Delhi High Court - Orders
Relief) Indu Kapoor vs Au Small Finance Bank & Anr on 22 November, 2021
Author: Prateek Jalan
Bench: Prateek Jalan
$~2543 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13059/2021 with CM APPL. 41193/2021(for interim
relief)
INDU KAPOOR ..... Petitioner
Through: Mr. Gaurav Srivastava, Advocate.
versus
AU SMALL FINANCE BANK & ANR. ..... Respondents
Through: Mr. Samarendra Kumar, Advocate
for R-1/A U Small Finance Bank
Ltd.
Mr. Anupam Srivastava, ASC for
GNCTD with Mr. Shikher Goel,
Advocates for R-3/SDM, Dwarka.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 22.11.2021 The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].
1. Further to the order dated 18.11.2021, the Government of NCT of Delhi has filed a Status Report. The relevant extracts of the report are as follows: -.
2. Kanungo was unable to locate the property situated in Chanakya Place for want for proper address. The colony is Chanakya Place is situated about 100 meters away from Sitapuri.
3. That upon physical inspection of property bearing no. RZD-29 C Sitapuri it was found that on site property is approximately of the size of 50 sq yds and is a four storey building. Ground floor of this property is used for residential Signature Not Verified Digitally signed By:SHITU NAGPAL Signing Date:23.11.2021 10:33:59 W.P.(C) 13059/2021 Page 1 of 4 purpose while first, second and third floors are used for work relating to cutting, tailoring and packing. Photographs taken from GPS camera at the site are attached with this report.
4. The property situated at RZD-29 C Sitapuri matches with the photographs annexed in the mail forward from the Shri Samrender Kumar and pictures filed in the writ petition.
2. Learned counsel for the petitioner and the AU Small Finance Bank ["the Bank"] maintain their submissions as recorded in the order dated 18.11.2021 with regard to the identity of the mortgaged property and the petitioner's property. From the Report of the Sub-Divisional Magistrate ["SDM"], Dwarka, it appears that the colony Chanakya Place (which is mentioned in the description of the mortgaged property) is situated about 100 meters away from Sitapuri (which is mentioned in the title documents of the petitioner). It appears that the SDM was unable to locate the Chanakya Place property. However, the SDM has also recorded that the physical inspection of the property shows that it is the same property as mentioned in the Valuation Report upon which the Bank relied at the time of creation of the mortgage in 2019.
3. Mr. Samarendra Kumar, learned counsel for the Bank, disputes that Chanakya Place and Sitapuri are situated at a distance of 100 meters from each other. His submission is that the entire property was earlier part of Chanakya Place, out of which a portion was conveyed to the respondent No. 2 herein, and the address in the title documents was mentioned as Sitapuri. These factual disputes require determination even after the report of the SDM, as his report is not conclusive, so as to enable resolution of the issue by the writ court. With regard to such factual Signature Not Verified Digitally signed By:SHITU NAGPAL Signing Date:23.11.2021 10:33:59 W.P.(C) 13059/2021 Page 2 of 4 disputes between the parties, I am of the view that the determination would more appropriately be made by the Debts Recovery Tribunal ["DRT"] rather than by this Court in its writ jurisdiction.
4. For the reasons aforesaid, the writ petition is disposed of with the following directions: -
a. The Securitization Application of the petitioner under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, filed vide Diary No. 231/2021 dated 16.11.2021 before the DRT-I, Delhi is transferred to the DRT-Jaipur. b. The Registrar, DRT-I, Delhi, is directed to transmit the records to the DRT, Jaipur.
c. Mr. Gaurav Srivastava, learned counsel for the petitioner, is also directed to co-ordinate with the Registrar, DRT, Jaipur to transmit the digital records of the aforesaid case directly to the DRT, Jaipur, if so permitted.
d. The proceedings be listed before the DRT, Jaipur on 26.11.2021 at 02:00 PM for directions/hearing. The DRT, Jaipur will permit the parties to appear online [through video conferencing], if they so request.
e. The DRT, Jaipur is directed to hear the petitioner's case, at least on the question of interim relief, and pass appropriate orders as expeditiously as possible, and latest by 03.12.2021. f. Subject to any orders passed by the DRT, Jaipur, in terms of the aforesaid directions, the Receiver appointed by the order of the learned Chief Metropolitan Magistrate dated Signature Not Verified Digitally signed By:SHITU NAGPAL Signing Date:23.11.2021 10:33:59 W.P.(C) 13059/2021 Page 3 of 4 11.10.2021 is directed to defer the proceedings of possession of the property until 06.12.2021 at 12:00 noon. The Receiver will not be required to issue any further notice to the petitioner for taking possession of the property subject to the orders passed by the DRT, Jaipur in terms of this order. g. The petitioner is directed not to create any third-party interests in the title or possession of the property, and to maintain status quo with regard to the character of the property.
h. Having regard to the fact that the controversy concerns the identity of the property itself, no deposit is directed at this stage.
5. It is made clear that this Court has not entered into the merits of the petitioner's case, which are to be decided by the DRT in accordance with law.
6. Learned counsel for the parties are at liberty to communicate this order to the Receiver.
7. The writ petition, alongwith the pending application, is disposed of with these directions.
PRATEEK JALAN, J NOVEMBER 22, 2021 'bp' Signature Not Verified Digitally signed By:SHITU NAGPAL Signing Date:23.11.2021 10:33:59 W.P.(C) 13059/2021 Page 4 of 4