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Mrs Gurshara Kaur Bhatia & Anr vs Housing Development Finance ... on 8 December, 2021

Author: Amit Bansal

Bench: Amit Bansal

                          $~16
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CM(M) 1121/2021
                                 MRS GURSHARA KAUR BHATIA & ANR.        ..... Petitioners
                                             Through: Mr. Arun Nischal, Advocate.

                                                    versus

                              HOUSING DEVELOPMENT FINANCE
                              CORPORATION LTD HDFC                           ..... Respondent
                                                Through: Mr. Rishabh Sahu, Advocate with Mr.
                                                            Ashok, Authorised Representative of
                                                            HDFC.
                              CORAM:
                              HON'BLE MR. JUSTICE AMIT BANSAL
                                          ORDER

% 08.12.2021 CM No. 44105/2021 (for exemption)

1. Allowed, subject to all just exceptions.

2. The application is disposed of.

CM(M) 1121/2021 & CM No. 44104/2021 (for stay)

3. The present petition under Article 227 of the Constitution of India seeks to restrain the respondent from dispossessing the petitioner of the property bearing No. 301, 3rd Floor, Block-A, Pocket-3, DDA, Sector-8, Rohini, Delhi-110085 in terms of the possession notice dated 29th November, 2021 received from the Court appointed receiver, seeking to take possession of the said property on 10th December, 2021 at 12.30 PM.

4. The counsel for the petitioner states that a Securitisation Application (SA) under Section 17 of the SARFAESI Act has already been filed on 3rd December, 2021 before Debt Recovery Tribunal (DRT)-III. However, the Signature Not Verified Digitally Signed CM(M) 1121/2021 Page 1 of 3 By:MAMTA ARYA Signing Date:08.12.2021 17:55:11 same could not be taken up for hearing as the said DRT is not functional. Therefore, the petitioners are constrained to approach this Court by way of present petition.

5. Counsel for the petitioner submits that the petitioner lost his job in March, 2020, which resulted in defaults in the EMIs payable under the loan accounts. He further submits that even after receipt of the notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) a sum of Rs.8,00,000/- has been paid by the petitioner to the respondent in the year 2021 itself, as detailed on page 17 of the petition.

6. The counsel appearing on behalf of the respondent on advance notice submits that the petitioner has been a regular defaulter and many defaults have been committed even before the COVID-19 pandemic.

7. Both parties admit that as on date, the overdue amount in respect of EMIs defaulted by the petitioners is Rs.7,77,474/-.

8. The present petition is being entertained only on account of non- functioning of the Debt Recovery Tribunals in Delhi and the urgency of the relief sought.

9. Having heard the counsels for the parties and taking into account the facts and circumstances of the case, it is directed that there shall be a stay of the possession notice dated 29th November, 2021, subject to the petitioners depositing a sum of Rs.7,77,474/- with the respondent.

10. The payment of the aforesaid amount shall be in the following manner:

(i) a sum of Rs.1,50,000/- shall be deposited on or before 13th December, 2021;

(ii) a sum of Rs.1,50,000/- shall be deposited on or before 23rd December, 2021;

(iii) a sum of Rs.1,50,000/- shall be deposited on or before 31st December, 2021;

(iv) a further sum of Rs.1,50,000/- shall be deposited on or before 15th January, 2022; and,

(v) remaining sum of Rs.1,77,474/- shall be deposited on or before 31st January, 2022.

11. The counsel for petitioners also submits that the petitioners shall pay regular EMIs with effect from January, 2022.

12. It is clarified that if there is a default in the aforesaid payment schedule, the stay order shall automatically stand vacated and the respondent would be free to act in terms of the impugned possession notice dated 29 th November, 2021 without any further recourse to this Court.

13. The aforesaid directions have been made as an interim arrangement on account of the non-functioning of the DRT. The SA filed by the petitioner before the DRT shall be considered by the DRT as and when the DRT becomes functional. Needless to state, the SA filed by the petitioner would be considered by the DRT, uninfluenced by any observations made in this order.

14. The present petition is disposed of in above terms.

AMIT BANSAL, J DECEMBER 8, 2021 Sakshi R. Signature Not Verified Digitally Signed CM(M) 1121/2021 Page 3 of 3 By:MAMTA ARYA Signing Date:08.12.2021 17:55:11