IMPORTANT POINT
Unless appeal is admitted recovery proceeding cannot be stayed.

Prasenjit Mandai, J.—Challenge is to the order dated May 15, 2013 passed by the Hon’ble Chairperson, Debts Recovery Appellate Tribunal in Appeal No.112 of 2013 thereby rejecting the prayer for stopping to sell of the immovable property to be held on June 1, 2013 on the ground that the said appeal was then yet to be admitted and the consideration of pre-deposit etc., under Section 18 (1) of the SARFAESI Act, 2002 has not been decided till then.

2. In a recovery proceeding by a secured creditor against the debtor, the question of title of a third party over the mortgaged property was the subject matter of consideration before the Debts Recovery Tribunal-II, Kolkata. The third party prayed for dismissal of the SARFAESI application pending before the Debts Recovery Tribunal-II, Kolkata and that application was rejected by the learned Tribunal by the judgment and order dated April 2, 2013.

3. Being aggrieved, the third party claiming 50% title over the property, filed an appeal and at the time of admission of the said appeal, the prayer was made for stopping the sale of the mortgaged property claiming 50% ownership of the said property and it was not entertained till then. Being aggrieved, this application has been preferred.

4. Now, the question is whether the impugned order should be sustained.

5. Upon hearing the learned Counsel for the parties and on going through the materials on record, it appears that the debtor took a loan of Rs.10,00,000 from the secured creditor, i.e., the bank/opposite party herein by mortgaging the property in case by giving declaration that she was the owner of the entire property to be mortgaged.

6. From the materials on record, it appears that the attempts had been made in such a calculated manner so as to stop the realization of the debts by the secured creditor against the debtor.

7. Under the provisions of SARFAESI Act, 2002, the debtor Smt. Krishna Poddar, proforma respondent No.4 applied to the bank for a loan and the said loan was sanctioned to the tune of Rs.I0,00,000 on October 15, 2005 upon observing the formalities for securing the recovery of the loan by the bank. Even the debtor had executed an affidavit for mortgage on October 5, 2010. A letter of mortgage on October 21, 2005 confirming that the title deed in her favour had been deposited and her husband and father, namely, Subrata Saha and Hirendranath Poddar stood as guarantors for the said land by executing the letter of guarantee. When the secured creditor took steps under Section 13(2) of the said Act of 2002, several steps, litigation arose including filing of a suit for partition of the mortgaged property.

8. The contention of the petitioner is that a deed of gift was executed earlier, but, registered on October 25, 2005, i.e., after over of the matter of mortgage in favour of the secured creditor by the loanee. Though the said deed of gift was executed earlier, it appears that the valuation report dated October 6, 2005 when made, the loanee did not disclose that a gift of 50% of the property in case had been made in favour of the petitioner. Possibly, as the deed was registered subsequent to the date of execution of the mortgaged deed, the secured creditor had no opportunity to verify from the connected documents or concerned offices by way of search.

9. It is pertinent to mention that the donor and the donee reside in the same house so, the fact of execution of a deed of gift was known to each other and even when the valuation was done, the fact of execution of a deed of gift was not even disclosed. So, the loanee, the donee, the guarantors and others appears to have acted collusively to commit fraud upon the secured creditor.

10. Under the circumstances, prima facie, the Hon’ble Appellate Tribunal is quite justified to observe that unless the appeal is admitted and the application under Section 18(1) of the SARFAESI Act, 2002 is disposed of, there is no scope to grant stay as prayed for by the petitioner before the Hon