Delhi High Court - Orders
M S R K Computer & Ors vs Canara Bank on 24 November, 2021
Author: Prateek Jalan
Bench: Prateek Jalan
$~221 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13231/2021
M S R K COMPUTER & ORS. ..... Petitioners
Through: Mr. Manu Sharma & Mr.Suhail
Hasan, Advocates.
versus
CANARA BANK ..... Respondent
Through: Mr. Santosh Kumar Rout,
Advocate.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 24.11.2021 The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].
CM APPL. 41765/2021(exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of.
W.P.(C) 13231/2021 & CM APPL. 41764/2021(stay)
1. Issue notice. Mr. Santosh Kumar Rout, learned counsel, accepts notice on behalf of the respondent- Canara Bank ["the Bank"].
2. The petitioner has approached this Court against an order dated 23.10.2021 passed by the Chief Metropolitan Magistrate ["CMM"] under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ["SARFAESI Act"], on Signature Not Verified SHITU W.P.(C) 13231/2021 Page 1 of 4 NAGPAL the application of the Bank. By the said order, the CMM appointed a Receiver over the petitioner's property [Shop No. 115, First Floor, DDA Market, Pocket D and E, Sarita Vihar, New Delhi-110076, area measuring 17.19 sq. meter], which was held as security for a loan taken by the petitioner no. 2. The Receiver has also issued notice dated 30.10.2021 intending to take possession of the property today i.e. 24.11.2021 at 12:30 PM. At the outset, Mr. Manu Sharma, learned counsel for the petitioner states that the petitioner has been unable to approach the Debts Recovery Tribunal ["DRT"] under Section 17 of the SARFAESI Act as the petitioner no. 3, who is the wife of the petitioner no. 2, suffered a heart attack and was hospitalised earlier in November, 2021.
3. The Bank issued notice under Section 13(2) of the SARFAESI Act dated 03.04.2021 calling upon the borrowers to pay sum of approximately ₹ 18 lakhs as on that date. In view of the petitioners' failure to make the payment, the Bank approached the CMM under Section 14 of the Act, and the impugned measures have been taken under the SARFAESI Act.
4. The petitioner has been compelled to approach this Court under Article 226 of the Constitution as all the DRTs in Delhi as well as the Debts Recovery Appellate Tribunal ["DRAT"] are without Presiding Officers. This Court has had occasion to consider several similar petitions and has taken a view that it is preferable to enable the borrower to permit borrowers to avail their statutory remedies under Section 17 of the SARFAESI Act rather than to entertain the petitions under Article 226 of the Constitution merits. In similar circumstances, this Court has also transfer proceedings from the DRTs in Delhi to the DRT in Jaipur, which Signature Not Verified SHITU W.P.(C) 13231/2021 Page 2 of 4 NAGPAL is the only functional DRT within the jurisdiction of the DRAT, Delhi so that the parties can be heard by the statutory tribunal.
5. In the present case, Mr. Rout states that the total dues under the loans in question is approximately ₹ 20 lakh out of which a sum of ₹ 2 lakhs is overdue. Having regard to the relatively small amounts involved and that the DRT, Jaipur is the only functional DRT within the jurisdiction of the DRAT, Delhi, I am of the view that the appropriate course would be to defer the possession of the property upon the petitioner's making a without prejudice deposit towards liquidation of the loan. I have also been informed in other similar matters that the process of appointment of Presiding Officers in the DRTs in Delhi and the learned Chairperson of the DRAT, Delhi are at an advance stage.
6. For the reasons aforesaid, the Bank is directed to defer the proceedings for taking possession of the property until 24.12.2021 upon the petitioners' depositing the following sum:-
i. A sum of ₹ 1 lakh by tomorrow i.e. 25.11.2021. ii. A further sum of ₹ 1 lakh by 29.11.2021. iii. A further sum of ₹ 2 lakh by 17.12.2021.
7. The Receiver is not required to give any further notice to the petitioners for taking possession of the property on 24.12.2021 in accordance with this order.
8. The aforesaid deposit will be made and accepted without prejudice to the rights and contentions of the parties, and will be subject to the order to be passed in proceedings instituted by the petitioners under Section 17 of the SARFAESI Act.
9. The Petitioners are at liberty to institute proceedings under Section Signature Not Verified SHITU W.P.(C) 13231/2021 Page 3 of 4 NAGPAL 17 of the SARFAESI Act within one week from today.
10. Upon appointment of the Presiding Officer in the concerned DRT, or assignment of the charge to another DRT, the Petitioners may approach the DRT for expeditious hearing of their petition, at least for the purpose of interim relief. DRT is requested to consider the request in the light of the aforesaid timeline. In the event, the office of the Presiding Officer of the concerned DRT remains vacant until 17.12.2021, the petitioners will be at liberty to approach the DRAT or this Court for transfer of the proceedings to a functional DRT or for such other relief, as they may be entitled to take in accordance with law.
11. If the petitioners fails to deposit any of the aforesaid instalments, the Receiver will be entitled to take possession of the property upon 48 hours' notice to the petitioners.
12. The writ petition, alongwith pending application, stand disposed of with these directions.
PRATEEK JALAN, J NOVEMBER 24, 2021 'pv'/ Signature Not Verified SHITU W.P.(C) 13231/2021 Page 4 of 4 NAGPAL