgaged to secure a ₹1.10 crore loan obtained by respondents Nos. 4 and 5. The appellant, holding possession of the flat since 2005, claimed rights arising from a subsequent MoU executed in 2009 and contended that the mortgage was sham, unregistered with CERSAI, and executed without his knowledge.
The appellant relied on his uninterrupted possession, asserting protection under the principle of settled possession as enunciated in Rame Gowda v. M. Varadappa Naidu. He further invoked Section 13(8) of the SARFAESI Act, offering to redeem the dues, arguing that the right of redemption under this section is broader than that under Section 60 of the Transfer of Property Act. The FI, however, contended that the appellant lacked locus standi, being neither a borrower nor a mortgagor, and described him as a trespasser relying on an unregistered MoU. It defended the mortgage’s validity, arguing that no other respondents challenged the SARFAESI proceedings.
The Debts Recovery Appellate Tribunal (DRAT) examined the contentions and rejected the appellant’s claims. It held that redemption under Section 13(8) is a right exclusive to the mortgagor or a transferee stepping into the mortgagor’s shoes. The appellant, possessing no proprietary interest or assigned rights, could not invoke this provision. The Tribunal also ruled against the appellant’s claim of settled possession, finding that his occupation lacked the legal protection to bar SARFAESI measures. It observed that while the appellant could participate in the auction process, he could not demand the adjustment of his earlier deposit against the mortgage debt.
On the issue of the mortgage’s non-registration with CERSAI under Section 26D of the SARFAESI Act, the Tribunal held that the provision was inapplicable, as the measures commenced before its enactment on January 24, 2020. Additionally, the Tribunal rejected the appellant’s challenge to the mortgage deed’s validity under Section 59 of the Transfer of Property Act, noting that it bore the signatures of two attesting witnesses and was admitted by the mortgagor. Citing Section 68 of the Evidence Act, the Tribunal ruled that the appellant, being a third party, lacked the locus standi to dispute the mortgage’s execution.
The Tribunal concluded that the appellant failed to establish himself as an “aggrieved person” under Section 17(1) of the SARFAESI Act. It found no prima facie case in favour of the appellant, who also failed to demonstrate irreparable injury or balance of convenience. Accordingly, the appeal was dismissed, interim protection was vacated, and the appellant’s contentions were declared meritless.
Mr. Umesh Shetty, Senior Advocate i/b Mr. Onkar Virendra Warange, Advocate represented the Appellant.
Mr. Dinesh Purandare along with Mr. Vishal Maheshwari and Mr. Mihir Beradia i/b M/s. V.M. Legal, Advocate appeared for Respondent No. 1.
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