Delhi HC allows interim reoccupation to the debtor of property securitized by the bank, due to nationwide Lockdown

IN THE HIGH COURT OF DELHI AT NEW DELHI  

Date of decision: 9th April, 2020  

W.P.(C) 2958/2020

 AJAY KUMAR….. PETITIONER

Through: Mr. Neeraj Shrama, Adv.

Versus

 IIFL HOME FINANCE LTD. ……RESPONDENT

The Debt Recovery Tribunal (DRT) vide the impugned order, in view of the grave situation triumphing within the United States with reference to Covid19 and taking a lenient view, directed recovery of ownership of two floorings (out of five floorings existing in the properties) viz. The ground floor and second-floor difficulty to deposit with the aid of the petitioner of Rs.6 lacs via the subsequent day and of a 3rd ground difficulty to the petitioner depositing another sum of Rs.4 lacs, with the respondent. However, the primary and fourth floors have been ordered to remain in the possession of the respondent till entire outstanding payment, of approximately Rs. Sixty-five lacs have been paid by the petitioner to the respondent.

Through: Mr Ram Kumar & Ms Bindu Das, Advs. with Mr Ram Sharma, Attorney of the Respondent Mr Neeraj Sharma, counsel for the candidate has argued that,

(I) The petitioner alongside his better half Manisha Kumar and three minor kids were living on the first floor of the property;

(II) That different floors of the property were used by the tenants of the petitioner;

(III) That the petitioner, his family members alongside the occupants and their family since 19th March 2020, when they were confiscated, are staying in a one-room house in Rohini, Delhi; and,

(IV) The petitioner pleads to this Court to, in one month of the lifting of the lockdown, whether absolutely or partial to settle with the respondent and pay the whole settlement to add up to the respondent and looks for consent to the petitioner, his family, the tenants and their families too, for current time period reoccupy the property.

Ms Bindu Das, Advocate for the respondent alongside Mr Ram Sharma, Attorney of the respondent has battled that:

(a) The petitioner is occupied with the business of educational institutes and coaching classes;

(b) That the petitioner blamed for a case of leaking examination paper and has also gone in custody for quite a while;

 (c) The petitioner has made bogus guarantees in the past;

 (d) The study loan was taken by the petitioner and educational institutes and coaching classes  which was managed by both petitioner and  by Mrs Manisha Kumar wife of the petitioner who in reality is the owner of the property 

(e) The petition under Section 17 of the DRT Act [1]before the DRT is misconstrued for non-impleadment of the mortgager Mrs Manisha Kumar;

 (f) The respondent has no issue with the petitioner and others in control of the property expelling their family articles from the property;

(g) The petitioner is now in default of the concession allowed by the DRT and isn’t qualified for any further concession; and,

(h) As against a measure of Rs.6 lacs, the petitioner has paid uniquely about Rs.3,48,000/ – to the respondent.

JUDGEMENT

The court stated that the petitioner and his wife Mrs Manisha Kumar are ordered to be bound thereby and are informed through Counsel Mr Neeraj Sharma of the consequences of the breach of an undertaking given to the Court. The court directed as under:

• The petitioner Ajay Kumar and his wife Mrs Manisha Kumar to occupy the first floor of the property bearing no.75 & 76, Block G, Pocket-26 Sector-3, Rohini, Delhi-110085 under orders aforesaid of this Court and as custodians on behalf of the Court that the respondent immediately permits;
•  To permit the other occupants of the property to take out their belongings from the other portions of the aforesaid property on any day and time of their choice and make it clear that once they have so taken out the belongings, they shall be left with no claims against the respondent; and,
•  If the petitioner and his wife Mrs Manisha Kumar along with their three minor children do not follow the undertaking, the respondent shall be entitled to take all steps in continuation of the earlier action under Section 14 of the SARFAESI Act[2] for removing the petitioner, his wife and children from the said first floor and to use reasonable force for the said purpose and/or to initiate proceedings for breach of the undertaking given to the Court by the petitioner and his wife.

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[1] Section 17 in The Recovery of Debts Due to Banks and Financial Institutions Act, 1993

17. Jurisdiction, powers and authority of Tribunals.— (1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. (2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act.

[2] 14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.— (1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured assets is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him— (a) take possession of such asset and documents relating thereto; and (b) forward such assets and documents to the secured creditor. (2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate of the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate has done in pursuance of this section shall be called in question in any court or before any authority.