# 4 S .C.R. 790 MAHARAJI EDUCATIONAL TRUST v. HOUSING & URBAN DEVELOPMENT CORPORATION LTD. & ORS

- **Citation:** [2017] 4 S.C.R. 790
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Civil Appeal Nos. 6463-65 of 2017
- **Bench:** Arun Mishra, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-790-maharaji-educational-trust-v-housing-urban-development-corporation-32093
- **Pages:** 26

## Headnote

Securitization and Reconstruction of Financial Assets and
C Enforcement of Security Interest Act, 2002:
s. 13(2) - Appellant-Educational Trust took loan of Rs. 75
crores from respondent No. 1 (HUDCO) - Properties Nos. 1 to 6
mortgaged - Recovery proceedings by HUDCO under 1993 Act -
21 acres out of the mortgaged property No. 6 was exchanged by
D
the Trust with Awas Parishad - Thereafter agreement to sell property
No. 6 comprising of 63.45 acres (including the 21 acres obtained
in exchange) by the Trust with a construction company - Part
payment (Rs. 9 crores) obtained from the constniction company paid
by the Tnist with HUDCO - In arbitration proceedings between the
Trust and the construction company in respect of specific
E p,erformance of the agreement, interim injunction was passed not
to sell the property in question therein - Proceedings by HUDCO
under SARFAESI Act - Dispute as regards the Property No. 6 (which
included 21 acres exchanged land) between the Trust and the
construction company, as to whether it could be sold under
F SARFAESI Act for satisfying the dues of the Trust - Held: 21 acres
out of the property No. 6 (which was obtained in exchange) was
unencumbered - It cannot be treated as accession to property under
mortgage within purview of s. 70 of Transfer of Property Act -
Therefore HUDCO does not have first right to sell the 21 acres of
G land- It has right qua the other mortgaged properties (i:e. properties
Nos. 1 to 5 and 43 acres of property No. 6) to realize the dues at the
first instance - The Trust is directed to settle the scheme for payment
with HUDCO - On failure by the Trust to settle the scheme, it would
be open to HUDCO to sell· approximately 43 acres of land (of the
mortgaged property No. 6) - if proceeds from the sale thereof are
H not sufficient to satisfy the dues, it can sell the property Nos. I to 5
790
'
,-
MAHARAJ! EDUCATIONAL TRUST v. HOUSING & URBAN
791
DEVELOPMENT CORPORATION LTD.
or its part which may be necessary for realization of the outstanding A
dues - Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 - Transfer of Property Act, 1882 - s. 70.
Transfer of Property Act, 1882:
s. 70 - Doctrine of accession - Meaning and Scope of -
Discussed.
·
B
Words and Phrases:
'Accession' - Meaning of. in the context of Transfer of
Property Act, 1882.
Disposing of the appeals, the Court
HELD: 1. The doctrine of accession is limited to cases
where the security in existent and has not been destroyed
altogether and the mortgagor thereafter acqu~res, while keeping
c
the security intact, a new right which is called accession. In the ·
instant case, the property which is 21 acres under mortgage, could D
not have been transferred by the Educational Trust free from
encumbrances to Avas Parishad at all. As the property was
encumbered, the charge of HUDCO would remain on the existing
property which was actually under the mortgage deed. Thus the
property which has been taken by Avas Parishad from the
Educational Trust could not be said to be unencumbered and was
subject to mortgage and it was not legally permissible for
Educational Trust to give it to Avas Parishad as unencumbered.
property. [Para 29) [807-H; 808-A-B]
E
2. Enlargement of estate is also an accession. Section 70 of F
Transfer of Property Act, 1882 (TP Act) is not limited to physical
accretions or additions. In case there is increase of interest, the
same is also covered under purview of Section 70. In case
mortgagor had only the leasehold rights and had acquired freehold
rights during subsistence of the mortgage, the same has to be
treated as an accession to the property. Addition of occupancy G
rights or some other such rights with respect to the existing
property should also be an accession to the mortgaged property.
If the mortgagor discharges a prior encumbrance existing at the
date of the mortgage, the increase in the value of the estate is for
the benefit of the mortgagee. A clearance of the adjoining waste
H
792
SUPR

## Text

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A
B
[2017] 4 S .C.R. 790
MAHARAJI EDUCATIONAL TRUST
v.
HOUSING & URBAN DEVELOPMENT
CORPORATION LTD. & ORS.
(Civil Appeal Nos. 6463-65 of 2017)
MAYOS,2017
[ARUN MISHRA AND S. ABDUL NAZEER, JJ.)
Securitization and Reconstruction of Financial Assets and
C Enforcement of Security Interest Act, 2002:
s. 13(2) - Appellant-Educational Trust took loan of Rs. 75
crores from respondent No. 1 (HUDCO) - Properties Nos. 1 to 6
mortgaged - Recovery proceedings by HUDCO under 1993 Act -
21 acres out of the mortgaged property No. 6 was exchanged by
D
the Trust with Awas Parishad - Thereafter agreement to sell property
No. 6 comprising of 63.45 acres (including the 21 acres obtained
in exchange) by the Trust with a construction company - Part
payment (Rs. 9 crores) obtained from the constniction company paid
by the Tnist with HUDCO - In arbitration proceedings between the
Trust and the construction company in respect of specific
E p,erformance of the agreement, interim injunction was passed not
to sell the property in question therein - Proceedings by HUDCO
under SARFAESI Act - Dispute as regards the Property No. 6 (which
included 21 acres exchanged land) between the Trust and the
construction company, as to whether it could be sold under
F SARFAESI Act for satisfying the dues of the Trust - Held: 21 acres
out of the property No. 6 (which was obtained in exchange) was
unencumbered - It cannot be treated as accession to property under
mortgage within purview of s. 70 of Transfer of Property Act -
Therefore HUDCO does not have first right to sell the 21 acres of
G land- It has right qua the other mortgaged properties (i:e. properties
Nos. 1 to 5 and 43 acres of property No. 6) to realize the dues at the
first instance - The Trust is directed to settle the scheme for payment
with HUDCO - On failure by the Trust to settle the scheme, it would
be open to HUDCO to sell· approximately 43 acres of land (of the
mortgaged property No. 6) - if proceeds from the sale thereof are
H not sufficient to satisfy the dues, it can sell the property Nos. I to 5
790
'
,-
MAHARAJ! EDUCATIONAL TRUST v. HOUSING & URBAN
791
DEVELOPMENT CORPORATION LTD.
or its part which may be necessary for realization of the outstanding A
dues - Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 - Transfer of Property Act, 1882 - s. 70.
Transfer of Property Act, 1882:
s. 70 - Doctrine of accession - Meaning and Scope of -
Discussed.
·
B
Words and Phrases:
'Accession' - Meaning of. in the context of Transfer of
Property Act, 1882.
Disposing of the appeals, the Court
HELD: 1. The doctrine of accession is limited to cases
where the security in existent and has not been destroyed
altogether and the mortgagor thereafter acqu~res, while keeping
c
the security intact, a new right which is called accession. In the ·
instant case, the property which is 21 acres under mortgage, could D
not have been transferred by the Educational Trust free from
encumbrances to Avas Parishad at all. As the property was
encumbered, the charge of HUDCO would remain on the existing
property which was actually under the mortgage deed. Thus the
property which has been taken by Avas Parishad from the
Educational Trust could not be said to be unencumbered and was
subject to mortgage and it was not legally permissible for
Educational Trust to give it to Avas Parishad as unencumbered.
property. [Para 29) [807-H; 808-A-B]
E
2. Enlargement of estate is also an accession. Section 70 of F
Transfer of Property Act, 1882 (TP Act) is not limited to physical
accretions or additions. In case there is increase of interest, the
same is also covered under purview of Section 70. In case
mortgagor had only the leasehold rights and had acquired freehold
rights during subsistence of the mortgage, the same has to be
treated as an accession to the property. Addition of occupancy G
rights or some other such rights with respect to the existing
property should also be an accession to the mortgaged property.
If the mortgagor discharges a prior encumbrance existing at the
date of the mortgage, the increase in the value of the estate is for
the benefit of the mortgagee. A clearance of the adjoining waste
H
792
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A land by the mortgagor is not an accession within the meaning of
Section 70. The property 21 acres obtained in exchange by
Educational Trust cannot be said to be accession within the
purview of Section 70 of TP Act. [Para 381 [812-C-FJ
B
c
D
E
Macleod v. Kissan (1906) ILR 30 Bom 250; Atmukur
V. Chetty v. Thimpurasundar AIR 1965 Mad 185; Saila
Bala v. Swerna Moyee AIR 1939 Cal. 275; PMPM
Chettyar Firm v. Siemens Ltd. (1933) ILR 11 Rang 322;
Tay Gyi v. Maung Yan 146 IC 674; Balakrishnan v.
Malaiyandi Konar [2006) 2 SCR 363 : (2006) 3 SCC
49;. Krishna Gopal v. Miller (1902) ILR 29Cal. 803;
Baljit Singh v. JI Cunnington AIR 1984 All 209; Nannu
Mal v. Ram Chander& Ors. AIR 1931 All. 277;
Sidheshwar Prasad v. Ram Saroop AIR 1963 Pat. 412
- referred to.
·
Elizabeth Webster & Ors. Herbert Power, George Henry
Davenport and Robert Burke 1867-69 Vol. 2 ILR 69 -
referred to.
Black's Law Dictionary; The Law Lexicon by P. ;.,
Ramanatha Aiyar 2nd Edn. 1997; Oxford Dictionary -
referred to.
3. In the instant case the property was exchanged by the
Educational Trust with Avas Parishad in the year 2007. Agreement
had been entered into with SGS Constructions on 26.8.2010 for a
sum of Rs.154 crores in order to pay the dues of HUDCO and a
sum of more than Rs.9 crores had also been paid to Educational
F
Trust which was deposited by it with HUDCO. Deposit of title
deed has been made by Educational Trust subsequently on
27.7.2011 with HUDCO but prior to that an agreement to sale
had been entered into for the aforesaid 21 acre~ of land which
was unencumbered. Thus at the time when the agreement had
G been entered into, the property was unencumbered and was not
under mortgage with HUDCO. Thus agreement with regard to
21 acres was not interdicted by interim order of DRT. Thus SGS
Constructions by making a huge payment of Rs.9 crores had
acquired a right over the said unencumbered property. Thus
HUDCO will not have the first right to sell the 21 acres of fan~
H which was unencumbered which was subject matter of agreement
MAHARAJ! EDUCATIONAL TRUST v. HOUSING & URBAN
793
DEVELOPMENT CORPORATION LTD.
· to sell. HUDCO will have the right for other mortgaged properties A
to realize the dues at the first instance. [Para 39) [812-F-H; 813A-B)
4. It is also apparent that there are several rounds of
litigation in spite of order of DRAT with respect to loan amount
having attained finality, is not being honoured for recovery which
B
proceedings under the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act had also
been initiated by HUDCO but sans any result. The history of the
case clearly indicates that it has virtually become impossible to
realize the dues owing to various litigations pending and filed by
parties or some other third persons. {Para 22] [805-C-D)
C
5. It appears that on one hand the Educational Trust is trying
to convey that property No.6 be sold first, at the same time it has
undertaken not to do so before arbitral tribunal and not questioned
the order of arbitral tribunal rather has consented to order of
arbitral tribunal that property No.6 not be sold. Parties are D
expected not to blow hot and cold. Conduct is unfair and
inconsistent and indicative of dilly- dallying tactics on the part of
the Educational Trust. However, there is yet another aspect that
HUDCO is not bound by interim order of arbitral tribunal to the
extent of approximately 43 acres of1)roperty comprised in Item
E.
No.6 and it would have first charge on said mortgaged property,
hence, it is permitted to sale 43 acres of land initially mortgaged
with it by Educational Trust. [Para 23) [805-F-Hl
6. The Educational Trust is a wilful defaulter and has built
the property, colleges, hospitals from the money borrowed from
F
HUDCO. It was the bounden duty of the Educational Trust to
pay back the money to HUDCO. Thus no equitable principle
comes to their rescue as despite running the institutions for the
last 22 years, they have not paid back the amount. Once they
want to run their colleges, hospitals etc. built up with the help of
money advanced by HUDCO, obviously they must honestly ooze
G
out the advantage which they are deriving from the institutions.
The increase of non-performing assets in banks is one of the
offshoots of such murky deals. It is shocking that despite having
means, earning profits, they are not interested in making payment.
Time has come when they have to be dealt with sternly and with H
794
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A an iron hand so as to make them pay public dues. The Educational
Trust is expected to make payment of the amount which has
~welled up to approximately to Rs.480 crores by now and make
payment otherwise they wiHhave to face the consequences. Not
only that, they have taken the money from HUDCO but from
B other incumbents i.e. SGS Constructions also but not interested
in making payment in spite of running several institutions. There
were orders which were passed earlier with respect to bank
accounts also, but the Court has not been addressed as to what
happened to those orders. It is not only startling but also shocking
to note that a giant institution which is imparting education to
C about 3000 students involving manpower of about 700 personnel
. is finding it difficult to pay the loaned amount and is coming up
with lame excuses to shirk its responsibility. [Para 40) [813-B-F,
H; 814-A]
7. The Educational Trust is directed to settle scheme of
D repayment with HUDCO within one month and to start payment
of dues w.e.f. month of June, 2017. On failure of Education Trust
as per aforesaid direction or in case of default, it would be open
to HUDCO to sale approximately 43 acres of the land which .was
mortgaged with it to realize its dues in the legally permissible
manner. In case the proceeds from sale ofapproximately 43 acres
E of land are not sufficient to satisfy the dues of HUDCO, it would
be open to sale property No.1 to 5 or its part which may be
necessary for realization of the outstanding dues. However, 21
acres of property which has been obtained in exchange from
Awas Parishad, cannot be sold. It is only in the -cir.cuinstance, if
F
Arbitrator disallows the claim of SGS Constructions for purchase
of 21 acres of said property can be sold, not otherwise. That
too, if dues of HUDCO remain outstanding after sale of
approximately 43 acres of land out of Ite.m No.6 mortgaged
initially and property item No.I to 5 which are under mortgage.
[Para 42] [814-D-GJ
G
Sura} Lamp & Jndusries Pvt. Ltd. v. State of Haryana &
Am: (2011) 11 SCR 848 : (2012) 1 SCC 656; Raheja
Universal Ltd. v. NRC Limited & Ors. [2012) 3 SCR 388
: (2012) 4 SCC 148; ML. Aggarwal v. Oriental Bank
of Commerce & Ors. 128 (2006) Delhi Law Times 407
H
(DB) - cited.
MAHARAJ! EDUCATIONAL TRUST v. HOUSING & URBAN
795
DEVELOPMENT CORPORATION LTD.
Case' Law Reference
A
[2006) 2 SCR 363
referred to
Para25
(1902) ILR 29 Cal. 803
referred to
Para 36
(1906) ILR 30 Dom 250
, referred to
Para 36
AIR 1965 Mad 185
referred to
Para 36·
B
AIR 1939 Cal. 275 .
referred to
Para 36
(1933) ILR 11 Rang 322
referred to
·Para 36
AIR 1984 All 209 '
referred to
Para 37
AIR 1931 All. 277
-referred to
Para 37
Am 1963 Pat. 412
referred to
Para 38
c
'146 IC 674
I_
referred to
Para 38
[2011) 11 SCR 848
cited
Para 41
(2012) 3 SCR 388
· cited
Para 41
128 (2006) Delhi Law
cited
Para 41
Times 407 (DB)
D
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 64636465 of 2017.
From the Judgment and Order dated 01.02.2017 of the High CoUrt
of Delhi at New Delhi in W. P. (C) No. 4412 of2013, LPA No. 248 of E
2016 & LPA No. 249 of2016
WITH
C. A. No. 6466 of2017.
Dr. A. M. Singhvi, Jayant Bhushan, Sr. Advs., Ashutosh Khaitan,
F
Navpreet Singh Ahluwalia, Deepak Chawla, Adhish Sharma, Umesh
Kumar Khaitan, Advs. for the Appellant.
Rana Mukherjee, Basav Prabhu S. Patil, Sr. Advs., Aarohi Bhalla,
Pallav Saxena, Omito Unnar K., Hrishikesh Baruah, Advs. for the
Respondents.
The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. Leave granted.
2. The appeals arise out .of common order dated 1.2.2017 passed
by the Division Bench of the High Court of Delhi at New Delhi in writ
'G
H
796
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A petition and two Letters Patent Appeals (LPAs) arising out of the
proceedings before the Debt Recovery Tribunal, New Delhi (for short
"DRT"). Maharaji Educational Trust (hereinafter referred to as "the
Educational Trust") had taken a loan of approximately Rs. 75 crores
from Housing & Urban Development Corporation Ltd. (for short
B
'HUDCO') and mortgaged properties Nos. l to 6. The Trust is running
several medical colleges, dental college and 700 bedded hospitals. Besides
3000 students are said to be getting education with 700 staff !Ilembers.
The Trust is running several other colleges. It is alleged that its worth is
more than Rs.12,000 crores. Proceedings were initiated in 2002 by
HUDCO for recovery against the Trust under the Recovery of Debts
C due to Banks and Financial Institutions Act, 1993 (hereinafter referred
to as "the Act of 1993"). Though the land was under mortgage with
HUDCO, the Trust had exchanged 21 acres of the mortgaged property
out of property No.6 with U.P. Avas Evam Vikas Parishad (hereinafter
referred to as "the Avas Parishad"). The exchange deed was executed
D on 4.5.2007. There was a dispute between the parties whether 21 acres
of land which has been obtained in exchange from Avas Parishad is to
be treated as mortgaged property or not. The application for recovery of
loan filed by HUDCO was allowed by the DRT-II on 3.6.2008.
3. An agreement to sell had been entered into by the Educational
Trust in favour of Mis. SGS Construction and Development (P) Ltd.
E (for short 'SGS Constructions') qua item No.6 of the property comprising
63.45 acres which also included 21 acres of the property obtained in
exchange from Avas Parishad. The agreement was entered into for a
consideration of Rs.154 crores out of which a sum of Rs.9.01 crores
was admittedly paid upfront which was deposited by Trust with HUDCO.
p
It was entered into to obtain money to wipe off dues of HUDCO. With
respect to specific performance of the agreement arbitration is pending
between.Educational Trust and SGS Constructions, interim injunction
had been passed by the arbitrator with the consent of Educational Trust
not to sell the property comprised in item No.6 which is the subject
matter of arbitration during its pendency. The order has attained finality.
G The arbitral tribunal had passed order on 15.1.2011. The Trust and its
Chainnan submitted an undertaking not to make any alienation for the
disputed land which was subject matter of arbitration. Accordingly, status
quo was ordered by the arbitrator which order is continuing to operate,
is not disputed at the Bar.
H
MAHARAJ! EDUCATIONAL TRUST v. HOUSING & URBAN
797
DEVELOPMENT CORPORATION LTD. [ARUN MISHRA, J.]
4. The DRAT, in appeal vide order dated 6.10.2010 had directed A
the Educational' Trust to pay Rs.50 crores per month to HUDCO till
recovery in toto. The DRAT noted in its order that borrower wanted to
settle the matter with HUDCO. In spite of taking time they did not do
so. It was also noted that the borrower had no intention to apply for one
time settlement at Rs.240 crores. Borrower wanted to pay Rs.240 crores
B
whereas HUDCO was claiming Rs.250 crores. However contrary to
that proposal was moved for one time settlement ofRs.75.07 crores. It
was noted that the borrower had no intention for applying OTS at Rs.240
crores. Authorities were misled. It was also observed by DRAT that the
action of borrower borders contempt of court due to lack of direct
evidence. Action under the Contempt of Courts Act or section 340 Cr.P. C.
C
had not b'een initiated. It was observed that the borrower required no
sympathy at all and the entire scene was created to take a few dates.
Accordingly, the order was passed to pay Rs.50 crores per month till full
realization. Thereafter, in case of default, immovable property be sold
and HUDCO may be permitted tu bring a better purchaser. The order D
of DRAT has not been complied with by the Educational Trust.
5. The title deed of the property which had been exchanged by
the Trust from Awas Parishad was deposited in 2011 with HUDCO. It
was also mentioned in the reply that status quo was directed to be
maintained by DRT on 26.8.2002 with respect to mortgaged property
which order was confirmed on 3.6.2008. The DRT's 'order to maintain
E
status quo had been violated by the Trust. In the appeal DRAT had
ordered payment of interest @ 16.5% on the amount of approximately
Rs.148 crores. Agreement to sell could not have been entered into by
the Trust. On I 9.5.2011 SGS Constructions preferred objections before
the Recovery Officer. On 3 .8.2011 it was submitted by SGS Constructions
F
that HUDCO admitted that the land obtained by the Educational Trust
under exchange deed dated 4.5.2007 was not mortgaged in its favour.
On 6.9.2011 Recovery Officer directed sale of remaining mortgaged
properties in RC No. 039/2011.
6. HUDCO issued demand notice on 19.9.2011 under section 13(2)
G
of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short 'SARFAESIAct'),
and also issued possession notice on 21.11.2011. The High Court of
Judicature at Allahabad in W.P. No.11669/2011 stayed further proceedings
H
798
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A in respect of agricultural land. In view of the interim order of High Court
vacant possession was restored to the Educational Trust. On 6.9.2011
Recovery Officer directed for sale of remaining mortgaged properties
from serial Nos. I to 5 vide orders dated 22.11.2011 and 9.1.2012.
On 25.1.2012 on the prayer made by the Educational J:rust,
B HUDCO was restrained from proceeding against 5 mortgaged properties.
HUDCO preferred miscellaneous appeal as against order before DRAT.
7. DRAT vide order dated 5.6.2013 while deciding the appeal
again.st order of Recovery Officer preferred by the Trust challenging
the attachment of their bank accounts directed Recovery Officer to
c decide the objections on merits and proceed against the bank accounts
in case the subject property was not sold within 6 months. On 25.6.2013
DRAT directed sale of agricultural land by HUDCO by way of private
treaty under the SARFAESI Act.
8. In the meantime SGS Constructions had paid stamp duty and
D got the agreement registered. On 25.9.2013 High Court of Allahabad
had passed an order in W.P. No.11669/2011 and directed status quo to
be maintained with respect to 21 acres of property which was obtained
in exchange by the Trust fromAvas Parishad. It was also clarified that
the order passed by the High Court shall not affect interim order passed
by the arbitrator directing maintenance of status quo. In the special leave
E ·petition which was preferred before this Court for quashing the said
order dated 25. 9.2013 this Court decided C.A. N os.4494-96/2015. This
Court noted that by the time of proceedings for recovery of debt, the
amount had amassed to more than Rs.433 crores under the SARFAESI
Act. -It was also noted that prayer had been made by SGS Constructions
F
that properties Nos.I to 5 be sold and not to sell property No.6 which
was subject matter of agreement. As the matter was pending before
DRT at Delhi, this Court opined that it was not for the High Court Bench
at Lucknow to declare the property as unencumbered and to direct
demarcation of 21 acres of land as unencumbered property as this
question was required to be decided by DRT where the objections of
G SGS Constructions were pending. Nor High Court could have decided
question ofaccession under section 70 of the Transfer of Property Act
(for short "TP Act") in writ jurisdiction. This Court also did not decide
the said question and set aside the order passed by Lucknow Bench of
the High Court of Allahabad on the ground that the matter which was
H
MAHARAJ! EDUCATIONAL TRUST v. HOUSING & URBAN
799
DEVELOPMENT CORPORATION LTD. [ARUN MISHRA, J.]
pending at DRT, Delhi could not have been agitated before Lucknow A
Bench. As the property was situated at Ghaziabad, Lucknow Bench
had no territorial jurisdiction to entertain the writ petition, this Court held
that order passed by the High Court was required to be set aside as no
cause of action had arisen at Lucknow. This Court also did not comment
on the validity of registration of agreement as writ petition (C) No.38596/
B
2013 in this regard was pending before High Court of Allahabad, and it
would be for High Court to adjudicate upon aforesaid questions. It is
apparent that this Court did not decide the various questions on merits
and the order of Lucknow Bench was set aside on the ground for want
of territorial jurisdiction only. No doubt about it that this Court commented
adversely upon the attempt to get questions adjudicated by the High
C
Court which were required to be dealt with in SARFAESI proceedings.
9. On 20.5.2015 in W.P. (C) No.2604/2013 High Court observed
that Recovery Officer would give due weightage to the mandate of
order dated 25.6.2013 passed by the appellate tribunal while deciding
objections pending before him. Before the Recovery Officer applications D
were filed which were dismissed on 1.7.2015. Division Bench of the
High Court of Delhi in LPA No.385/2015 on 1. 7.2015 directed Recovery
Officer to decide all the questions raised by a party before him in
accordance with law, uninfluenced by the observations made by Single
Judge in his order dated 20.5.2015.
·
10. As against the order dated 1.7.2015 appeal was preferred by
SGS Constructions before ORT on 3.7.2015. Appeal was dismissed on
10.7.2015. Howevervide order dated 13.7.2015 High Court in W.P. (C)
· N o.2604/2013 directed Recovery Officer to decide the objections keeping
E
in view issues involved in the case. On 14.7.2015 SGS Constructions
preferred an appeal against the order passed by ORT before DRAT. On
F
21.7.2015 High Court in W.P. (C) No.2604/2013 stayed the execution/
adjudicatory proceeding relating to objections pending before Recovery
Officer.
On 29.7.2015 SGS.Constructions preferred W.P. (C)'No.7261/
2015 for expeditious settlement of dispute between the parties and
G
indicated its willingness to clear the dues ofHUDCO.
11. The Educational Trust also filed W.P. No.4987/2016 before
the High Court challenging notice dated 26.4.2016 issued by HUDCO
proposing to classify the Educational Trust and its trustees as willful
H
800
SUPREME COURT REPORTS
[2017] 4 S.C.R.
A defaulters. Writ petition was disposed ofvide order dated 27.5.2016
with a direction that HUDCO after hearing the Educational Trust shall
take a decision on the matter on or before 30.6.2016. Time was extended
by 31.8.2016 on the prayer made by HUDCO in W.P. (C) No.4987/
2016. On 8.12.2016 HUDCO again moved an application. Further eight
B weeks' time was granted by the High Court to HUDCO to pass the
order. Ultimately, vide order dated30.1.2017 Trust had been declared as
wilful defaulter.
12. By impugned order dated 1.2.2017 High Court has directed
Recovery Officer to consider and decide objections raised by SGS
Constructions with regard to property No.6. The order of Recovery
C Officer dated 1.7.2015 as confirmed by DRT 0n 10.7.2015 and DRAT
by order dated 20.7.2015 were set aside and the applications filed by
SGS Constructions were allowed as prayed, for amendment of its
objections. High Court also observed that the DRT shall decide all pending
applications which are filed including the claim of SGS Constructions
D that property No.6 being an agricultural land is beyond the purview of
SARFAESI Act and pass an appropriate order. High Court further
directed status quo to be maintained in respect of property Nos. I to 6.
Aggrieved by the order, Educational Trust as well as SGS Constructions
preferred appeals in this Court.
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13. The Educational Trust in appeal has urged that SGS
Constructions has no right on the basis of agreement to sale dated
26.8.2010 and the property has been mortgaged to HUDCO. Agreementholder cannot raise any objection. Item No.6 of property should be sold
first for recovery of dues of HUDCO. High Court has erred in setting
aside orders dated 1.7.2015, 10.7.2015 and20.7.2015 passed by Recovery
F Officer, DRT and DRAT respectively. By setting aside orders the High
Court has protracted the process and prolonged the recoyery process.
High Court has erroneously held that under section 17 of SARFAESI
Act there is automatic protection against sale of property No.6. On the
basis of registered agreement no right could accrue to SGS Constructions
G and unilateral registration has been questioned in a writ petition pending
before the High Court of Allahabad. Right of HUDCO is paramount.
SGS Constructions cannot be permitted to contend that property No.6 is . ·
agricultural land. SGS Constructions had no locus to sustain its objections.
Futile writ petition was filed before Lucknow Bench, order passed in
which was set aside by this Court. The combined value of the properties
H
MAHARAJ! EDUCATIONAL TRUST v. HOlJSING & URBAN
801
DEVELOPMENT CORPORATION LTD. [ARUN MISHRA, J.]
items 1 to 6 of appellant is approximately Rs. l 000 crores and SGS
A
Constructions had offered a mere sum of Rs.400 crores under the garb
of clearing the dues of Educational Trust owed to HUDCO. The fetter
has been imposed by the High Court by impugned order. SGS
Constructions is trying to unsettle and dislodge the livelihood of various
individuals who are attached to running of medical college, dental college
B
and hospitals at property Nos. I to 5 and attempting to create hurdles in
education process of three thousand students getting education in medical
college, dental college and hospital. There are 700 employees working
in institutions running for the last 22 years. The Educational Trust is
suffering interest approximately Rs.2 crores per month. It would be in
the interest of public money that recovery proceedings take place at an
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early date. Value of property No.6 is approximately Rs.776 crores. That
should be first put to public auction to derive its best value.
14. SGS Constructions in the appeal filed has questioned the order
of High Court on the ground that the offer of settlement made by appellant
had not been taken into consideration. There is no decision rendered by D
the High Court on merits of the case and proposal for settlement would
have cleared entire dues of HUDCO which, in turn, has not taken
effective measures for recovery for a long period. The offer of appellant
is viable and would bring the dispute to a quietus and public money due
towards HUDCO shall also be recovered in the process. On the one
hand medical and dental colleges and hospital are being run but payment
is not being made. Medical college and other immovable property from
S.Nos.1 to 5 is subject matter of mortgage i.ie. non-agricultural property
and is liable to be sold under SARFAESI Act in recovery proceedings.
Agricultural land i.e. item No.6 cannot be sold under SARFAESI Act
and applying the principle of marshalling under section 56 ofTP Act,
SGS Constructions being agreement-holder has a right that property
Nos. I to 5 should be sold first and only ifthe dues are not satisfied item
No.6 of property to be sold and not otherwise.
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15. It was urged on behalfof Educational Trnst that only property
No.6 should be directed to be sold and the High Court has erred in
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passing impugned order. Right of marshalling of property under section
56 of TP Act cannot be exercised by SGS Constructions. It was also
submitted that the exchanged property has to be treated as accession to
property under the mortgage with HUDCO by virtue of provisions
contained in section 70 ofTP Act. Property which has been exchanged
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802.
SUPREME COURT REPORTS
[2017] 4 S.CR
A is thus liable to be sold and though arbitrator had passed an order of
maintenance of status quo,with respect to item No.6 of property, this
Court has ample power under Article 142 to vacate the order. The order
passed by arbitral tribunal should be vacated and this Court should direct
sale of property No.6 which is. worth Rs.776 crores and its sale would
B be enough to satisfy dues of HUDCO. It would not be appropriate to
direct sale uf property NosJ to S as prayed by SGS Constructions, as
that would disturb running of medical and dental colleges and hospitaL It
would be detrimental to the interest of the education oflarge number of
students as well as employees.
16. It was submitted on behalf of Trust that this Court has also
C commented adversely on filing of petition before the Lucknow Bench
by SGS Constructions the order passed was held to be without jurisdiction.
Agreement was not duly stamped and registered as required in State of
UP. It was stamped and got registered unilaterally. Its registration has
been questioned before High Court of Allahabad. Thus on the basis of
D such agreement no right accrued to SGS Constructions. The amount of
Rs.9 crores had been paid under the agreement The Trust is ready to
refund a sum ofRs27 crores to,it as such this Court should direct sale
of property item No.6 so as to satisfy dues ofHUDCO.
17. It was urged on behalf of SGS Constructions that in view of
E order passed by arbitral tribunal for maintaining status quo, property
item No.6 cannot be sold. The Trust and its Managing Director had
submitted undertaking before Arbitral TribunaL Apart from that it being
an agricultural land property cannot be sold under SARFAESl Act. In
addition thereto agreement-holder has a right under section 56 of TP
Act of marshalling of property that is to say property which is subject
F
matter of agreement and arbitra!'proceedings should be sold by mortgagee
only when by sale of other properties dues of HUDCO are not satisfied.
Property item No.6 is subject matter of agreement as matter is sub
judice before arbitral tribunal cannot be sold at this stage. Only that
portion of mortgaged property can be sold later on which is necessary
G for satisfying dues ofHUDCO, only if an outstanding amount remains
and its dues are not satisfied by sale of property Nos. I to S after decision
of arbitral tribunal. Apart from that it was submitted that property which
had been exchanged i.e. 21 acres from Avas Parishad could not be said
to be an accession to property within the purview of section 70 of TP
Act. It is an unencumbered property as the property 21 acres which
H
MAHARAJ! EDUCATIONAL TRUST v. HOUSING & URBAN
803
DEVELOPMENT CORPORATION LTD. [ARUN MISHRA, J.]
was in fact mortgaged had been given by Educational Trust to Avas
A
Parishad in an illegal manner. Thus the property which was under
mortgage could not have been exchanged and property which was given
to Avas Parishad by Educational Trust continues to be under mortgage
with HUDCO which would have first right-on it. Thus property which
has been given by Avas Parishad in exchange after acquisition of land
8
was unencumbered and not under mortgage, it cannot be said to be an
encumbered property thus cannot be sold for satisfying the dues of the
Trust as the agreement to sale has been entered into by Trust with SGS
Constructions Ltd., with respect to 63 acres which includes 21 acres of
unencumbered property. The conduct of the Educational Trust has been
noted by DRAT, it has never intended to settle dues in spite of running C
institutions and possessing assets of more than Rs.12,000 crores and is a
willful defaulter bound to pay the whopping money, it has taken the huge
amount from SGS Constructions also and now wants to resile from its
obligation. SGS Constructions is ready to clear dues of HUDCO by
purchasing property Nos. 1 to 6 which offer ought to have been D
considered on merits by High Court. Educational Trust is running chain
of other educational institutions but is not making payment and is a wilful
defaulter.
18. It was submitted on behalf of HUDCO that proceedings are
collusive between SGS Constructions as well as the Educational Trust.
Nobody intends to pay public money and HUDCO be permitted to sell
E
property, in particular item No.6 so as to realize the dues.
19. When the matter came to this Court on earlier occasion this
Court had set aside the order passed by Lucknow Bench of Allahabad
High Court on the ground that it had no territorial jurisdiction to entertain
the writ application with respect to matter of ORT at Delhi and property
situated at Ghaziabad, as such the main seat at Allahabad could have
entertained the petition. It could not have been entertained by Lucknow
Bench of said High Court for want ofterritorial jurisdiction. This Court
did not decide the question as to accession under section 70 and left it
open for DRT and attempt which was made by SGS Constructions to
demarcate 21 acres of land as unencumbered property was also set
aside on the ground of territorial jurisdiction and that this was the matter
to be decided not by High Court but it was required to be decided in the
proceeding~ of the DRT.
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20. The Educational Trust is running various institutions and
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804
SUPREME COURT REPORTS
[2017) 4 S.C.R.
A hospitals but at the same time it is not making payment of dues of loan
amount to HUDCO by which money it established them. The DRAT in
its order dated 6.10.2010 in Appeal Nos. 120/2008 and 124/2008 has
noted conduct of Trust and recorded the following findings :
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c
D
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F
G
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"74. From the above said facts and circumstances the following
points emerge:
(b) Before HUDCO they moved OTS for Rs .240 crores whereas
HUDCO was claiming Rs.250 crores or more. However, the
Court was informed that OTS was for Rs.75.07 crores only. The
earlier OTS moved for Rs.80 to 90 crores had found no favour
with the HUDCO authorities. How it could have agreed to the
proposal of Rs.75.07 crores only. Even after I heard the final
arguments, the borrowers moved yet one more application for not
announcing the judgment as they wanted to settle the matter with
HUDCO. I gave them 15 days more time. It transpired that they
had again made proposal in the sum of Rs.75.07 crores. It is
apparent that the borrowers want to bid for time on one pretext or
the other. In this respect mala fides are writ large on them.
( e) At best, it can be said that the borrowers had no intention to
apply for OTS at Rs.240 crores. The authorities were, however,
misled. Meeting of minds is the sine qua non of an agreement
coercion, force, misrepresentation, fraud or anything of the like
have no place at all. Although, the action of the borrowers borders
the contempt of court, yet due to lack of mens rea, lack of proper
and direct evidence not touching the heart of the problem, it would
not be worthwhile to initiate action under the Contempt of Courts
Act or under Section 340 Cr.P.C.
(f) However, at the same time, the conduct, misrepresentation
and bizarre behaviour of the borrowers cannot be swept undefthe carpet. It is very easy to gauge into antecedents of borrowers
particulars that of Dr. Mahalingam who is responsible and liable
for admitted interpolations and alterations. Can allegations against
Mr. Naresh Chandra and two/ three officers of HUDCO without
being substantiated by any cogent and plausible evidence come to
the rescue of the borrowers? All these facts and circumstances
will be put in the scales of Justice and their pros and cons would
be evaluated as per law. One fact is clear that the borrowers
MAHARAJ! EDUCATIONAL TRUST v. HOUSING & URBAN
805
DEVELOPMENT CORPORATION LTD. [ARUN MISHRA, J.]
deserve no sympathy at all. Since all these drama was created to
A
take a few dates, therefore, instead of taking action under the
Contempt of Court Act and Section 340 Cr.P.C. it would be
worthwhile to come to the main point anJ action be initiated
accordingly."
21. It is apparent from averments made by the Trust itself that it
B
has more than 700 employees and 3000 students are taking education
but it is shocking and surprising that the amount due to HUDCO taken
as loan in 1995 is not being paid which has amassed to approximately
Rs.480 crores at present.
22. It is also apparent that there are several rounds of litigation in c
spite of order of DRAT with respect to loan amount having attained
finality, is not being honoured for recovery which proceedings under the
' SARFAESIAct had also been initiated by HUDCO but sans any result.
The hist01y of the case as projected clearly indicates that it has virtually
become impossible to realize the dues owing to various litigations pending
and filed by parties or some other third persons.
D
23. It is not disputed at the Bar with respect to item No.6 the
arbitral tribunal had passed an order on the basis of an undertaking given
by Trust and its Managing Director, for directing maintenance of status
quo, and the said order has not been vacated and it has not been questioned
by any of the parties. Oral prayer has been made to this Court in course
E
of arguments to vacate the same in exercise of power under Article 142
of the Constitution of India. However as the interim order of arbitral
tribunal has not been questioned before us in any proceedings, it would
not be appropriate to vacate the interim order in the absence of it being
challenged. It appears that on one hand the Educational Trust is trying to
convey that property No.6 be sold first at the same time it has undertaken
not to do so before arbitral tribunal and not questioned the order of arbitral
tribunal rather has consented to order of arbitral tribunal that property
No.6 not be sold. Parties are expected not to blow hot and cold. Conduct
F
is unfair and inconsistent and indicative of dilly- dallying tactics on the
part of the Educational Trust. However, there is yet another aspect that
G
HUDCO is not bound by interim order of arbitral tribunal to the extent
of approximately 43 acres of property comprised in Item No.6 and it
would have first charge on said mortgaged property, hence, it is permitted
to sale 43 acres ofland initially mortgaged with it by Educational Trust.
Remaining 21 acres of land obtained in exchange was unencumbered H
806
SUPREME COURT REPORTS
[2017) 4 S.C.R.
A and cannot be said to be accession for reasons mentioned hereinafter.
24. However at the same time it appears that in spite of having
means, ninning colleges and hospital the Educational Trust is not paying
the amount to HUDCO and the Educational Trust has been declared as
willful defaulter by HUDCO as per order dat.ed 30.1.2017. It is necessary
B to safeguard the interest of HUDCO. Even after the order of DRAT,
the Educational Trust has not cleared the long pending dues ofHUDCO.
As observed by DRAT, the Trust is not paying the amount in spite of
having been given the facility of making payment in instalments. It would
not be appropriate to expect HUDCO to wait till eternity. In view of the
order passed by appellate tribunal, it would be open to HUDCO to sell
C 43 acres of initially mortgaged land comprised in Item No.6 and other
mortgaged properties No. I to 5 and which had been mortgaged by the
Educational Trust to HUDCO. However as medical colleges, dental
college and hospitals are running and Educational Trust is obviously
earning from them, cannot claim that the mortgaged property cannot be
D sold. However before sale we deem it appropriate to give one more
opportunity to the Educational Trust to make payment to HUDCO. We
deem it appropriate to direct HUDCO as well as the Trust to make an
endeavour to settle the amount within a period of one month and the
amount which may be settled between the parties be paid within a period
E as may be mutually agreed.