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Sunita Devi vs Iifl Home Finance Ltd & Anr on 27 October, 2021

Author: Prateek Jalan

Bench: Prateek Jalan

                          $~136 (2021 Cause List)
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      W.P.(C) 12164/2021

                                 SUNITA DEVI                                         ..... Petitioner
                                                    Through:     Mr. Prashant Singh Yadav, Adv.

                                                            versus

                                 IIFL HOME FINANCE LTD & ANR.            ..... Respondents
                                               Through: Ms. Bindu Das, Adv. for R-1.

                          CORAM:
                          HON'BLE MR. JUSTICE PRATEEK JALAN
                                       ORDER

% 27.10.2021 The proceedings in the matter have been conducted through video conferencing.

CM APPL. 37932/2021(exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of.

W.P.(C) 12164/2021 & CM APPL. 37931/2021(stay)

1. The petitioner seeks recourse against an order dated 03.09.2021 passed by the learned Chief Metropolitan Magistrate under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ["SARFAESI Act"] at the instance of the respondent no.1-IIFL Home Finance Ltd. ["IIFL"]. By the impugned order, the learned CMM appointed a Receiver to take over the possession of the property of the petitioner [Plot No.A-4, First Floor, Front Side, Area Measuring 133 Sq. Yds., Out of Khasra No. 46, Situted Signature Not Verified Digitally Signed W.P.(C) 12164/2021 Page 1 of 4 By:SHITU NAGPAL Signing Date:27.10.2021 23:05:12 in the Revenue Estate of Village Binda Pur, Subhash Park, Uttam Nagar, Delhi-110059]. The learned Receiver appointed by the CMM has given a notice dated 05.10.2021, proposing to take over possession of the property in question today, i.e. 27.10.2021 at 11:00 AM.

2. According to the petitioner, she has approached the Debts Recovery Tribunal ["DRT"] under Section 17 of the SARFAESI Act, but her petition is not being taken up for hearing for want of Presiding Officers in all the DRTs in Delhi. It is in these circumstances that the petitioner has been compelled to approach this Court under Article 226 of the Constitution, and the writ petition is being entertained only for this reason.

3. It has been brought to the notice of the Court in several matters that the DRTs in Delhi are at present without Presiding Officers and this Court had, in fact, in these circumstances entertained several petitions under Article 226. However, I have been informed that in respect of urgent matters filed before the DRTs in Delhi, parties can also approach the Chairperson of the Debts Recovery Appellate Tribunal ["DRAT"] under Section 17(7) of the SARFAESI Act read with Section 17A(2) of the Recovery of Debts and Bankruptcy Act, 1993 for transfer of their petitions to another DRT within the jurisdiction of the DRAT. A copy of the order dated 13.10.2021 passed by DRAT in Misc. Application No. 97/2021 arising out of S.A. No. 86/2020 has also been brought to my attention, wherein proceedings were transferred from the DRT-I, Delhi to the DRT, Jaipur on the ground of urgency.

4. Mr. Prashant Singh Yadav, learned counsel for the petitioner, submits that the petitioner will invoke the aforesaid procedure in this case Signature Not Verified Digitally Signed W.P.(C) 12164/2021 Page 2 of 4 By:SHITU NAGPAL Signing Date:27.10.2021 23:05:12 also. As the possession of the property is scheduled to be taken today, Mr. Yadav seeks some interim protection. He states that the mortgage was entered into by the respondent no. 2, from whom the petitioner has subsequently purchased the property in question on the strength of a general power of attorney. He emphasis that the petitioner is neither the borrower nor the guarantor in respect of the loan in question.

5. Ms. Bindu Das, learned counsel for respondent no.1-IIFL, who appears on advance notice, states that the dues to be claimed by the respondent no.1 in respect of the mortgaged property today stand at approximately ₹24 lakhs.

6. In view of the fact that the statutory remedy is available to the petitioner, as stated above, I am of the view that the appropriate course is for the petitioner to avail of the said remedy, rather than for this Court to entertain this petition under Article 226 of the Constitution. Having regard to the submissions recorded above, the Receiver appointed in terms of the order of the CMM dated 03.09.2021 is directed to defer the proceedings for possession of the property in question until 22.11.2021, subject to the petitioner depositing a sum of ₹2 lakhs with the respondent no.1 by 15.11.2021. The deposit may be made and accepted without prejudice to the rights and contentions of the parties. The petitioner is directed to maintain status quo in the meantime regarding the title, possession and character of the said property. Subject to any orders that may be passed by the DRT/DRAT in the proceedings instituted by the petitioner, the Receiver will not be required to give any further notice to the petitioner for taking possession of the property on 22.11.2021 at 2.30 PM.

7. The DRAT and the DRT are requested to consider the petitioner's application expeditiously keeping the aforesaid schedule in mind.

8. This Court has not entered into the merits of the controversy between the parties, and this order has been passed only to enable the petitioner to avail of her statutory remedies.

9. The writ petition, alongwith the pending application, stands disposed of.

PRATEEK JALAN, J OCTOBER 27, 2021 'pv' Signature Not Verified Digitally Signed W.P.(C) 12164/2021 Page 4 of 4 By:SHITU NAGPAL Signing Date:27.10.2021 23:05:12