Bangalore District Court
M/S Sohan Reaalty vs M/S Capri Gobal Capital Limited on 18 December, 2025
1 O.S.No.3806/2023
KABC010156112023
Presented on : 20.06.2023
Registered on : 20.06.2023
Decided on : 18.12.2025
Duration : 02 years, 05 months, 28 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.3806/2023
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.3806/2023
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.3806/2023
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. Mr. Bolisetty Venkata
Poornananda Babu,
S/o. B. Satyanarayana,
Aged About 57 years,
R/at. No.23-9-7/A, Sai Nilayam,
Library Street, Vijayawada,
Andrapradesh-520011.
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.3806/2023
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. Abheek Saha, Advocate for D-4.)
(By Sri.V.Sanjay Krishna., Advocate for D-5 & D-6.)
************
Date of Institution of the suit 20.06.2023
Suit for declaration and
Nature of the suit 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 28
(SHIVANAND MARUTI JIPARE)
C/C. XLIII ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.
5 O.S.No.3806/2023
************
JUDGMENT
The plaintiff has filed this suit against the defendants seeking to declare that the registered sale deed dated:
25.03.2021 executed by 2nd defendant representing 5th and 6th defendant in favour of the 4th defendant vide document No.BYP-1-10037/2020-21, stored in CD.No.BYPD834 in the office of the Sub-Registrar, Gandhinagar (Byatarayanapura), Bengaluru 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 sale deed dated:
25.03.2021 as invalid/void and non-est/illegal in their relevant books and for permanent injunction restraining 4th defendant, his agents, servants, relatives, 6 O.S.No.3806/2023 representatives, henchmen оr anybody claiming through or under them, directly or indirectly, from alienating or creating third party interest in respect of suit schedule property in any manner whatsoever, 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 the 2nd 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 7 O.S.No.3806/2023 1,72,261 sq. feet (127 units) out of which 2 nd defendant's 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 8 O.S.No.3806/2023 defendant No.2 has also created ROC charge in favor of 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
9 O.S.No.3806/2023
17 1 7H 7 162 482 674
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
10 O.S.No.3806/2023
43 2 2B 2 529 1561 2196
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.3806/2023
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.3806/2023 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.3806/2023 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.3806/2023
(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.3806/2023
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, 2 nd 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 16 O.S.No.3806/2023 instruments, plumbing materials, construction 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 17 O.S.No.3806/2023 howsoever and all replacements thereof and 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' 18 O.S.No.3806/2023 and 'whatever there is' basis, the plaintiff is making 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 conveyed one among the mortgaged properties i.e. residential apartment/flat bearing No.6E, Tower-2, on sixth floor in the multistoried residential apartment building known as 'Manyam Sky Park', measuring super built up area admeasuring 1714 square feet and carpet area 1219 square feet, along with one covered car parking space in the basement and 412.95 square feet of undivided share in the land of suit schedule 'A' property, which is the suit schedule 'B' property to the 4th defendant by way of registered sale 19 O.S.No.3806/2023 deed dated: 25.03.2021, vide document No.BYΡ-1- 10037/2020-21, stored in CD.No.BYPD834, 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 2 nd 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 2nd defendant had also agreed, undertaken, promised and declared that so long as the mortgage debt or any part thereof remains unpaid, the 2 nd 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 1 st defendant 20 O.S.No.3806/2023 and shall hold the same unto and to the use absolutely for the benefit of the 1 st 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.3806/2023 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 bound to deal with the mortgaged properties only in terms of the indenture of mortgage without possession dated: 03.04.2018, the sale deed executed by the 2nd 22 O.S.No.3806/2023 defendant in favour of 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 and that the sale is in contravention to clause 5 and 6, the 2nd defendant 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 2nd 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 4th 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 in respect of the suit schedule 'B' property and has failed to discharge his liabilities as 23 O.S.No.3806/2023 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. 2nd 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 sale deed which is being wrongly executed by the 2nd defendant in favour of the 4 th defendant is set aside or property is set free from all encumbrances. There is every chance, wherein the 4th defendant might further alienate or create charge in favour of third party. Hence, the plaintiff in order to avoid risk has approached Court. The cause of action is arisen to file this suit on 24 O.S.No.3806/2023 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.3806/2023 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 its clear that defendant Nos.2, 3 and 4 have played fraud on defendant No.1 and have transacted over already mortgaged property. Hence, the defendant No.1 prays to decree the suit.
26 O.S.No.3806/2023
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 it 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 its 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 27 O.S.No.3806/2023 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 Nos.2 and 3 in favour of defendant No.4 and other 3 rd parties are saved and therefore the plaintiff is not entitled for questioning the sale deed dated: 25.03.2021 executed by 2nd defendant in favour of 4th defendant and so also the other sale agreements executed by the defendant Nos.2 and 3 in favour of others. The defendant Nos.2 and 3 further contend that though the 1st 28 O.S.No.3806/2023 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 delayed. It is because of under finance and non-disbursing the loan amount on time by the defendant No.1 the project could not be completed. They have paid a sum of Rs.4,42,53,171/- towards repayment of the loan to the 1 st 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 defendant creating mortgage of development rights pertaining to 65 unsold apartments units constructed over property measuring to 29 O.S.No.3806/2023 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 2nd defendant has also created ROC charge in favour of the defendant No.1. The defendant Nos.2 and 3 further deny that the 2 nd defendant has committed a default in repayment of the loan to the 1 st 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 to news papers. The defendant Nos.2 and 3 further contend that the plaintiffs and defendant No.1 are in collusion with each other and sold the property of them 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 30 O.S.No.3806/2023 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, arrangements, contracts, and documents executed by defendant No.2 including the project documents, any profits and accretions accruing to 31 O.S.No.3806/2023 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 auctionable 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 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 32 O.S.No.3806/2023 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. 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 deed dated: 25.03.2021 executed by 2nd defendant in favour of 4 th 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 deed dated: 25.03.2021 executed by defendant No.2 in favour of the defendant No.4 and the encumbrance certificate clearly shows the said transaction and he cannot plead that only 06.03.2023, he came to know about registered sale deed dated: 25.03.2021 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 33 O.S.No.3806/2023 the indenture of mortgage without possession dated:
03.04.2018 shows that 2nd 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 2 nd defendant had agreed and undertaken to not to dispose of any of the interest in mortgaged properties without the prior permission in writing from the 1 st 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 2nd 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 deed dated: 25.03.2021 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 defendant No.2 is not authorized to sell the said property without the prior written consent from the 1st defendant. The defendant 34 O.S.No.3806/2023 No.2 and 3 contend that the defendant No.4 is a bonafide purchaser and he has purchased the same by paying the sale consideration and the same is valid in law and he was put to possession of the said flat on the date of sale deed itself and therefore question of setting aside the said sale deed 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 entire plaint averments in toto. The defendant No.4 contends that suit is not maintainable. The defendant No.4 contends that he is a bonafide purchaser of the suit schedule 'B' property having acquired the same from the sellers i.e. defendant Nos.5 and 6 represented by their General Power of Attorney holder defendant No.2, paying entire sale consideration amount, executing a registered sale deed dated: 25.03.2021, registered as document No.BYP-1-10037-2020-21 in 35 O.S.No.3806/2023 CD.No.BYPD834 at SRO Gandhinagara (Byatarayanapura) Bengaluru, and has acted in good faith. Initially, as per the agreement between defendant No.4 and the sellers, the sellers expressed their willingness to sell the flats in Visakhapatnam, Andhra Pradesh. Subsequently, as part of an internal adjustment, Navya Construction, the defendant No.3, offered the defendant No.4 the option to purchase flats in Bengaluru under the 'Manyam Sky Park' project, which was later accepted by defendant No.4 and from the date of purchase, the 4th defendant has been in peaceful possession and enjoyment of the suit schedule 'B' property. When such is the case on 27.06.2022 at around 3:00 p.m. some unknown persons had affixed the possession Notice on the project premises who represented and claimed themselves to be the officials of the 1st defendant and came to the suit schedule 'A' property and demanded the 4 th defendant the occupant of 5 flats, i.e. flat No.4E tower 2, flat No.6E tower 2, the schedule 'B' property, flat No.7E tower 2, flat No.7B tower 36 O.S.No.3806/2023 1, flat No.2E tower 2 to vacate the premises forthwith in view of the order dated: 16.06.2022, obtained before the jurisdictional magistrate in Crl.Misc.No.2627/2022, passed by the 30th ACMM Court at Bengaluru. The defendant No.4 further contends that he was shocked and could not understand the manner in which such a demand was made or the reasons therefore and despite his repeated request to find out the reasons, the people who has accompanied the person who identified themselves as authorized persons from the 1 st defendant had said that the 2nd defendant had taken some loan from the 1st defendant and they had an order from the Court to take physical possession and Notice was fixed for auction of the suit schedule 'B' property and he was not notified and was also not aware of any proceedings including the obtaining of the loan by the 2 nd defendant from the 1st defendant, moreover no documents were given, no orders were shown to the 4 th defendant and then immediately the 4th defendant challenging the auction 37 O.S.No.3806/2023 Notice dated: 27.06.2022 published in the Hindu and Udayavani paper under the signature of the 1 st defendant, has filed appeal before the Debt Recovery Tribunal, Bengaluru in S.A.No.488/2022. In the said notice, the date which was fixed for E-Auction was 30.07.2022, however, on 02.08.2022 while hearing the case by the Presiding Officer of the D.R.T. the Counsel for the 1st defendant submitted that, there were no bidders, and the sale has not taken place on the schedule date and considering the submission made by the learned Counsel for the 1st defendant, the Tribunal by its order dated: 02.08.2022 had dismissed the appeal as infructuous. The defendant No.4 further contends that the plaintiff got access to one sale certificate dated:
27.09.2022 issued by the authorized officer of the 1 st defendant in favour of the plaintiff declaring the plaintiff as successful bidder and conveying the suit schedule 'A' and 'B' property to the plaintiff for a sum of Rs.13,77,00,000/- as against the reserve price of 38 O.S.No.3806/2023 Rs.17,00,000/- as mentioned in the 1 st sale Notice published in newspapers. Further, the defendant No.1 has not published fresh sale Notice in the newspapers notifying and fixing the date of auction as mandated under Rule 9 of the Security Enforcement Rules 2002. The defendant No.4 being the interested persons, who is having the title over the property, was not made aware of the entire sale proceedings. The defendant No.1 was fully aware about the title and interest of the defendant No.4 flats in the project 'Manyam Sky Park' as the sale deed executed for the 6 flats were registered before the office of the Sub-Registrar, Byatarayanapura and out of these 6 flats, the defendant No.1 illegally conveyed 5 flats including the suit schedule 'B' property in favour of plaintiff by illegally executing the sale certificate and the 1st defendant - NBFC did not communicate the decision of reducing the reserve price from Rs.17,00,00,000/- to Rs.13,77,00,000/- to any of the interested person which is arbitrary and moreover because of non-publication of 39 O.S.No.3806/2023 second auction notice in newspaper and/ or wide circulation there is no maximum public awareness and participation. The defendant No.4 further contends that Section 13(13) of the SARFAESI Act provides that 'no borrower shall, after receipt of Notice referred to in Sub-
Section (2) of Section 13 of the SARFAESI Act, transfer by way of sale, lease or otherwise, any of his secured assets referred to in the Notice, without prior written consent of the secured creditor'. The Courts in multiple instances held that if the borrower makes a lease of the secured assets after receipt of a Notice under Sub-Section (2) of Section 13 of the SARFAESI Act without the prior written consent of the secured creditor, the lease would accordingly be void and the possession of the secured asset of the lessee is not protected by law. In the instant case the absolute sale in favour of the defendant No.4 by the defendant Nos.5 and 6 represented by their GPA holder defendant No.2, was done prior to Section 13(2) Notice was issued. The Section 13(2) Notice was issued 40 O.S.No.3806/2023 on 13.12.2021, which is much later than the absolute sale deed executed by the defendant Nos.5 and 6 represented by their GPA holder defendant No.2 in favour of the defendant No.4. None of the transactions by any stretch of meaning can be called an overnight transaction. The sale deed dated: 25.03.2021, registered as document No.BYP-1-10037/2020-21 in CD.No.BYPD834 at SRO Gandhinagara (Byatarayanapura) Bengaluru, was executed much prior to the Section 13(2) demand Notice which was issued by the defendant No.1. The Hon'ble Supreme Court in Harshad Govardhan Sondagar -Vs- International Assets Reconstruction Co. Ltd. and others, (2014) 6 SCC 1, MANU/SC/0377/2014 also held in similar lines for lease, sale executed prior to the Section 13(2) SARFAESI Notice. The defendant No.4 further contends that any restriction can either flow from the statute or rules framed thereunder or from contract, in the instant case, if the Sec.13(2) Notice by defendant No.1 - Capri Global was not prior to such absolute sale deed executed 41 O.S.No.3806/2023 by the defendant No.2 in favour of the defendant No.4, then the next question is whether the restriction what the respondent Capri Global was claiming and now being claimed by M/s.Sohan Realty, is flowing from the mortgage deed and even if the deed enumerated any such restriction, the NBFC Capri Global and now M/s. Sohan Realty, cannot rely upon such restriction first because as at third party/defendant No.4 when at loss, the same is happening due to failure of the defendant No.1 - Capri Global to record their lien/ charge on the individual 5 flats and secondly they further cannot rely upon the restrictive clauses of the deed because they themselves did not perform their obligations as per schedule mentioned under the deed. The letter dated:
12.05.2023 was received from defendant No.2, after the defendant No.4 approached DRT vide S.A.No.53/2023 and it highlights how the plaintiff, defendant No.1 and others colluded to take over schedule 'A' and 'B' property illegally. The letter clearly indicates that disbursement of 42 O.S.No.3806/2023 the loan sanctioned by the defendant No.1 for defendant No.2 project was never done as per the loan offer letter and deed. The defendant No.2 in the same letter states that the first tranche payment was Rs.2.2 crore whereas the loan offer letter mentions a much higher amount as 1st tranche payment which was agreed to be released.
The loan offer letter dated: 28.03.2018 which under the clause of disbursement clearly mentions the amount of Rs.4.2 crores as 1st tranche payment as one single payment. These documents further proves that by not allowing the defendant No.2 to complete the project in time by creating a liquidity crisis, the defendant No.1 ensured getting possession of a high value immovable property for a very minimal amount of Rs.10.2 crore which they released as loan for the project of defendant No.2 'Manyam Sky Park'. The defendant No.4 further contends that on perusal of these documents reveal that the total amount which the defendant No.1 sanctioned as loan for the project was Rs.16 crores and out of which 43 O.S.No.3806/2023 they released in total only Rs.10.20 crores and that too not as per schedule mentioned in the loan offer and deed. The document further reveals that defendant No.1 also collected Rs.4,43,74,148/- as principal + interest from the defendant No.2 and the worth of the immovable properties which the defendant No.1 covered in their possession Notice is more than Rs.65 crores as per present market condition. Further, first by creating liquidity crisis for the defendant No.2 to complete the project, second by reducing the reserve price from Rs.17,00,00,000/- to Rs.13,77,00,000/-, third by completing the sale in favour of the plaintiff in such a haste without issuing a proper widely circulated newspaper publication, all points towards the urgency with which defendant No.1 moved to illegally usurp immovable properties in the project 'Manyam Sky Park'. The defendant No.4 further contends that out of the entire schedule property mentioned in the sale certificate, 4 other apartment flats along with the suit 44 O.S.No.3806/2023 schedule 'B' property belonging to the 4th defendant were also conveyed to the plaintiff without giving any Notice to the 4th defendant even though defendant No.4 was a necessary party, and the plaintiff, also defendant No.1 had full knowledge about the rights of the defendant No.4 in the suit schedule property, as defendant No.1 -Capri Global Capital was a party to the proceeding before the DRT in S.A.No.488/2022 when the defendant No.4 challenged the 1st sale Notice dated: 27.06.2022. Hence the 4th defendant was constrained to file a second petition before the Debt Recovery Tribunal, Baengaluru in S.A.No.53/2022 seeking the relief of set aside the sale certificate dated: 27.09.2022, with respect to the 4 other apartment flats along with the suit schedule 'B' property belonging to the 4th defendant and the same was dismissed by the DRT on the grounds of Limitation and further appeal was filed by the 4th defendant before the Debt Recovery Appellate Tribunal, Chennai which is under process/ pending for consideration. The defendant No.4 45 O.S.No.3806/2023 further contends that at the time of purchasing the suit schedule 'B' property, no such alleged encumbrances or charges were disclosed by the sellers i.e. defendant No.2 and the 4th defendant had made reasonable inquiries to ensure that the title of the suit schedule 'B' property was clear, and was under the impression that the suit schedule 'B' property was free from any encumbrances or charges. The defendant No.4 further contends that the alleged charge was created over the suit schedule 'B' property by the defendant No.2 in favour of the defendant No.1, to secure a loan, which was not disclosed to the 4th defendant at the time of the sale and the 4 th defendant was unaware of the alleged mortgage, and the 4th defendant was not made aware of alleged pending loan default by defendant No.2 or any subsequent proceedings for the auction of the property. Moreover the defendant No.1 has never taken steps to record their alleged charge for individual flats, more specifically 5 flats including the suit 'B' schedule property purchased 46 O.S.No.3806/2023 by the defendant No.4 from defendant No.2 and the individual flat's E.C. was the only publicly document available then to the defendant No.4 before proceeding with registration of his sale deeds for 6 flats in the project 'Manyam Sky Park'. The defendant No.4 further contends that as a bonafide purchaser for value, the he has acquired an indefeasible title over the suit schedule 'B' property and he acted in good faith, and no prior charge, mortgage, or encumbrance was disclosed to him by the sellers at the time of the purchase and under section 41 of the Transfer of Property Act, the 4th defendant is protected as a bonafide purchaser of the property and is entitled to retain the property, free from any undisclosed charges or liabilities and the plaintiff, being a subsequent purchaser (post-auction), cannot seek to cancel the registered sale deed executed in favour of the 4 th defendant. Hence, the defendant No.4 prays to dismiss the suit.
47 O.S.No.3806/2023
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 owners 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 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- 48 O.S.No.3806/2023 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 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 49 O.S.No.3806/2023 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 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 50 O.S.No.3806/2023
- 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 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 51 O.S.No.3806/2023 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 2 nd defendant in favour of 1st defendant 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?
2. Whether plaintiff proves that registered sale deed dated: 25.03.2021 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?
52 O.S.No.3806/2023
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 closed their side evidence.
10. Heard the arguments and perused the materials on record.
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:53 O.S.No.3806/2023
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 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 4 nd defendant might further alienate or create charge in favour the third party.
54 O.S.No.3806/2023
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 the 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 eyes of law. The defendant No.4 is a bonafide prospective purchaser and he has purchased the same by paying the portion of sale consideration and the same is valid in law and therefore question of setting aside the said sale deed do not arise.
55 O.S.No.3806/2023
16. The defendant No.4 has contended in his written statements that he is bonafide purchaser for value and he has acquired an indefeasible title over the suit schedule 'B' property and he acted in good faith, and no prior charge, mortgage, or encumbrance was disclosed to him by the sellers at the time of the purchase and under section 41 of the Transfer of Property Act, the 4th defendant is protected as a bonafide purchaser of the property and is entitled to retain the property, free from any undisclosed charges or liabilities and the plaintiff, being a subsequent purchaser (post- auction), cannot seek to cancel the registered sale deed executed in favour of the 4th defendant.
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 56 O.S.No.3806/2023 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 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 57 O.S.No.3806/2023 Sri.Yadhu Krishnan Ramkrishnan has filed an affidavit as 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 defendants have not produced any documents in support of their defence.
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 58 O.S.No.3806/2023 dated: 16.06.2022, Ex.P.6 - Certified copy of sale certificate dated: 27.09.2022, Ex.P.7 -Encumbrance certificate, Ex.P.8 - Certified copy of sale deed dated:
25.03.2021, Ex.P.9 - Certificate under Section 65-B of Indian Evidence Act by way of affidavit and Ex.P.10-
Registration certificate.
22. 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 recorded the charge of the secured asset on CERSAI 59 O.S.No.3806/2023 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 the 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 Sri.M.Vijay Kumar, have executed sale deed on 60 O.S.No.3806/2023 25.03.2021 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.
23. 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 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:
"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 61 O.S.No.3806/2023 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 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 62 O.S.No.3806/2023 ಪಡೆಯದೇ 4 ನೇ ಪ್ರತಿವಾದಿಯವರಿಗೆ ನೊಂದಾಯಿತ ಕರಾರು ಪತ್ರ ಹಾಗೂ ಖರೀದಿ ಪತ್ರವನ್ನು ಮಾಡಿಕೊಟ್ಟಿದ್ದೇವೆ ಅಂದರೆ ಸರಿ."
24. 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 and invoking the provisions of SARFAESI Act, issued demand Notice, possession Notice and took possession of the secured asset including the 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 1 st defendant company had sanctioned loan of 63 O.S.No.3806/2023 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 2 nd 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 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 64 O.S.No.3806/2023 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.
25. 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 65 O.S.No.3806/2023 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 sale deed dated: 25.03.2021 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.
26. ISSUE NO.4: In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby partly decreed with costs.
The defendant No.4,
his agents, servants,
representatives, henchmen or
anybody claiming through or under
them are hereby restrained by way
of permanent injunction from
66 O.S.No.3806/2023
directly or indirectly from
alienating or creating third party
interest in respect of suit schedule
property.
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.
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.67 O.S.No.3806/2023
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 deed dated:
25.03.2021.
Ex.P.9 : Certificate under Section 65-B of Indian
Evidence Act by way of affidavit.
Ex.P.10 : Registration certificate.
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:
-NIL-
(SHIVANAND MARUTI JIPARE) C/C. XLIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.