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Sunil Jain vs Diwan Housing Finance Corporation Ltd on 10 December, 2021

Author: Amit Bansal

Bench: Amit Bansal

                          $~26
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +     CM(M) 1139/2021

                                SUNIL JAIN                                       ..... Petitioner
                                                    Through:     Mr. Anand Aggarwal, Advocate.

                                                    versus

                                DIWAN HOUSING FINANCE
                                CORPORATION LTD.                      ..... Respondent
                                             Through: Mr. Mukul Bhimani, Advocate.

                                CORAM:
                                HON'BLE MR. JUSTICE AMIT BANSAL

                                         ORDER

% 10.12.2021 CM Nos.44558-44559/2021 (both for exemption)

1. Allowed, subject to all just exceptions.

2. The applications are disposed of.

CM(M) 1139/2021 and CM No.44557/2021 (for stay)

3. The present petition under Article 227 of the Constitution of India impugns the order dated 20th September, 2021 passed by the Chief Metropolitan Magistrate, North East District, Karkardooma Courts, Delhi, a copy of which is not on file, and the impugned notice dated 17th November, 2021 issued by the Court appointed Receiver for taking physical possession of the petitioner's property no. IX/1891, Plot no. 22, Third Floor, Gali No. 3, Khasra No. 8, 9, 11 to 16 and 128 Kailash Nagar, Gandhi Nagar, Shahdara, Delhi -92 on 13th December, 2021 at 12:30 PM.

4. The counsel for the petitioner states he had taken a housing loan of Signature Not Verified Digitally Signed CM(M) 1139/2021 Page 1 of 4 By:MAMTA ARYA Signing Date:10.12.2021 18:03:20 Rs.20,18,762/- in 2018 and on account of the COVID-19 pandemic and other circumstances, he has defaulted in the payment of the EMIs due to the respondent. He further submits that the petitioner was regularly making payments till August, 2019.

5. The counsel appearing on behalf of respondent on advance notice submits that symbolic possession under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 has already been taken in October, 2020. He submits that as on date, the outstanding amount towards the payment of the EMIs is Rs.5,66,944/-.

6. The counsel for the petitioner submits that the Securitization Application (SA) has already been filed before the Debt Recovery Tribunal (DRT)-II, Delhi and which is pending. He further submits that after receiving the impugned possession notice, an interim application has also been filed in the aforesaid SA, however the same could not be taken up for hearing on account of the said DRT not being functional. Accordingly, the petitioner is constrained to approach this Court by way of the present petition.

7. The present petition is being entertained only on account of the non- functioning of the DRT and the urgency of the relief sought.

8. Issue notice.

9. Notice is accepted by the counsel for the respondent.

10. Subject to the petitioner paying to the respondent the total outstanding amount towards the payment of the EMIs totalling Rs.5,66,944/- in the manner indicated below, there shall be a stay of the possession notice dated 17th November, 2021:

(i) Rs.1,00,000/- shall be paid by the petitioner to the respondent on or before 13th December, 2021;

(ii) Rs.2,00,000/- shall be paid by the petitioner to the respondent on or before 31st December, 2021; and

(iii) Balance amount of Rs.2,66,944/- shall be paid by the petitioner to the respondent on or before 31st January, 2022.

11. An undertaking with regard to the aforesaid payment shall be filed by the petitioner Sunil Jain within two days from today. Consequences of breach of the undertaking have been explained through the counsel appearing on behalf of the petitioner.

12. It is made clear that if there is a default in the aforesaid payment schedule/undertaking, the stay order passed by this Court today shall automatically stand vacated and the Court appointed Receiver would be free to act in terms of the impugned possession notice dated 17th November, 2021, without any further recourse to this Court.

13. The petition and pending application stand disposed of in the above terms.

14. The aforesaid directions have been passed as an interim arrangement only on account of the non-functioning of the DRT. The SA and the interim application filed by the petitioner before the DRT shall be taken up for consideration as and when the said DRT becomes functional, uninfluenced by any observations made in this order. The stay of the impugned possession notice dated 17th November, 2021 shall remain in operation till the SA/interim application filed on behalf of the petitioner is taken up for consideration by the DRT and shall be subject to orders that may be passed by the DRT.

15. The counsel for the petitioner may approach the respondent for regularization of the loan account after the aforesaid payments are made.

AMIT BANSAL, J.

DECEMBER 10, 2021 dk Signature Not Verified Digitally Signed CM(M) 1139/2021 Page 4 of 4 By:MAMTA ARYA Signing Date:10.12.2021 18:03:20