Delhi High Court - Orders
Kashish Uppal & Anr vs Shriram Housing Finance Ltd & Anr on 30 May, 2022
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva, Tushar Rao Gedela
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) (COMM) 141/2022
KASHISH UPPAL & ANR. ..... Appellant
Through: Mr. Ankur Mahindroo, Mr. Adhirath
Singh, Mr. Syed Fazl Askari and Ms.
Gaswini Rohtagi, Advocates.
versus
SHRIRAM HOUSING FINANCE LTD & ANR. ..... Respondent
Through: Ms. Usha Singh, Advocate for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
ORDER
% 30.05.2022 CM APPL. 26164/2022 Exemption is allowed, subject to all just exceptions.
FAO(OS) (COMM) 141/2022 & CM APPL. 26163/2022
1. Appellants impugn order dated 25.05.2022 to the extent that it dismisses the application of the appellants under Order 39 Rules 1 & CPC holding that the remedy of the appellant is under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) and not by way of a civil suit.
2. Appellants alongwith late Sh. Arun Uppal, father of appellant No.1 and husband of appellant No.2 had applied for business loans from respondent No.1. Alongwith the facility, the appellants and Sh. Arun Uppal took out an insurance cover to secure repayment of the loans.
Signature Not Verified Digital Signed By:KUNAL MAGGUSigning Date:31.05.2022 15:20:56 FAO(OS) (COMM) 141-2022 1 This file is digitally signed by PS to HMJ Sanjeev Sachdeva.
3. It is contended by learned counsel for appellants that the purpose of taking insurance cover was that in case anything were to happen to late Sh. Arun Uppal, the liability would not fall upon his legal heirs i.e., the appellants. The premium for the said insurance cover was also paid and adjusted as part of the loan amount.
4. Learned counsel for the appellants submits that respondent No.2 was introduced to the appellants by respondent No.1 as they have a tie up with respondent No.2 and a group insurance is taken for all such loans.
5. It is contended that the appellants did not receive copy of the insurance policy and repeatedly requested the respondent No.1 for furnishing a copy of the policy. He submits that the copy of the policy documents were received only on 15.01.2021, which showed that there was an error in the age of the insured, Sh. Arun Uppal. It is submitted that immediately thereafter, a mail was written by Sh. Arun Uppal for correction of the policy document.
6. Learned counsel submits that Sh. Arun Uppal contracted COVID and unfortunately expired on 25.04.2021.
7. Learned counsel submits that the revised loan documents were sent to the appellants wherein, it transpired that instead of correcting the age of the insured, the name of the insured itself was changed and instead of Sh. Arun Uppal, appellant No.1 was mentioned as the insured.
8. Learned counsel submits that since the entire loan was taken by Sh. Arun Uppal and premium was being deducted from his account, there was no question of the legal heirs being insured and Sh. Arun Uppal being the beneficiary whereas, the purpose of taking the cover was that in case Signature Not Verified Digital Signed By:KUNAL MAGGU Signing Date:31.05.2022 15:20:56 FAO(OS) (COMM) 141-2022 2 This file is digitally signed by PS to HMJ Sanjeev Sachdeva.
anything were to happen Sh. Arun Uppal, the liability would not fall upon the appellants.
9. Learned counsel submits that instead of respondent No.1 recovering the insured amount from respondent No.2, it has initiated proceedings to take possession from the appellants of the subject mortgaged property.
10. He submits that a fraud has been committed on the appellants and Sh. Arun Uppal and the DRT is not empowered to consider the issue with regard to a fraud having been played.
11. Issue notice. Notice is accepted by learned counsel for respondent No.1.
12. Notice shall issue to respondent No.2, returnable on 18.07.2022.
13. Learned counsel for respondent No.1 submits that respondent No.1 is a financial institution and has instituted proceedings under the SARFAESI Act for the purposes of recovery of its money.
14. Prima facies, we are of the view that since the loan was covered by respondent No.2, respondent No.2 should be liable to cover the repayment to the respondent No.1. Even otherwise, the whole purpose of taking an insurance cover was to cater for such an eventuality which has happened in the present case.
15. Consequently, we are of the view that the appellants have a strong prima facie case and have made out a case for grant of an ad-interim injunction. Balance of convenience is also in favour of the appellants and in case ad-interim injunction is not granted at this stage, irreparable loss and injury are likely to be caused to the appellants.
Signature Not Verified Digital Signed By:KUNAL MAGGUSigning Date:31.05.2022 15:20:56 FAO(OS) (COMM) 141-2022 3 This file is digitally signed by PS to HMJ Sanjeev Sachdeva.
16. Consequently, respondent No.1 shall maintain status quo with regard to the possession and title of the subject property till the next date of hearing. However, the appellants are also restrained from selling or alienating the property or transferring the physical possession thereof till the next date of hearing.
17. Dasti under signature of the Court Master.
SANJEEV SACHDEVA, J TUSHAR RAO GEDELA, J MAY 30, 2022 NA Signature Not Verified Digital Signed By:KUNAL MAGGU Signing Date:31.05.2022 15:20:56 FAO(OS) (COMM) 141-2022 4 This file is digitally signed by PS to HMJ Sanjeev Sachdeva.