Bangalore District Court
M/S Sohan Reaalty vs M/S Capri Gobal Capital Limited on 18 December, 2025
1 O.S.No.3799/2023
KABC010156192023
Presented on : 20.06.2023
Registered on : 20.06.2023
Decided on : 18.12.2025
Duration : 02 years, 05 months, 29 days
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH.44) AT: BENGALURU CITY
PRESENT: Sri. SHIVANAND MARUTI JIPARE,
B.A., LL.B. (Spl.)
Holding Concurrent Charge of XLIII Addl. City Civil
and Sessions Judge, Bengaluru.
Dated this the 18th day of December, 2025
ORIGINAL SUIT No.3799/2023
PLAINTIFF: M/s. Sohan Reaalty,
A Registered Partnership Firm,
Having its registered office at:
'Sohan Exotica'
Flat No.101, A Block,
Rajiv Gandhi Nagar Road,
Sahakar Nagar, Kodigehalli,
Bengaluru 560065.
2 O.S.No.3799/2023
Represented by its partners/
authorized signatories,
Mr.Vinay Kumar D,
Mr. Abhishek C.
(By Sri.Raghavendra C., Advocate.)
:VERSUS:
DEFENDANTS: 1. M/s.Capri Gobal Capital Limited,
Regd. Off: 502, Tower A,
Peninsula Business Park,
Lower Parel,
Mumbai-400013.
Having its local branch office at
Golden Square Business Centre,
No.102, Eden Park,
#20, Vittal Mallya Road,
Bengaluru 560001.
Represented by its
Authorized Officer:
Mr.Yadhu Krishnan
Ramakrishnan.
2. M/s. Manyam Estates Private
Limited,
Registered under
Companies Act, 2013.
Registered Office:
No.2273, 2nd Floor, Samruddhi,
16th Cross, 24th Main,
Haragadde, Jigani,
Bengaluru - 560105.
3 O.S.No.3799/2023
Also at Office at Sy.No.19,
Surabhi Layout,
Jakkur Main Road,
Beside Vijaya Bank,
Yelahanka,
Bengaluru-560064.
Represented by its
Managing Director,
Mr. M.Vijay Kumar.
3. M/s. Navya Infracon Projects
India Private Limited,
Registered office at H.No.78,
Sector-12, MVP Colony,
Visakhapatnam-530017.
Represented by its
Managing Director,
Mr. M.Vijay Kumar.
4. Mrs. Machireddy Bindu Madhavi,
W/o. Machireddy Venktarami
Reddy,
Aged About 48 years,
R/at. No.1/304, First Road,
Anantapur,
Andrapradesh-575001.
5. Mr. Mohammad Sulaiman Khan,
S/o. Late S.Dawood Khan,
Aged about 52 years,
R/at. No.8, 6th Main Road,
RMS layout, Sanjaynagar,
Bengaluru -560095.
4 O.S.No.3799/2023
6. Mrs. Nigarsultana,
W/o. Mohammad Sulaiman Khan,
Aged about 49 years,
R/at. No.8, 6th Main Road,
RMS layout, Sanjaynagar,
Bengaluru-560095.
(By Sri.K.V.Lokesh., Advocate for D-1.)
(By Sri.Jagadeesha Gowda., Advocate for D-2 & D-3.)
(By Sri.S.Vasanth Madhav., Advocate for D-4.)
(By Sri.V.Sanjay Krishna., Advocate for D-5 & D-6.)
************
Date of Institution of the suit 20.06.2023
Nature of the suit Suit for declaration and
permanent injunction
Date of commencement of 27.08.2024
recording of evidence
Date on which the judgment 18.12.2025
was pronounced
Total Duration Years Months Days
02 05 29
(SHIVANAND MARUTI JIPARE)
C/C. XLIII ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.
5 O.S.No.3799/2023
************
JUDGMENT
The plaintiff has filed this suit against the defendants seeking to declare that the registered agreement of sale dated: 27.02.2020 executed by 2nd defendant representing 5th and 6th defendant in favour of the 4th defendant as invalid/void and non-est/illegal and not binding on itself in so far as suit schedule 'B' property and consequently, direct the office to send a copy of the decree to the office of Sub-Registrar, Gandhinagar (Byatarayanapura), Bengaluru, enabling to make necessary entry about the factum of declaration of registered agreement of sale dated: 27.02.2020 as invalid/void and non-est/illegal in their relevant books and for permanent injunction restraining 2 nd defendant its agents, servants, relatives, representatives, henchmen оr anybody claiming through or under them, directly or indirectly, from completing sale transaction in respect of 6 O.S.No.3799/2023 the said suit schedule property in any manner whatsoever with 4th defendant or her nominee/s, with costs.
2. The brief facts averred in the plaint are as follows:
That the plaintiff is the registered partnership firm, having its registered office at 'Sohan Exotica', flat No.101, 'A' Block, Rajiv Gandhi Nagar Road, Sahakar Nagar, Kodigehalli, Bengaluru - 560065, which is engaged in the business of real estate and investments. The 1 st defendant had represented to the plaintiff, that it had facilitated loan in favour of 2 nd defendant to a tune of Rs.16,00,00,000/-, the 3 rd defendant was the co-borrower and sister concern of 2 nd defendant, for the residential project titled 'Manyam Sky Park' being developed by 2 nd defendant consisting of 2 towers developing BF+GF+10 upper floors having an aggregate saleable area of about 1,72,261 sq. feet (127 units) out of which 2 nd defendant's 7 O.S.No.3799/2023 share is 94,913 sq.ft. (73 units). The 1 st defendant had also represented to the plaintiff that the defendant Nos.2 and 3 in order to secure the said loan, they had executed registered indenture of mortgage without possession dated: 03.04.2018 in favour of 1 st defendant, creating mortgage of development rights and 65 Nos. of unsold apartment units constructed over property measuring an extent of about 3,855 square meters, comprised in western portion of survey Nos.18/1 and 19 of Shivannahalli village, situated at Shivannahalli village, Yelahanka Hobli, Bengaluru North Taluk, duly converted for non-agricultural residential purpose vide conversion order bearing No.ALN(NAY)SR/180/2008-09, dated:
03.06.2009 and now bearing Municipal Khata No.876/4/, Sy.No.18/1, 18/2, 19, Shivannahalli village, in the records of Bruhat Bengaluru Mahanagara Palike i.e. suit schedule 'A' property. The 1st defendant further represented that apart from the registered indenture of mortgage, the defendant No.2 has also created ROC charge in favor of 8 O.S.No.3799/2023 defendant No.1 and the defendant No.1 has also recorded charge of the secured asset on CERSAI portal.
Details of the unsold apartment units are as follows:
Sl. Wing Unit Floor Land Carpet Salable No. Block No. No. area in area in area in UDS in Sq.ft. Sq.ft.
Sq.ft.
1 1 B GF 354 1056 1471 2 1 1A 1 445 1306 1845 3 1 3 3 519 1568 2156 4 1 3C 3 152 452 629 5 1 3D 3 194 573 805 6 1 3H 3 162 482 674 7 1 3J 3 148 447 615 8 1 5A 5 519 1538 2156 9 1 5G 5 107 322 445 10 1 7A 7 519 1538 2156 11 1 7B 7 435 1304 1807 12 1 7C 7 152 452 629 13 1 7D 7 194 573 805 14 1 7E 7 88 268 367 15 1 7E 7 94 276 389 16 1 7G 7 107 322 445 17 1 7H 7 162 482 674 9 O.S.No.3799/2023 18 1 7J 7 148 447 615 19 1 8B 8 435 1304 1807 20 1 8C 8 152 452 629 21 1 8D 8 194 573 805 22 1 8E 8 88 268 367 23 1 8F 8 94 276 389 24 1 8G 8 107 322 445 25 1 8H 8 162 482 674 26 1 8J 8 148 447 615 27 1 9A 9 519 1538 2156 28 1 9C 9 152 452 629 29 1 9D 9 194 573 805 30 1 9E 9 88 268 367 31 1 9F 9 94 276 389 32 1 9G 9 107 322 445 33 1 9H 9 162 482 674 34 1 9J 9 148 447 615 35 1 10A 10 519 1538 2156 36 2 B GF 482 1418 2000 37 2 C GF 320 951 1328 38 2 E GF 319 942 1323 39 2 1A 1 450 1209 1866 40 2 1C 1 320 951 1328 41 2 1E 1 319 942 1323 42 2 2A 2 517 1527 2146 43 2 2B 2 529 1561 2196 10 O.S.No.3799/2023 44 2 2C 2 399 1194 1658 45 2 2E 2 413 1219 1714 46 2 3A 3 517 1527 2146 47 2 3B 3 529 1561 2196 48 2 4A 4 517 1527 2146 49 2 4C 4 399 1194 1658 50 2 4E 4 413 1219 1714 51 2 5A 5 517 1527 2146 52 2 5C 5 399 1194 1658 53 2 6B 6 529 1561 2196 54 2 6C 6 399 1194 1658 55 2 6E 6 413 1219 1714 56 2 7B 7 529 1561 2196 57 2 7E 7 413 1219 1714 58 2 8A 8 517 1527 2146 59 2 8C 8 399 1194 1658 60 2 8E 8 413 1219 1714 61 2 9B 9 529 1561 2196 62 2 9C 9 399 1194 1658 63 2 9E 9 413 1219 1714 64 2 10A 10 517 1527 2146 65 2 10B 10 413 1219 1714 TOTAL 21110 62473 87620 11 O.S.No.3799/2023 The 1st defendant further represented to the plaintiff that the 2nd defendant had defaulted in the repayment of the loan and it did not pay the EMIs/Installments regularly and therefore their loan account was declared as non-
performing Asset (NPA). Consequently, the 1 st defendant bearing the secured creditor acted legally by initiating proceedings under the provision of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) against the defendant Nos.2 and 3, wherein demand Notice under Section 13(2) of the said Act was issued. Thereafter, after the expiry of the statutory 60 days time as per the demand Notice for payment deposition by the defendant Nos.2 and 3, which they did not pay, the physical possession has been taken over by the authorized officer of the 1 st defendant on 23.06.2022 as per the order dated: 16.06.2022 passed by the 30 th Additional Chief Metropolitan Magistrate, Bengaluru in Crl.Misc.No.2627/2022, which was also published in two 12 O.S.No.3799/2023 leading daily newspaper in English and vernacular language. In continuation of the proceedings under said Act, the mortgage properties was put on sale via public auction and accordingly sale Notice carrying the reserve price was issued to the defendant Nos.2 and 3 and also published in two newspapers. In furtherance with the newspaper publications regarding the auction sale and in furtherance with the representations of 1 st defendant, the plaintiff being engaged in the business of real estate, participated in the public auction held by the 1 st defendant. Consequently, to the public auction, the plaintiff firm was declared as successful purchaser of the mortgage properties and accordingly, after the receipt of the complete total sale price i.e. Rs.13,77,00,000/-, the authorized officer of the 1st defendant sold the mortgage properties invoking the provisions of Section 13 R/w Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002 and on behalf of 1 st defendant, the authorized officer had issued the sale certificate dated: 27.09.2022, 13 O.S.No.3799/2023 in accordance with appendix V under Rule 9(6) of the SARFAESI Act, 2002 in favour of the plaintiff and subsequently handed over the keys and physical possession of the mortgage properties along with the original title documents. The sale certificate issued by the 1st defendant in favour of the plaintiff had been duly registered before Senior Sub-Registrar, Byatarayanapura, Bengaluru vide document No.BYP-1-06878/2022-23, stored in CD.No.BYPD-1218. By virtue of the sale certificate, the plaintiff acquired the following immovable properties which includes:
(i) Unsold units of the project (residential project titled 'Manyam Sky Park' being developed by the 2nd defendant consisting of 2 towers developing BF+GF+10 upper floors) i.e. mortgaged properties.
(ii) The development rights and all other rights and entitlements and interest of defendant Nos.2 and 3 under the project documents;14 O.S.No.3799/2023
(iii) The undivided right, title, interest and share of defendant Nos.2 and 3 in the project;
(iv) All right, title and interest of defendant Nos.2 and 3 in/over the project/project land, under the project documents and all present and future transferrable development rights, utilized/unutilized floors space index (including any additional FSI/FAR which the defendant Nos.2 and 3 and or any person on its behalf may be entitled to in respect of the project land), and all other rights and benefits accrued or accruing thereto and also together with all rights of defendant No.2 under any other agreements, arrangements, contracts, documents, records, deeds, papers, writings, instruments by whatsoever name called, executed or which may be hereafter executed by defendant No.2/any other person in favour of defendant No.2, including the project documents;
(v) Any profits and accretions accruing to (i) to (iv) above.15 O.S.No.3799/2023
The plaintiff also acquired the following movable properties which includes:
(i) Project receivables from the project i.e. residential project named as 'Manyam Sky Park' being developed by the defendant No.2.
(ii) All right, title, interest, benefit, claims and demands of defendant No.2 in, to, or in respect of, the Escrow account and all amounts, lying to the credit thereof from time to time;
(iii) All monies received/to be received by or accruing to defendant No.2 from the sale/transfer/other disposition of unsold units;
(iv) All and singular, 2nd defendant' tangible and intangible assets (both present and future) including, without limitation, all actionable claims, inventory, insurance policies, all movable plant and machinery (whether attached or otherwise), raw materials, all items of equipment, building materials such as but no limited to steel and wooden materials, packing materials, electrical cables, electrical instruments, plumbing materials, construction 16 O.S.No.3799/2023 materials, finished and semi-finished goods, consumable stores, spares, tools, accessories, software, patents, copyrights including any other intellectual property such as confidential information, control systems, office furniture, typewriters, computers, computer systems, drilling machines, dyes, ropes, and all other fixed assets other than land and buildings, both present and future, in respect of the project, whether installed or not and whether lying loose or in cases of which are lying or are stored in or to be stored in or to be brought into or upon 2nd defendant's premises, warehouses, stockyards and godowns or those of 2nd defendant's agents, associates or representatives or at various work sites or at any place or places wherever else situated or wherever else the same may be, whether now belonging to or that may at any time during the continuance of the agreement belong to 2nd defendant and/or that may at present or hereafter be held by any patty anywhere to the order or disposition or in the course of transit or on high seas or on order, delivery howsoever and all replacements thereof and 17 O.S.No.3799/2023 additions thereof whether by way of substitution, addition, replacement, conversion, realization or otherwise howsoever together with benefits, rights and incidental attached thereto which are now or shall at anytime hereafter be owned by 2nd defendant and all estate, right, title, interest, property, claims and demands whatsoever of 2 nd defendant unto and upon the same;
(v) Any profit and accretions accruing to (i) to (iv) above.
Further, ever since from transfer of mortgaged properties in favour of the plaintiff in the above manner, the plaintiff is in peaceful possession and enjoyment of the same including the aforesaid immovable and movable properties by exercising all its rights, title and interest over the mortgaged properties and in relation thereto. At the time of auction sale, the project had come to stand still, with only structure thereon and since the auction sale is made on 'as is where is', 'as is what is' and 'whatever there is' basis, the plaintiff is making 18 O.S.No.3799/2023 efforts to complete the project. Further, some third parties challenged legality and correctness of the aforesaid public auction sale and confirmation thereof before the Debt Recovery Tribunal, Bengaluru. On 06.03.2023, the plaintiff obtained the encumbrance certificate by virtue of which the plaintiff learnt that 2 nd defendant exercising powers granted by the landlords/defendant No.5 and 6, by way of General Power of Attorney dated: 10.06.2017 had entered into registered agreement of sale with respect to the mortgaged properties i.e. residential apartment/flat bearing No.7D, Tower-1, on seventh floor in the multistoried residential apartment building known as 'Manyam Sky Park', measuring super built up area admeasuring 805 square feet, along with one covered car parking space in the basement and 193.95 square feet of undivided share in the land of suit schedule 'A' property, which is the suit schedule 'B' property to 4 th defendant by way of registered agreement of sale dated: 27.02.2020, 19 O.S.No.3799/2023 vide document No.BYΡ-1-11282/2019-20, stored in CD.No.BYPD980, in the office of the Sub-Registrar, Gandhinagar (Byatarayanapura), Bengaluru. On perusal of the registered indenture of mortgage without possession dated: 03.04.2018, it is evident from clause 5.1, the 2nd defendant being the mortgagor to the 1st defendant had specifically and categorically agreed, stated, confirmed and declared that the mortgaged properties which was offered as security is a continuing security and shall remain in full force and effect until the entire mortgage debt had been fulfilled/repaid or otherwise made good. As per clause 6.1, the 2 nd defendant had also agreed, undertaken, promised and declared that so long as the mortgage debt or any part thereof remains unpaid, the 2nd defendant shall not deal with or dispose of any interest in any of the mortgaged properties or any part thereof in a manner prejudicial to the interests of the 1 st defendant, except with prior permission in writing from the 1st defendant and shall 20 O.S.No.3799/2023 hold the same unto and to the use absolutely for the benefit of the 1st defendant and subject to the powers and provisions declared and contained and concerning the same. It is made clear that the words 'dispose of any interest' shall include (i) creation of any encumbrance in respect of the mortgaged properties (or any part(s) thereof) whether ranking in priority or equally or subservient or having pari passu status with/to the security or (ii) selling, giving on lease hold basis or tenancy or license or otherwise transferring any of the mortgaged properties or any part(s) thereof comprised therein. As per clause 6.2, the 2 nd defendant agreed that it shall be is entitled to sell/transfer/lease/license the mortgaged properties or any part thereof, provided that the following conditions/requirements are complied with:
(i) Any agreement of sale/sale deed/lease deed/leave and license agreement or any other writing agreement, deed or documentation executed by the 2nd defendant 21 O.S.No.3799/2023 with the purchasers/lessees/licensees of the mortgaged properties or any part thereof shall contain provisions to stipulate that the consideration paid/to be paid by such purchasers/lesses/licenses shall be directly credited into/paid to the credit of the Escrow Account (s);
(ii) The proceeds of such sale/transfer/leave and license/lease are/shall be credited directly into the Escrow Account(s); and
(iii) The 2nd defendant shall have obtained the written consent of the 1st defendant, prior to entering into such sale/sale deed/lease deed/leave and license or any other writing, agreement, deed or documentation in relation to the mortgaged properties or any part thereof in the form of a 'No objection certificate'.
The plaintiff further contends that the 2nd defendant is to bound to deal with the mortgaged properties only in terms of the indenture of mortgage without possession 22 O.S.No.3799/2023 dated: 03.04.2018, the agreement of sale entered into by the 2nd defendant and the 4 th defendant in respect of suit schedule 'B' property is in violation of the terms of the aforesaid indenture of mortgage without possession dated: 03.04.2018, suffice to say that the contract is in contravention to clause 5 and 6, the 2 nd defendant is not authorized to sell the mortgaged properties or part thereof without prior written consent from the 1 st defendant in the form of 'No objection certificate'. The 2 nd defendant had categorically admitted the terms of the mortgage and sale in contravention to the same is void abinitio, invalid, non-est/illegal and not binding on the plaintiff. The plaintiff further contends that the 4 th defendant was not diligent while making transaction with the 2nd defendant. The 4th defendant has not exercised minimum efforts to find out as to whether the suit schedule 'B' property is free from all encumbrances or not. Simultaneously, it appears the 2nd defendant has suppressed the charge created in favour of 1st defendant 23 O.S.No.3799/2023 in respect of the suit schedule 'B' property and has failed to discharge his liabilities as envisage under Section 55 of the Transfer of Property Act before it could make transaction of sale of suit schedule 'B' property. Further, the 1st defendant has effected the transfer of the mortgage properties, which is nothing but the secured asset obtained from its secured creditor i.e. 2 nd defendant and the transfer in favour of the plaintiff in accordance with the law by way of auction sale, would entitled the plaintiff all rights in or in relation to, the transferred secured asset as if the transfer had been made by the owner of the secured asset. It will not be in a position to alienate/dispose the suit schedule 'B' property in favour of its prospective purchasers, until and unless, the agreement of sale which is being wrongly entered into by the 2nd defendant in favour of the 4th defendant is set aside or property is set free from all encumbrances. There is every chance, wherein the 2 nd defendant might conclude the contract with 4th defendant 24 O.S.No.3799/2023 in completing sale transaction. The cause of action for the suit is arisen on 06.03.2023. Hence, the plaintiff prays to decree the suit as prayed.
3. In pursuance of the suit summons, the defendant Nos.1 to 6 have appeared through their learned Counsels. The defendant No.1, defendant No.2 and 3, defendant No.4, defendant No.5 and 6 have filed written statement separately.
4. The defendant No.1 has filed written statement and contends that the defendant No.2 had approached it seeking the sanction of mortgage loan facilities against suit schedule properties along with various other apartments. They sanctioned a loan of Rs.16,00,00,000/- and in terms of loan offer letter dated: 28.03.2018 and based on the request from time to time a sum of Rs.11,08,50,000/- was disbursed to defendant No.2. The defendant No.2 have executed escrow agreement and indenture of mortgage without possession in favor of 25 O.S.No.3799/2023 defendant No.1 in order to secure the payments of loan due amounts and said schedule property was secured asset by way of mortgage by indenture of mortgage. As the defendant No.2 had defaulted in loan repayment the defendant No.1 issued demand Notice dated: 13.12.2021 under Section 13(2) of the said Act. Thereafter, defendant No.2 has not complied the demand Notice even after expiry of 60 days. The defendant No.1 has taken possession of schedule property and has issued possession Notice U/Sec.13(4) and even the suit schedule properties along with other properties are sold under auction in favor of the plaintiff under the provisions of SARFEASI Act. The plaintiff has not claimed any relief in the suit as against the defendant No.1. Further, if entire documents are looked into it is clear that defendant Nos.2, 3 and 4 have played fraud on defendant No.1 and have transacted over already mortgaged property, hence the prayer of the plaintiff needs to be granted and the 26 O.S.No.3799/2023 defendant No.1 supports the case of plaintiff. Hence, the defendant No.1 prays to decree the suit.
5. The defendant Nos.2 and 3 have filed written statement and denied the plaint averments in toto. The defendant Nos.2 and 3 contend that the present suit is not maintainable either in law or on facts as the plaintiff has suppressed the material facts and he has not approached this Court with honest consciousness. There is a collusion between defendant No.1 and plaintiff partnership firm Abishek C, who is one of the partner of plaintiff firm M/s.Sohan Reality, is none other than ex- employee of defendant No.1 company and he was visiting the office of defendant Nos.2 and 3, collecting documents, Bank statements and he was sending E-mails and making official correspondence on behalf of defendant No.1. Prior to auction of the property of defendant Nos.2 and 3 illegally by the defendant No.1 to the plaintiff firm, the defendant No.1 company asked it's 27 O.S.No.3799/2023 employee Abishek to resign from defendant No.1 company and float a new partnership firm along with one Vinay Kumar D. in the name of M/s. Sohan Reality and illegally sold these defendant's property to them. This clearly shows that the plaintiff partnership firm and defendant No.1 company are hand in gloves with each other and they have played a fraud on the defendant Nos.2 and 3 and purchased their property for a throw away price of Rs.13.77 crores, though the actual market value of the property auctioned is more than Rs.40 crores. The alleged purchase by the plaintiff firm is illegal and the same do not sustain in the eyes of law. Even as per the auction sale, the properties are auctioned 'as is where is', 'as is what is' and 'whatever there is' basis. Therefore, whatever the rights created by the defendant No.2 in favour of defendant No.4 and other 3 rd parties are saved and therefore the plaintiff is not entitled for questioning the sale agreement dated: 27.02.2020 executed by 2nd defendant in favour of 4th defendant and 28 O.S.No.3799/2023 so also the other sale agreements executed by him in favour of others. The defendant Nos.2 and 3 further contend that though the 1st defendant company had sanctioned loan of Rs.16,00,00,000/- to the 2 nd defendant for the construction of residential project i.e. 'Manyam Sky Park', but it has disbursed only 10.20 crores delayedly. It is because of under finance and non- disbursing the loan amount on time by the defendant No.1m the project could not be completed. They have paid a sum of Rs.4,42,53,171/- towards repayment of the loan to the 1st defendant. The defendant Nos.1 and 2 have put up construction of residential project i.e. 'Manyam Sky Park' consisting of two towers i.e. basement floor + Ground floor + 10 Upper floors having an aggregate saleable area of about 1,72,261 sq.feet (127 units) out of which 2nd defendant's share is 94,913 sq. feet (73 units). The defendant Nos.2 and 3 deny that they have executed the registered mortgage without possession dated: 03.04.2018 in favour of the 1 st 29 O.S.No.3799/2023 defendant creating mortgage of development rights pertaining to 65 unsold apartments units constructed over property measuring to an extent of 3,855 sq.mtrs comprised in Western portion of the land bearing Sy.No.18/1 and 19 situated at Shivanahalli village, Yalahanka Hobli, Bengaluru North Taluk and the 2 nd defendant has also created ROC charge in favour of the defendant No.1. The defendant Nos.2 and 3 further deny that the 2nd defendant has committed a default in repayment of the loan to the 1st defendant, and 1st defendant had initiated proceedings under SURFAESI Act and in pursuance of the said proceedings, the authorized officer the 1st defendant has taken the physical possession on 23.06.2022 by virtue of order dated:
16.06.2022 and the sale Notice showing the reserve price was issued to the defendant No.2 and 3 and also published in two news papers. The defendant Nos.2 and 3 further contend that the plaintiff and defendant No.1 are in collusion with each other and sold the property of them 30 O.S.No.3799/2023 to the plaintiff firm, represented by Abhishek, who is none other than the ex-employee of defendant No.1 company for throw away price of Rs.13,77,00,000/-, though the market value of the said property is more than 40 crores and issuing of the sale certificate dated: 27.09.2022 to the plaintiff firm is concerned, the same is in collusion with each other. The defendant Nos.2 and 3 further deny that the defendant No.1 has handed over the keys and physical possession of the mortgage properties along with original title deeds to the plaintiff. The defendant Nos.2 and 3 further deny that the plaintiff had acquired unsold units of the project 'Manyam Sky Park' consisting of two towers BF + GF + 10 upper floors along with developmental rights and interest of defendant No.2 and 3 in the project, undivided right, title interest share of the defendant No.2 and 3 in the project, all right, title and interest of the defendant No.2 and 3 over the project, future transferable rights, developmental rights, all other rights of defendant No.2 under any other agreements, 31 O.S.No.3799/2023 arrangements, contracts, and documents executed by defendant No.2 including the project documents, any profits and accretions accruing to him and the plaintiff has acquired movable properties includes project receivables, right, title, interest, benefit, claims and demands of defendant No.2 in respect of escrow account and all amounts, lying to credit thereof from time to time, all moneys received / to be received by or accruing to defendant No.2 from the sale/transfer/ other disposition of unsold units, all tangible and intangible assets of the 2nd defendant (both present and future), all actionable claims inventory insurance, all movable plant and machinery, raw materials, equipments, building materials, electrical instruments, plumbing materials, construction materials, consumables stores, spares, tools, accessories, software patents, copy rights, office, furniture and all other items in the office, warehouses, stockyards, godowns and all the right, title, interest, property plans and demands of 2 nd defendant and any 32 O.S.No.3799/2023 profit and accretions accruing to him. The defendant Nos.2 and 3 further deny that the mortgage properties are in peaceful possession and enjoyment of the plaintiff including the movable and immovable properties by exercising all its rights, title and interest over the mortgage properties and as per the auction sale, the properties are auctioned 'as is where is', 'as is what is' and 'whatever there is' basis and contend that this shows whatever the rights created by the defendant No.2 in favour of defendant No.4 and other 3 rd parties are saved and the plaintiff cannot question the same and therefore, he is not entitled for questioning the sale agreement dated: 27.02.2020 executed by the 2 nd defendant in favour of 4th defendant and also other sale agreements executed by the defendant No.2 to others. The defendant Nos.2 and 3 further deny that on 06.03.2023, the plaintiff had obtained the encumbrance certificate and then he came to know about the sale agreement dated:
27.02.2020 executed by 2 nd defendant in favour of 4th 33 O.S.No.3799/2023 defendant and contend that the plaintiff firm represented by a partner Abhishek, who is none other than the ex-employee of defendant No.1 company and he is fully aware about the sale agreement dated: 27.02.2020 executed by 2nd defendant in favour of the defendant No.4, the encumbrance certificate clearly shows the said transaction and he cannot plead that only 06.03.2023, he came to know about sale agreement dated: 27.02.2020 executed by 2nd defendant in favour of defendant No.4 in respect of suit schedule 'B' property. The defendant Nos.2 and 3 further deny that the indenture of mortgage without possession dated: 03.04.2018 shows that 2 nd defendant being the mortgagor to the 1st defendant has specifically agreed that mortgaged properties are offered as a continued security and shall remain in force till entire mortgage debt has been repaid and as per the clause 6.1, the 2nd defendant had agreed and undertaken to not to dispose of any of the interest in mortgaged properties without the prior permission in writing from 34 O.S.No.3799/2023 the 1st defendant. The defendant Nos.2 and 3 further deny that they have to directly credit all the sale proceeds amount to the escrow account and the 2 nd defendant is bound to deal with mortgage properties subject to terms of the indenture of mortgage dated: 03.04.2018, the execution of the sale agreement dated: 27.02.2020 executed by the 2nd defendant in favour of the 4th defendant in respect of the schedule 'B' property is in violation of clause 5 and 6 and the 2 nd defendant is not authorized to sell the said property without the prior written consent from the 1st defendant and the 2nd defendant has agreed that any sale in contravention of mortgage deed is illegal. The defendant Nos.2 and 3 further deny that the 1 st defendant has effected the transfer of the mortgage properties in favour of the plaintiff in accordance with law by way of auction sale and the plaintiff is entitled for all the rights in relation to the transferred secured assets. The defendant No.2 and 3 contend that the defendant No.4 is a bonafide 35 O.S.No.3799/2023 prospective purchaser and he has entered into sale agreement by paying the portion of sale consideration and the same is valid in law and therefore question of setting aside the said sale agreement do not arise. There is no cause of action to file this suit. Hence, the defendant Nos.2 and 3 pray to dismiss the suit.
6. The defendant No.4 has filed written statement and denied the plaint averments in toto. The defendant No.4 contends that the present suit is not maintainable either in law or on facts. The plaintiff admits that sale certificate was registered on 27.09.2022 and the plaintiff having invested crores ought to have verified the documents and especially the EC before registration, the sale agreement in favour of the defendant No.4 is on 27.02.2020, therefore the sale certificate registered by the plaintiff on 27.09.2022 was with specific knowledge of the sale agreement dated: 27.02.2020. The plaintiff thus was aware of the sale consideration, the advance 36 O.S.No.3799/2023 paid by the defendant No.4 and the charge created on the schedule property in favour of the defendant No.4 and the entire plaint is full of falsehood, absurd, hence illegal, unsustainable and non-maintainable. The plaintiff ought to had brought the facts of the agreement dated:
27.02.2020 on or before registration of sale certificate, settled/deducted the advance amount, instead having registered the sale certificate, it is legally presumed that the plaintiff was aware of the sale agreement dated:
27.02.2020 in favour of the defendant No.4 and the defendant No.4 by virtue of the registered document continues to have the rights as contemplated in the agreement and the defendant No.4 is entitled to get the sale deed/transaction completed in terms of the agreement. The defendant No.4 having paid an advance and is also liable to pay the balance of sale consideration, the plaintiff would not be put to any loss, injury or hardship and on this ground also the suit of the plaintiff is not entitled for any relief much less the relief of 37 O.S.No.3799/2023 declaration and injunction. The relief of injunction is absurd is as much the agreement is registered and without possession and the defendant No.4 may have to pay the balance of sale consideration to the plaintiff. The defendant No.4 further contends that the plaintiff being aware of the agreement at the time of registration of sale certificate cannot value the suit for Rs.1000/- since the agreement is for a particular value and registered, hence the Court fee paid on the suit is incorrect, illegal and the suit is liable to be rejected for non-payment of appropriate/proper Court fee. The sale agreement dated: 27.02.2020 in favour of the defendant No.4, the sale certificate is registered in favour of the plaintiff on 27.09.2022, the plaintiff contending that they came to know of the sale agreement vide E.C. on 06.08.2023 thus looks illegal, absurd, hence there is no cause of action. It is basic law and requirement that the plaintiff who was the purchaser of the flats (including schedule property) did due diligence and purchased the flats (including 38 O.S.No.3799/2023 schedule property) and now contending that the E.C. was obtained on 06.03.2023 is unbelievable and thus the plaintiff is not entitled for any relief including the discretionary relief of injunction and the suit is liable to be rejected for want of cause of action. The defendant No.4 further contends that in a general sale transaction the vendor/seller declares that he/she/they are the absolute owners and further indemnifies the purchaser about the title. However the purchaser should be diligent, extra cautious in knowing/investigating the title, since the property is purchased in auction/through Bank process and there is no vendor/seller and no sale deed is executed, but only a sale certificate is issued, none of these acts is forthcoming is the averments of the plaint.
Therefore the act of the plaintiff is not bonafide and susceptible. The plaintiff was not diligent while making transaction with the defendant No.1. The plaintiff has not exercised minimum efforts to find out as to whether the suit schedule 'B' property is free from all encumbrance or 39 O.S.No.3799/2023 not. Hence, the defendant No.4 prays to dismiss the suit with exemplary costs.
7. The defendant Nos.5 and 6 have filed written statement and denied the plaint averments in toto. The defendant Nos.5 and 6 contend that the present suit filed by the plaintiff is not maintainable. The defendant Nos.5 and 6 further contend that they are joint owner of the residential property measuring 22 -guntas out of 1.05 acres in Sy.No.18/1 and measuring 18- guntas in Sy.No.19, both properties are situated at Shivannahalli village, Yelahanka Hobli, Bengaluru North Taluk (converted from agricultural to non-agricultural residential purpose vide official memorandum bearing No.ALN (NAY).SR.180/2008-09 dated: 03.06.2009 issued by the Special Deputy Commissioner, Bengaluru District), now coming under the administrative jurisdiction of Bruhat Bangalore Mahanagar Palike, Bengaluru, New Municipal No.876/418/1, 18/2 and 19. The defendant 40 O.S.No.3799/2023 Nos.5 and 6 entered into a joint development agreement dated: 10.05.2017 with defendant No.2, which is registered as document bearing No.BYP-1-00620-2017- 18, Book I, stored in CD.No.BYPD243 in the office of Sub- registrar Byatarayanapura, Bengaluru for the purpose of development of suit schedule 'A' property by constructing residential apartments therein. In furtherance of the joint development agreement, the defendant Nos.5 and 6 have also executed a General Power of Attorney dated:
10.05.2017 in favour of the 2nd defendant, which got registered as document bearing No.BYP-4-00038-2017-
18, in Book IV, stored in CD.No.BYPD243, in the office of the Sub-registrar, Byatarayanapura, Bengaluru, authorizing the 2nd defendant to develop the land, obtain licenses, permission etc. and to convey the developers' share in the apartments so constructed on the suit schedule 'A' property among other powers. After execution of the joint development agreement and power of attorney, the defendant Nos.5 and 6 and the defendant 41 O.S.No.3799/2023 No.2 entered into sharing agreement dated: 26.07.2017 setting out the owner's i.e. defendant Nos.5 and 6 share and developers' i.e. defendant No.2 share in the constructed area of apartments along with unit numbers, super built-up area, and terrace area. Under joint development agreement and the sharing agreement the defendant Nos.5 and 6 and the defendant No.2 agreed to take the 45% (54 flats) and 55% (73 flats) share respectively, in the total saleable super built up in the apartment buildings to be constructed on the suit schedule 'A' property along with proportionate car parking space and undivided share. The apartments in respect of which the mortgage has been created by the defendant No.2 in favour of defendant No.1, do not fall within the share of the defendant Nos.5 and 6 and as such, no relief can be claimed as against them. The clause 7 of the joint development agreement states that the developer/defendant No.2 can secure loan/credit facilities from the financial institutions for development of 42 O.S.No.3799/2023 suit schedule 'A' property, however such credit facility will not bind or create any charge over the owners share of 45%. The said joint development agreement in clause
- 27.6 it is clearly stated that the defendant Nos.5 and 6 who are the owners are not responsible for any claims of the defendant No.2. The extract of the said clause is as follows:
27.6 it is specifically agreed that the loan borrowed and financial facilities received by the developer against the security of their 55% share of the constructed area and proportionate UDS of land shall be repaid together with the interest and other claims by the developer alone out of their own funds and the owners are not responsible and not liable for the same in any manner whatsoever.
The defendant Nos.5 and 6 deny that the mortgage deed dated: 03.04.2018, ROC charge certificate, CERSAI certificate and Crl.Misc.No.2627/2022 the defendant Nos.5 and 6 are not a party to it or any of such proceedings and they are not aware of any such 43 O.S.No.3799/2023 proceedings. The defendant No.5 and 6 contend that as per the terms of the joint development agreement, the 2nd defendant would have become entitled to its 55% of the undivided share only with the constructed area only upon delivery of the 45% of share of apartments of defendant Nos.5 and 6. As such the right of the 2 nd defendant not having been crystallized, with delivery of their 45% of share, the charge created by the 2nd defendant in favour of 1st efendant is without any right and all further transactions in furtherance thereof are null and not binding on the defendant Nos.5 and 6. Hence, the defendant Nos.5 and 6 prays to dismiss the suit with exemplary costs.
8. On the basis of above pleadings, following Issues have been framed by my learned Predecessor in Office.
ISSUES
1. Whether plaintiff proves that virtue of sale certificate registered on 27.09.2022 he has become the absolute owner in possession of suit 'B' schedule property? 44 O.S.No.3799/2023
2. Whether plaintiff proves that registered agreement of sale dated: 27.02.2020 is not binding upon the plaintiff?
3. Whether plaintiff is entitled for the relief of declaration and perpetual injunction as prayed?
4. What order or decree?
9. In support of the case, the authorized person of the plaintiff Company by name Sri.Abhishek C. is examined as P.W.1 and got marked 10 documents at Ex.P.1 to Ex.P.10 and closed its evidence. In rebuttal authorized officer/signatory of the defendant No.1 company by name Sri.Yadhu Krishnan Ramkrishnan is examined as D.W.1 and the authorized signatory of the defendant No.2 Company by name Sri.Sumanth M. is examined as D.W.2 and got marked Ex.D.1 and D.2 and closed their side evidence.
10. Heard the arguments of both learned Counsels of the both parties at length and perused the materials on record.
45 O.S.No.3799/2023
11. My findings on the above Issues are as under:
Issue No.1 : Does not survive for consideration Issue No.2 : In the Affirmative Issue No.3 : Partly in the Affirmative Issue No.4 : As per the final order for the following:
REASONS
12. ISSUES NO.1 TO 3: These Issues are interrelated to each other and involve common appreciation of facts and evidence. Hence, to avoid repetition of facts, I have taken these Issues together for common consideration.
13. The plaintiff has asserted that ever since from transfer of mortgaged properties, it is in peaceful possession and enjoyment of the same including the aforesaid immovable and movable properties by exercising all its rights, title and interest over the mortgaged properties and in relation thereto. The 2 nd 46 O.S.No.3799/2023 defendant had categorically admitted the terms of the mortgage and sale in contravention to the same is void abinitio, invalid, non-est/illegal and not binding on the plaintiff. There is every chance, wherein the 2 nd defendant might conclude the contract with 4th defendant in completing sale transaction.
14. The defendant No.1 has contended in its written statements that, if entire documents are looked into its clear that defendant Nos.2, 3 and 4 have played fraud on defendant No.1 and have transacted over already mortgaged properties.
15. The defendant No.2 and 3 have contended in their written statements that, there is a collusion between defendant No.1 and the plaintiff partnership firm Abishek C, who is one of the partner of plaintiff firm M/s.Sohan Reality, is none other than ex-employee of defendant No.1 company. The alleged purchase by the plaintiff firm is illegal and the same do not sustain in the 47 O.S.No.3799/2023 eyes of law. The defendant No.4 is a bonafide prospective purchaser and he has entered into sale agreement by paying the portion of sale consideration and the same is valid in law and therefore question of setting aside the said sale agreement do not arise.
16. The defendant No.4 has contended in his written statements that, he having paid an advance and is also liable to pay the balance of sale consideration, the plaintiff would not be put to any loss, injury or hardship and on this ground also the suit of the plaintiff is not entitled for any relief much less the relief of declaration and injunction.
17. The defendant No.5 and 6 have contended in their written statements that, they are joint owner of the residential property measuring 22 -guntas out of 1.05 acres in Sy.No.18/1 and measuring 18- guntas in Sy.No.19, both properties are situated at Shivannahalli village, Yelahanka Hobli, Bengaluru North Taluk 48 O.S.No.3799/2023 (Converted from agricultural to non-agricultural residential purpose vide official memorandum bearing No.ALN (NAY).SR.180/2008-09 dated: 03.06.2009 issued by the Special Deputy Commissioner, Bengaluru District), now coming under the administrative jurisdiction of Bruhat Bangalore Mahanagar Palike, Bengaluru, New Municipal No.876/418/1, 18/2 and 19. The apartments in respect of which the mortgage has been created by the defendant No.2 in favour of defendant No.1, do not fall within the share of the defendant Nos.5 and 6 and as such, no relief can be claimed as against them.
18. In order to substantiate the contention, the authorized person of the plaintiff company by name Sri.Abhishek C. has filed an affidavit as examination-in- chief and he is examined as P.W.1. The P.W.1 has reiterated the contents of plaint. The authorized officer/signatory of the defendant No.1 company by name Sri.Yadhu Krishnan Ramkrishnan has filed an affidavit as 49 O.S.No.3799/2023 examination-in-chief and he is examined as D.W.1 and the authorized signatory of the defendant No.2 company by name Sri.Sumanth M. has filed an affidavit as examination-in-chief and he is examined as D.W.2. The D.W.1 and D.W.2 have reiterated the contents of their written statements.
19. The plaintiff has relied on documentary evidence at Ex.P.1 to Ex.P.10.
20. The defendant No.2 has relied on documentary evidence at Ex.D.1 and Ex.D.2.
21. The plaintiff has relied on Ex.P.1 - Certified copy of Indenture of mortgage without possession dated:
03.04.2018, Ex.P.2 - Certificate of registration of charge, Ex.P.3 and Ex.P.4 - Copies of Registration of security interest acknowledgment reports issued by CERSAI, Ex.P.5 - Certified copy of order in Crl.Misc.No.2627/2022 dated: 16.06.2022, Ex.P.6 - Certified copy of sale certificate dated: 27.09.2022, Ex.P.7 - Encumbrance 50 O.S.No.3799/2023 certificate, Ex.P.8 - Certified copy of sale agreement dated: 27.02.2020, Ex.P.9 - Certificate under Section 65-B of India Evidence Act by way of affidavit and Ex.P.10-
Registration certificate.
22. The defendant No.2 has relied on Ex.D.1 and Ex.D.2 - True copies of authorization letter.
23. So far as documentary evidence is concerned that on perusal of Ex.P.1 which shows that, Indenture of mortgage without possession is executed on 03.04.2018 by the defendant No.2 and 3 in favour of defendant No.1 in respect of suit schedule 'A' property by creating mortgage development rights, comprised in Western portion of survey Nos.18/1 and 19 of Shivannahalli village, situated at Shivannahalli village, Yelahanka Hobli, Bengaluru North Taluk. On perusal of Ex.P.2 which shows that, defendant No.2 is registered company. On perusal of Ex.P.3 and 4 which shows that, the defendant No.2 has 51 O.S.No.3799/2023 recorded the charge of the secured asset on CERSAI portal. On perusal of Ex.P.5 which shows that, the defendant No.1 has filed Criminal Misc.No.2627/2022 before XXX Addl. Chief Metropolitan Magistrate Bengaluru against the defendant No.2 and 3 and others which is filed U/Sec.14 of SARFAESI Act seeking to take physical possession of secured asset property, which is allowed on 16.06.2022 and petitioner is entitled for take possession of suit schedule 'A' property in respect of recovery and satisfaction of loan due from respondents. On perusal of Ex.P.6 which shows that, sale certificate is issued by the defendant No.1 in favour of plaintiff under Rule 9(6) of the Security Interest (Enforcement) Rules, 2002 Read with the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in respect of mortgaged properties. On perusal of Ex.P.8 which shows that, the defendant No.5 and 6 represented as General Power of Attorney holder of the defendant No.2 and defendant No.2 represented by its Director 52 O.S.No.3799/2023 Sri.M.Vijay Kumar as builder have executed agreement for sale, on 27.02.2020 in favour of defendant No.4 in respect of mortgaged properties. On perusal of Ex.P.10 which shows that the plaintiff firm is a registered partnership firm.
24. The defendant No.2 have relied the documents at Ex.D.1 and Ex.D.2 -True copies of authorization letters.
25. So far as oral evidence of both parties is concerned to lis that the authorized person of the plaintiff firm by name Sri.Abhishek C. is examined as P.W.1 and P.W.1 has reiterated the contents of plaint. The P.W.1 has stated in cross examination that: "4 ನೇ ಪ್ರತಿವಾದಿಗೆ ಕರಾರಿನ ಅಡಿಯಲ್ಲಿ ಸ್ವಾಧೀನ ಕೊಟ್ಟಿರಲಿಲ್ಲ ಎಂದರೆ ಸರಿ." The authorized officer/signatory of the defendant No.1 company viz. Sri.Yadhu Krishnan Ramkrishnan is examined as D.W.1 and D.W.1 has reiterated averments of written statement. The D.W.1 has admitted in his cross examination that: 53 O.S.No.3799/2023
"ವಾದಿಯ ಕಂಪನಿ ನೋಂದಾಯಿತ ಪಾಲುದಾರಿಕೆ ಸಂಸ್ಥೆ ಎಂದರೆ ಸರಿ." The authorized signatory of the defendant No.2 company by name Sri.Sumanth M is examined as D.W.2 and D.W.2 has reiterated averments of written statement. The D.W.2 has admitted in cross examination that: "ನಮ್ಮ ಸಂಸ್ಥೆ 1 ನೇ ಪ್ರತಿವಾದಿ ಕಡೆಯಿಂದ 16 ಕೋಟಿ ಸಾಲವನ್ನು ಪಡೆದುಕೊಂಡಿದೆ ಅಂದರೆ ಸಾಕ್ಷಿ ಮಂಜೂರಾಗಿದೆ ಎಂದು ಹೇಳುತ್ತಾರೆ. 16 ಕೋಟಿಯಲ್ಲಿ 10 ಕೋಟಿ 24 ಲಕ್ಷ ನಮ್ಮ ಬಳಿ ಬಂದಿದೆ. 2 ಮತ್ತು 3 ನೇ ಪ್ರತಿವಾದಿಯವರು ದಿಃ 03.04.2018 ರಂದು ಒಂದು ಅಡಮಾನ ಪತ್ರವನ್ನು 1 ನೇ ಪ್ರತಿವಾದಿಗೆ ಮಾಡಿಕೊಟ್ಟಿದ್ದಾರೆ ಅಂದರೆ ಸರಿ. ನಿ.ಪಿ.1 ಅಡಮಾನ ಪತ್ರ ಅಂದರೆ ಸರಿ. ನಿ.ಪಿ.1 ರ ಪ್ರಕಾರ 65 ಅಪಾರ್ಟ್ ಮೆಂಟ್ ಗಳನ್ನು ಅಡಮಾನ ಇಟ್ಟಿದ್ದೆವು ಅಂದರೆ ಸರಿ. ನಿ.ಪಿ.1 ರಲ್ಲಿ ಅದರ ಬಗ್ಗೆ ನಮೂದು ಇದೆ ಅಂದರೆ ಸರಿ. ನಿ.ಪಿ.1 ರ ಪ್ರಕಾರ ನಾವು ನಡೆದುಕೊಳ್ಳ ಬೇಕು ಅಂದರೆ ಸರಿ. ಇದರ ಸಲುವಾಗಿ ಯಾವುದೇ ತರಹದ ವಿವಾದ ಇಲ್ಲ ಅಂದರೆ ಸರಿ. ನಿ.ಪಿ.1 ರ ಜೊತೆಗೆ ನಮ್ಮ ಕಂಪನಿ ನಿ.ಪಿ.3 ಮತ್ತು ನಿ.ಪಿ.4 ರ ಪ್ರಕಾರ CERSAI ನಲ್ಲಿ ನಮೂದಿಸಿರುತ್ತೇವೆ ಅಂದರೆ ಸರಿ. ನಮ್ಮ ಕಂಪನಿ ಸಾಲವನ್ನು ತೀರಿಸಲಾಗದೇ SARFAESI ಪ್ರಕಾರ ಪ್ರತಿವಾದಿ ನಂ.1 ರವರು 65 ಅಪಾರ್ಟ್ ಮೆಂಟ್ ಗಳನ್ನು ಅವರ ಕಬ್ಜ ಕ್ಕೆ ತೆಗೆದುಕೊಂಡಿದ್ದಾರೆ 54 O.S.No.3799/2023 ಅಂದರೆ ಸರಿ. ಈ ಬಗ್ಗೆ ಪ್ರತಿವಾದಿ ನಂ.1 ರವರು ಮ್ಯಾಜಿಸ್ಟ್ರೇಟ್ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ದಾವಾ ಆಸ್ತಿಯ ಸ್ವಾಧೀನವನ್ನು ಪಡೆದುಕೊಂಡಿದ್ದಾರೆ ಅಂದರೆ ಸರಿ. ದಿಃ 27.09.2022 ರಂದು 1 ನೇ ಪ್ರತಿವಾದಿ ಸಂಸ್ಥೆ ಎಲ್ಲಾ ಅಪಾರ್ಟ್ ಮೆಂಟ್ಗಳನ್ನು auction ಮೂಲಕ ವಾದಿಯ ಸಂಸ್ಥೆ ಗೆ ಮಾರಾಟ ಮಾಡಿರುತ್ತಾರೆ ಅಂದರೆ ಸರಿ. 1 ನೇ ಪ್ರತಿವಾದಿಯ ಕಡೆಯಿಂದ no objection ಪಡೆಯದೇ 4 ನೇ ಪ್ರತಿವಾದಿಯವರಿಗೆ ನೊಂದಾಯಿತ ಕರಾರು ಪತ್ರ ಹಾಗೂ ಖರೀದಿ ಪತ್ರವನ್ನು ಮಾಡಿಕೊಟ್ಟಿದ್ದೇವೆ ಅಂದರೆ ಸರಿ."
26. The defendant No.1 has deposed and contended that, it has sanctioned mortgage loan against the suit schedule property to a tune of Rs.16 crores in favour of 2nd defendant and the defendant No.2 has executed Escro agreement and Indenture of mortgage without possession dated: 03.04.2018 in favour of its Company. Due to default in repayment, the account was classified as non-performing asset. Invoking the provisions of SARFAESI Act, issued demand Notice, possession Notice and took possession of the secured asset including the 55 O.S.No.3799/2023 suit schedule properties. The secured asset came to be sold in public auction in favour of the plaintiff firm and they have executed registered sale certificate dated: 27.09.2022 in favour of the plaintiff firm. The defendant No.2 has admitted that, the 1st defendant company had sanctioned loan of Rs.16,00,00,000/- to itself for the construction of residential project i.e. 'Manyam Sky Park'. The defendant No.4, and defendant No.5 and 6 have not led any evidence. The defendant No.2 is not authorized to sell the mortgaged properties or part thereof without prior written consent from the 1st defendant in the form of 'No objection certificate.' The defendant No.4 is not diligent while making transaction with 2nd defendant. The defendant No.2 and 3 have not challenged order passed in Criminal Misc.No.2627/2022 by XXX Addl. Chief Metropolitan Magistrate, Bengaluru against the defendant No.2 and 3 and others which is filed U/Sec.14 of SARFAESI Act seeking to take physical possession of secured asset property. On perusal of Ex.P.1- Indenture of mortgage 56 O.S.No.3799/2023 without possession dated: 03.04.2018, it is evident from clause 5.1, the 2nd defendant being the mortgagor to the 1st defendant had specifically and categorically agreed, stated, confirmed and declared that the mortgaged properties which was offered as security is a continuing security and shall remain in full force and effect until the entire mortgage debt had been fulfilled/repaid or otherwise made good. Further on perusal of Ex.P.1 which demonstrates that as per clause 6.1, the 2 nd defendant had also agreed, undertaken, promised and declared that so long as the mortgage debt or any part thereof remains unpaid, the 2nd defendant shall not deal with or dispose of any interest in any of the mortgaged properties or any part thereof in a manner prejudicial to the interests of 1 st defendant, except with prior permission in writing from 1 st defendant and shall hold the same unto and to the use absolutely for the benefit of 1st defendant and subject to the powers and provisions declared and contained and concerning the same.
57 O.S.No.3799/2023
27. By considering entire evidence of P.W.1 and D.W.1, D.W.2 and documents exhibited on both sides, on close scrutiny of pleadings of both parties and on careful appreciation of evidence, the plaintiff has not claimed relief of that, by virtue of sale certificate registered on 27.09.2022 it has become the owner in possession of suit schedule 'B' property. The plaintiff has proved that registered agreement of sale dated: 27.02.2020 is not binding on itself. Hence, the plaintiff is entitled for the relief of perpetual injunction as sought. Hence, I answer Issue No.1 as does not survive for consideration, Issue No.2 in Affirmative and Issue No.3 partly in the Affirmative.
28. ISSUE NO.4: In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby partly decreed with costs.58 O.S.No.3799/2023
The defendant No.2, its agents, servants, representatives, henchmen or anybody claiming through or under them are hereby restrained by way of permanent injunction from directly or indirectly from completing the sale transaction in respect of the suit schedule property in any manner whatsoever with the 4th defendant.
Draw decree accordingly.
(Dictated to the Typist directly on computer online, typed by him corrected by me and then pronounced in the open Court on this the 18th day of December, 2025) (SHIVANAND MARUTI JIPARE) C/C. XLIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : Mr.Abhishek C, S/o.P.V.Chandrashekar.59 O.S.No.3799/2023
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 : Certified copy of Indenture of mortgage without possession dated: 03.04.2018.
Ex.P.2 : Certificate of registration of charge. Ex.P.3 & : Copies of Registration of security interest Ex.P.4 acknowledgment reports issued by CERSAI.
Ex.P.5 : Certified copy of order in
Crl.Misc.No.2627/2022 dated:
16.06.2022.
Ex.P.6 : Digitalized copy sale certificate dated:
27.09.2022.
Ex.P.7 : Encumbrance certificate.
Ex.P.8 : Digitalized copy of sale agreement
dated: 27.02.2020.
Ex.P.9 : Certificate under Section 65-B of India
Evidence Act by way of affidavit.
Ex.P.10 : Registration certificate.
60 O.S.No.3799/2023
LIST OF WITNESSES EXAMINED FOR DEFENDANTS: D.W.1 : Sri.Yadhu Krishnan Ramkrishnan, S/o.E.Ramakrishnan.
D.W.2 : Sri.Sumanth,
S/o. D.S.Manjunath.
LIST OF DOCUMENTS MARKED FOR DEFENDANTS: Ex.D.1 & : True copies of authorization letter. Ex.D.2 (SHIVANAND MARUTI JIPARE) C/C. XLIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU