Delhi High Court - Orders
Shammi Kumar & Ors vs Iifl Home Finance Ltd on 22 November, 2021
Author: Prateek Jalan
Bench: Prateek Jalan
$~2549 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13112/2021
SHAMMI KUMAR & ORS. ..... Petitioners
Through: Mr. Gaurav Arora, Advocate.
versus
IIFL HOME FINANCE LTD ..... Respondent
Through: Mr. Pallav Saxena and Ms. Bindu
Das, Advocates for R-1.
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].
CM APPL. 41348/2021 (for exemption) Exemption allowed, subject to all just exceptions. This application stands disposed of.
W.P.(C) 13112/2021 & CM APPL. 41347/2021 (for stay)
1. Issue notice. Mr. Pallav Saxena, learned counsel, accepts notice on behalf of the respondent-IIFL Home Finance Ltd ["IIFL"].
2. The petitioners assail measures taken by IIFL under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ["SARFAESI Act"] in respect of their property [8A, 1st 2nd Floors, Mahindra Park, Pankha Road, Uttam Nagar, Signature Not Verified Digitally signed By:SHITU NAGPAL Signing Date:23.11.2021 10:54:55 W.P.(C)13112/2021 Page 1 of 3 Delhi-110049] ["the property"].
3. IIFL has issued a notice under Section 13(2) of the SARFAESI Act dated 22.06.2021, claiming a sum of approximately ₹ 27.47 lakhs from the petitioners on account of a loan taken by them against security of the property. By a notice dated 16.09.2021 under Section 13(4) of the SARFAESI Act, IIFL has also taken symbolic possession of the property. The petitioners have assailed these measures by way of proceedings under Section 17 of the SARFAESI Act [being Securitisation Application No. 273/2021], pending before Debts Recovery Tribunal ["DRT"]-I, Delhi. However, as the DRTs in Delhi are presently without Presiding Officers, the petitioners have been compelled to approach this Court under Article 226 of the Constitution.
4. As all the DRTs and Debts Recovery Appellate Tribunal ["DRAT"] in Delhi are, at present, non-functional, this Court has had occasion to consider several similar petitions and has taken the view that it is generally preferable to enable the parties to agitate their statutory remedies rather than to entertain writ petitions challenging measures under the SARFAESI Act. Reference may be made in this connection, by way of example, to orders dated 10.11.2021 in W.P.(C) 12125/2021 [Shrim Industries And Ors. vs. Bank of Baroda And Anr.] and W.P.(C) 12595/2021 [Smt. Kamlesh vs. Indian Overseas Bank].
5. However, in the present case, as the proceedings for physical possession of the property have not yet been taken, it is not necessary, at this stage, to transfer petition to the DRT, Jaipur, which is the only functional DRT within the jurisdiction of the DRAT, Delhi. Mr. Pallav Saxena, learned counsel for IIFL, states that notice of at least 15 days' Signature Not Verified Digitally signed By:SHITU NAGPAL Signing Date:23.11.2021 10:54:55 W.P.(C)13112/2021 Page 2 of 3 will be given to the petitioners prior to physical possession of the property being taken.
6. In these circumstances, the writ petition, alongwith the pending application, is disposed of with the following directions:-
a. IIFL is directed to give at least 15 days' notice to the petitioners before taking physical possession of the property. b. The petitioners will be at liberty to approach the DRT-I, Delhi for expeditious hearing of their application, at least on the question of interim relief, upon appointment of the Presiding Officer. c. The DRT is requested to consider the petitioners' application for expeditious hearing, keeping in mind the schedule for physical possession.
d. In the event, the Presiding Officer has not taken charge before the notice for physical possession is issued, the petitioners will be at liberty to approach the DRAT or this Court for transfer of proceedings or such other relief, as they may be entitled in law.
PRATEEK JALAN, J NOVEMBER 22, 2021 'vp' Signature Not Verified Digitally signed By:SHITU NAGPAL Signing Date:23.11.2021 10:54:55 W.P.(C)13112/2021 Page 3 of 3