Delhi High Court - Orders
Dalip Kumar Saluja & Anr vs Piramal Capital And Housing Finance ... on 2 February, 2023
Author: Najmi Waziri
Bench: Najmi Waziri, Sudhir Kumar Jain
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1385/2023
DALIP KUMAR SALUJA & ANR. ..... Petitioners
Through: Mr. Sanjeev Dubey, Sr. Advocate
with Ms. Sunanda Tulsyan, Mr.
Arnav Pal Singh, Nr. Akhil and Ms.
Niharika, Advocates.
versus
PIRAMAL CAPITAL AND HOUSING FINANCE LIMITED &
ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
ORDER
% 02.02.2023 The hearing has been conducted through hybrid mode (physical and virtual hearing).
CM APPL. 5166/2023 (exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed-off.
W.P.(C) 1385/2023 & CM APPL. 5165/2023 (ex-parte ad interim relief)
3. The petitioners impugn the order dated 01.02.2023 passed by the learned Debt Recovery Appellate Tribunal, ('DRAT'), Delhi in Regular Appeal No.22/2023 arising out of the S.A. No.35 of 2023, dismissing the petitioners' appeal against the order passed by the Debt Recovery Tribunal-II ('DRT') dated 23.01.2023 whereby the property Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 1 of 9 KUMAR Signing Date:07.02.2023 18:27:14 purchased by the petitioners, of which they are in physical possession, is sought to be taken over by R-1 through a Receiver, for the benefit of recovery of loan amounts taken by one Sh. Satinder Singh Nijahwan from DHFL (former name of R-1), for purchase of the property bearing Plot No. M-61, Ground Floor, Village Basai Darapur, Block- M, Kirti Nagar, New Delhi-110015. Subsequently, the borrower, Sh. Satinder Singh Nijahwan (since deceased) sold this property to the present petitioners. The borrower defaulted in repayment of the loan amount. However, repayment of the loan itself was covered by an insurance cover. Details of the premium for the said cover having been paid is reproduced hereunder:-
Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 2 of 9 KUMAR Signing Date:07.02.2023 18:27:14 Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 3 of 9KUMAR Signing Date:07.02.2023 18:27:14 Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 4 of 9 KUMAR Signing Date:07.02.2023 18:27:14 Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 5 of 9 KUMAR Signing Date:07.02.2023 18:27:14
4. Two premium amounts of Rs.5,35,216/- and Rs.2,62,668/- were deducted towards insurance premium costs from the loaned amount. The signatures of the borrower is on the loan documents. The borrower has since passed away. The orders of the DRT and the DRAT have occasioned the property to be taken over by the Receiver and for the same to be subsequently appropriated towards setting-off the outstanding loan amount, which has now totalled up to Rs.1.16 crores. Albeit, the petitioners had offered to deposit an amount of Rs.20 lacs by 02.02.2023 and to approach the lender for settlement of the loan amount, the same was not found acceptable to the latter.
5. The impugned order has recorded that the petitioners had purchased the property with notice, i.e. of it carrying first charge of the lender. The petitioners say that the seller (since deceased) had: i) shown them an NOC from the lender, ii) therefore they invested their monies for purchase of the said property and iii) that 90% of the sale consideration, approximately Rs.90 lacs, was paid through a bank transaction. The entire sale consideration in terms of the Agreement to Sell has been paid. It subsequently came to the notice of the petitioners that the NOC was forged. Therefore, they immediately registered a complaint with the police on 07.10.2021.
6. The learned Senior Counsel for the petitioners submits that insofar as the impugned order of the DRAT has rejected the aforesaid contentions of the petitioners, on the ground that no right had been transferred/conferred to them under the Agreement to Sell, the order has erred in law because the Agreement to Sell gives the purchaser a Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 6 of 9 KUMAR Signing Date:07.02.2023 18:27:14 right to sue for specific performance of the agreement, to the effect that the property could well be transferred in the name of the purchaser, albeit with a rider that it carried prior mortgage/charge; so the right would not be absolute but the property could well be transferred in the name of the purchaser. He refers to the dicta of this court in Jageshwar Prashad Sharma vs. Raghunath Rai, 2012 (5) ILR (Del) 205 which reads inter alia, as under:
"15. Further, a prior mortgage does not constitute a bar to granting a decree for specific performance. Being an encumbrance, the mortgage would attach itself and the mortgagee creditor's options can never be limited or diminished. The mortgagee's right to foreclosure would be as regards the property, not the debtor. There is thus no legal bar, or any principle in equity constituting a vendor mortgagor's right to enter into agreements, to sell such mortgaged property, even if the vendee is made aware of the prior charge. It has been held in Raghunath Vs. J.P. Sharma AIR 1999 Del 383 and R. Velammal Vs. R. Daya Siga Mani AIR 1993 Mad 100 that prior mortgage or encumbrance cannot deprive the vendee of a right to decree for specific performance and that such mortgage only became a liability or encumbrance to the property which the subsequent purchaser has to satisfy. This aspect was correctly decided by the impugned judgment in the following terms:
"63. Assuming that an equitable mortgage had been created by defendant No. 1 in favor of defendant No. 2 as alleged. Equitable mortgage had not extinguished the rights of defendant No.1 in the property. He had still interest and could sell the property with or without encumbrance. In this case he had agreed to transfer it without any encumbrance. The agreement to sell for this reason is not null and void. The plaintiffs being the purchasers for valuable consideration under the agreement to sell have right to claim specific performance and as such have locus standi to file the Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 7 of 9 KUMAR Signing Date:07.02.2023 18:27:14 present suit. This issue is decided against defendants."
Apart from the above aspects, no other argument was made on behalf of the appellant to challenge the impugned judgment."
7. Furthermore, in a similar case in Kashish Uppal & Anr. Vs. Shriram Housing Finance Ltd. & Anr. (FAO (OS) (COMM) 141/2022) a Coordinate Division Bench held on 30.05.2022 that where repayment of a housing loan was insured, the amount would be recoverable from the insurer. The aforenoted insurance cover was evidently taken by the seller now deceased, so as to ensure that in the event of his passing away, the repayment liabilities would not be visited upon his family/heirs/successors.
8. Let an amount of Rs.20 lacs be deposited by the petitioners with the Registrar General of this court within four working days to be kept in an interest bearing FDR.
9. In view of the above, the impugned order dated 23.01.2023 passed by the DRT and the order dated 01.02.2023 passed by the DRAT along with all proceedings pursuant thereto are hereby stayed till further orders.
10.Issue notice to the respondents through Speed Post, approved courier, e-mail, WhatsApp, SMS, Signal, and such other forms of electronic service as may be viable, through counsel as well, returnable on 02.03.2023.
Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 8 of 9 KUMAR Signing Date:07.02.2023 18:27:1411.The Registry is directed to correct the cause title of the case as per Memo of Parties.
NAJMI WAZIRI, J SUDHIR KUMAR JAIN, J FEBRUARY 2, 2023/rd Signature Not Verified Digitally Signed By:KAMLESH W.P.(C) 1385/2023 Page 9 of 9 KUMAR Signing Date:07.02.2023 18:27:14