Delhi High Court - Orders
Anchal Chauhan & Ors vs Iifl Home Finance Limited & Ors on 18 November, 2021
Author: Amit Bansal
Bench: Amit Bansal
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1038/2021
ANCHAL CHAUHAN & ORS. ..... Petitioners
Through: Mr. J.C. Mahindro & Mr. Shubham
Agarwal, Advocates.
versus
IIFL HOME FINANCE LIMITED & ORS. ..... Respondents
Through: Mr. Pallav Saxena, Advocate with
Ms. Bindu Das, Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 18.11.2021 [VIA VIDEO CONFERENCING] CM No.40990/2021(for exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
CM(M) 1038/2021 & CM No.40991/2021(for stay)
3. The present petition under Article 227 of the Constitution of India challenges the possession notice dated 28th October, 2021 issued by the respondents in terms of Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) in terms of which the respondent no.2 seeks to take possession of the property being Plot No.T-24, Block T, Khasra No.20, Village Bindarpur, Uttam Nagar, New Delhi-110059, of which petitioner claims to be the owner of the third floor.
4. Possession is sought to be taken today itself.
Signature Not Verified Signed By:ARUNA KANWAR CM(M) 1038/2021 Page 1 of 3 Signing Date:19.11.2021 23:32:085. Counsel for the petitioners submits that the petitioners are the legal heirs of the person who had purchased the property from the borrower/ mortgager who is the respondent no. 3 herein and the factum of the mortgage was concealed from them. He further submits that at the time the property was mortgaged, the third floor in the property did not exist.
6. Counsel appearing on behalf of the respondents no. 1 on advance notice submits that as on date, a sum of Rs. 21 lacs are payable to the respondent no. 1 from the respondent no. 3 (borrower). He further submits that the possession notice was issued as far back as on 29th November, 2019 and the father of the petitioners had filed Securitization Application (SA) before the Debts Recovery Tribunal- 1, Delhi, (DRT), and no stay has been granted therein. The said SA is still pending before the DRT-1, Delhi.
7. He states that if there is an elevation in the property after creation of the mortgage, in terms of Section 48 of the Transfer of Property Act, 1882, the same would travel with the mortgage and only recourse of the subsequent purchaser would be against the mortgager.
8. Counsel for the petitioners submits that the DRT in Delhi is not operational for want of Presiding Officer, hence the petitioner is constrained to approach this Court under Article 227 of the Constitution of India.
9. The present petition is being entertained only on account of non- functioning of the Debt Recovery Tribunals in Delhi.
10. Issue notice.
11. Notice is accepted on behalf of the respondent no.1. Let notice be issued to other respondents.
12. Subject to the petitioner no.1 making a payment of Rs.5 lakhs to the respondent no.1 within a period of one week from today, there shall be stay Signature Not Verified Signed By:ARUNA KANWAR CM(M) 1038/2021 Page 2 of 3 Signing Date:19.11.2021 23:32:08 on the operation of the possession notice dated 28th October, 2021 only in respect of Third Floor of property situated at Plot No.T-24, Block T, Khasra No.20, Village Bindarpur, Uttam Nagar, New Delhi-110059, of which the petitioner claims ownership.
13. The petitioner no.1 shall file an undertaking before this Court within four days to make the aforesaid payment within the stipulated time as directed. The consequences of breach of the aforesaid undertaking have been explained to the petitioners through counsel.
14. It is clarified that in the event the aforesaid amount is not paid within the stipulated period, the stay given by this Court shall stand automatically vacated and the respondent no.2 would be free to act in terms of the impugned possession notice dated 28th October, 2021 without any further recourse to this Court.
15. The aforesaid directions have been passed as an interim arrangement only on account of the non-functioning of the DRT. In the meanwhile, the SA filed by the petitioners before the DRT shall be taken up for consideration by the DRT as and when the DRT becomes functional. Needless to state, the SA shall be considered by DRT uninfluenced by any observation made in this order.
16. List on 10th December, 2021.
AMIT BANSAL, J NOVEMBER 18, 2021 ak Signature Not Verified Signed By:ARUNA KANWAR CM(M) 1038/2021 Page 3 of 3 Signing Date:19.11.2021 23:32:08