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Pramod Kumar Kansal vs Iifl Home Finance Ltd on 7 December, 2021

Author: Prateek Jalan

Bench: Prateek Jalan

                          $~96 (2021 Cause List)
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      W.P.(C) 11917/2021

                                 PRAMOD KUMAR KANSAL                     ..... Petitioner
                                            Through: Ms. Ekta Choudhary, Advocate

                                                            versus

                                 IIFL HOME FINANCE LTD.                    ..... Respondent
                                               Through: Mr. Pallav Saxena, Advocate
                                                        [Mob. 9811159376]

                          CORAM:
                          HON'BLE MR. JUSTICE PRATEEK JALAN

                                               ORDER

% 07.12.2021 The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].

CM APPL. 43950/2021 (delay)

1. This application has been filed by the petitioner seeking condonation of delay in deposit of the amounts directed by the order of this Court dated 22.10.2021.

2. Ms. Ekta Choudhary, learned counsel for the petitioner, submits that the entire amount directed by this Court has been deposited, albeit belatedly. Mr. Pallav Saxena, learned counsel for the respondent, accepts that the deposit amount of ₹5 lakhs in terms of the order dated 22.10.2021 has been received by the respondent.

3. For the reasons stated, the delay is condoned and the application is disposed of.

W.P.(C) 11917/2021

1. Although the writ petition is not on board today, having heard learned counsel for the parties, I am of the view that the petition itself can be disposed of. It is taken on board with the consent of learned counsel for the parties.

2. The challenge in this petition is to an order dated 27.09.2021 passed by the learned Chief Metropolitan Magistrate at the instance of the respondent under Section 14(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 [hereinafter, "SARFAESI Act"] at the instance of the respondent.

3. Ms. Choudhary states that the petitioner has already filed a securitisation application before the Debts Recovery Tribunal ["DRT"]- III, Delhi, under Diary No. 214 dated 20.10.2021. As the DRTs in Delhi are, at present, non-functional for want of Presiding Officers, the petitioner has been compelled to approach this Court under Article 226 of the Constitution.

4. Ms. Choudhary states that the petitioner, who is an electrician by profession, wishes to liquidate the loan account with the respondent, but requires some time for the same. Mr. Saxena states that the respondent is also agreeable to discussing a proposal for regularization of the account or liquidation of the entire amount.

5. In such circumstances, instead of entertaining the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ["SARFAESI Act"] on merits, I am of the view that it would be preferable to enable the parties to agitate their statutory remedies.

6. As all the DRTs and the Debts Recovery Appellate Tribunal ["DRAT"] are non-functional, this Court has had occasion to consider similar petitions and has taken the view that it is preferable to enable the parties to approach the statutory tribunal rather to entertain writ petitions on merits. I am of the view that this is consistent with the settled jurisprudence of the Supreme Court relating to maintainability of writ petitions against measures under the SARFAESI Act including inter alia the judgment of the Supreme Court in United Bank of India vs. Satyawati Tandon and Others (2010) 8 SCC 110 and Authorized Officer, State Bank of Travancore and Another vs. Mathew K.C. (2018) 3 SCC 85 [paragraphs 5, 9 to 15], and the recent judgment in C. Bright vs. District Collector and Others (2021) 2 SCC 392 [paragraph 22]. With this objective, in appropriate cases, this Court has also transferred proceedings pending before the DRTs in Delhi to a functional DRT within the jurisdiction of the DRAT, Delhi on grounds of urgency, invoking the provisions of Section 17(7) of the SARFAESI Act and 17A(2) of the Recovery of Debts and Bankruptcy Act, 1993.

7. For the aforesaid reasons, the writ petition, alongwith the pending application, is disposed of with the following directions:

a. The Receiver appointed by the order of the Chief Metropolitan Magistrate dated 27.09.2021 is directed to defer the proceedings for taking possession of the petitioner's property [D-442 out of Khasra No. 436 situated at Village Ghonda Gujran Khadar Gali No. 9, Bhajanpura, Shahdara, Delhi-53] until 31.01.2022. b. Ms. Choudhary states that the petitioner will deposit further instalments of ₹1 lakh each with the respondent on 27.12.2021, Signature Not Verified Digitally signed W.P.(C) 11917/2021 Page 3 of 4 By:SHITU NAGPAL Signing Date:08.12.2021 11:59:23 10.01.2022 & 28.01.2022.

c. The parties are at liberty to agitate their respective cases before the DRT in the petitioner's pending securitization application. d. The parties may move the DRT for expeditious hearing, at least on the question of interim relief, upon a Presiding Officer taking charge of the DRT or entrustment of charge to any other officer. e. In the event the DRT-III, Delhi is still non-functional as on 15.01.2022, the petitioner will be at liberty to move Debts Recovery Appellate Tribunal or this Court for transfer of the proceedings to a functional DRT or for such orders as he may be entitled to in law.

8. It is made clear that this Court has not entered into the merits of the petitioner's case.

9. The next date, i.e. 12.01.2022 is cancelled.

PRATEEK JALAN, J DECEMBER 7, 2021 'hkaur' / Signature Not Verified Digitally signed W.P.(C) 11917/2021 Page 4 of 4 By:SHITU NAGPAL Signing Date:08.12.2021 11:59:23