Delhi High Court - Orders
Mohd. Arsad vs Capri Global Capital Ltd on 29 November, 2021
Author: Prateek Jalan
Bench: Prateek Jalan
$~94 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13472/2021
MOHD. ARSAD ..... Petitioner
Through: Mr. Shailendra Ojha, Advocate.
versus
CAPRI GLOBAL CAPITAL LTD. ..... Respondent
Through: Mr. Shobhit Jain, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 29.11.2021 The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].
CM APPL. 42477/2021 (for exemption) Exemption allowed, subject to all just exceptions. This application stands disposed of.
W.P.(C) 13472/2021 & CM APPL. 42480/2021 (for stay)
1. Issue notice. Mr. Shobhit Jain, learned counsel, accepts notice on behalf of respondent- Capri Global Capital Ltd.
2. The petitioner assails various measures taken by the respondent against the petitioner's property (Shop No. 4, Ground Floor, Part of Municipal No. 146 (old) and 356(new), Ward No. II, Situated at Kucha Ghasi Ram, Chandni Chowk, Delhi-110006) ["the property"] under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ["SARFAESI Act"].
Signature Not Verified Digitally signed By:SHITUNAGPAL W.P.(C)13472/2021 Signing Date:30.11.2021 17:06:05 Page 1 of 4
3. The petitioner took two loans of approximately ₹ 25 lakhs and approximately ₹ 9 lakhs from the respondent. He received a notice dated 31.05.2021 by which the respondent demanded a sum of approximately ₹ 26.48 lakhs in respect of the aforesaid loan accounts. A notice for symbolic possession was issued by the respondent under Section 13(4) of the SARFAESI Act on 11.08.2021. The respondent thereafter approached the Chief Metropolitan Magistrate ["CMM"] under Section 14 of the SARFAESI Act and the CMM, vide order dated 16.09.2021, appointed a Receiver to take physical possession of the petitioner's property. The admitted position is that physical possession of the property has been taken on 22.10.2021.
4. Although filing of the proceedings before the DRT-III, Delhi is not mentioned in the writ petition, Mr. Shailendra Ojha, learned counsel for the petitioner, states that, against the aforesaid measures, the petitioner has filed proceedings under Section 17 of the SARFAESI Act (SA No. 309/2021) before the Debts Recovery Tribunal ["DRT"] -III, Delhi.
5. As the DRTs in Delhi are at present not functional for want of Presiding Officers, this Court has had occasion to consider several similar petitions and has taken a view that it would be preferable to enable the parties to invoke their statutory remedies under Section 17 of the SARFAESI Act, rather than to entertain writ petitions against measures taken under the SARFAESI Act. Such a position, in my view, is consistent with the judgment of the Supreme Court in United Bank of India vs. Satyawati Tondon and Others (2010) 8 SCC 110 which cautions against writ petitions being entertained where statutory remedies under the SARFAESI Act can be made available.
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6. With this objective, this Court has also transferred proceedings to a functional DRT in exercise of its provisions of Section 17(7) of the SARFAESI Act read with Section 17A(2) of the Recovery of Debts and Bankruptcy Act ["RDB Act"], 1993.
7. In the present case, however, the possession of the property has already been taken on 22.10.2021. The petitioner was first subjected to measures under Section 13(4) of the SARFAESI Act by the respondent's notice of symbolic possession dated 11.08.2021. Against these measures, the petitioner has filed proceedings before the DRT-III, Delhi, only on 11.11.2021. The DRT, Jaipur is the only functional DRT within the jurisdiction of the Debts Recovery Appellate Tribunal ["DRAT"], Delhi, to which proceedings can be transferred under Section 17A(2) of the RDB Act. I have also been informed in connected proceedings that the process of appointment of Presiding Officer(s) for DRTs in Delhi is at an advanced stage. The question, as to whether additional charge of the DRTs in Delhi can be vested in another Tribunal in accordance with law, is also under consideration.
8. In view of the above, I do not consider it appropriate to transfer the present proceedings to DRT, Jaipur at this stage. The writ petition is disposed of with the following directions:-
a. The petitioner is at liberty to seek expeditious disposal of the proceedings by the DRT-III, Delhi when the DRT resumes functioning either by appointment of a Presiding Officer in the regular course or by assignment of additional charge. b. In the event the petitioner receives notice of any other measure to be taken under the SARFAESI Act, the same may be brought to the Signature Not Verified Digitally signed By:SHITU NAGPAL W.P.(C)13472/2021 Signing Date:30.11.2021 17:06:05 Page 3 of 4 notice of DRT, and the DRT is requested to consider the petitioner's request for expeditious disposal, in the light of such notice.
c. In the event the petitioner's property is subjected to further measures under the SARFAESI Act, and no arrangements, either regular or by way of additional charge are made for DRT-III, Delhi, the petitioner may approach the DRAT or this Court at that stage for transfer of proceedings to a functional DRT or any such other relief, as he may be entitled to in law.
9. The writ petition, alongwith the pending application, is disposed of in these terms.
PRATEEK JALAN, J
NOVEMBER 29, 2021
'vp'/
Signature Not Verified
Digitally signed By:SHITU
NAGPAL W.P.(C)13472/2021
Signing Date:30.11.2021
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