Final Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF RASHMI GUPTA,
CHIEF JUDICIAL MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI.
MA No. 172/2024
In Re:
SHUBHAM HOUSING DEVELOPMENT FINANCE CO. LTD.
Having its Registered Office at:
608-609, 6th floor, block-C,
Ansal Imperial Tower, Communcity Centre,
Naraina Vihar, New Delhi-110028
Corporate and Communication Address:
Shubham House,
425, Udyog Vihar, Phase-IV,
Gurgaon-122015 ( Haryana) and
its branch office amongst others at
C-51, First Floor, Sector-2,
Noida, 201302, UP.
Through its Authorized Signatory
Sh. Pradeep Kumar Shukla
… Secured Creditor / Applicant
Versus
1. Mr. Chetanya Prakash
S/o Mr. Ram Kishan Singh,
Ambey Public School,
Gali No. 59/60, B- Block,
Sant Nagar, Near Dal Godam,
North Delhi, Delhi-110084
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Also at:
Built Up Upper Ground Floor,
Left hand back side, without roof rights,
out of khasra no. 11/21, Gali No. 2,
Block-B, Kamalpur Mazra, Burari,
West Sant Nagar,
Delhi-110084
2. Mrs. Geeta
W/o Mr. Chetanya Prakash,
Ambey Public School,
Gali No. 59/60, B- Block,
Sant Nagar, Near Dal Godam,
North Delhi, Delhi-110084
Also at:
Built Up Upper Ground Floor,
Left hand back side, without roof rights,
out of khasra no. 11/21, Gali No. 2,
Block-B, Kamalpur Mazra, Burari,
West Sant Nagar,
Delhi-110084
Also at:
H. No. 2328, Block B, Gali No. 64 A,
Sant Nagar Burari, Near Mother Dairy,
North, Delhi-110084.
… Respondents
ORDER ON APPLICATION FILED UNDER SECTION 14(1) OF
SECURITISATION AND RECONSTRUCTION OF FINANCIAL
ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002.
13.08.2024
Present: Ld. Counsel for the applicant along with AR Sh. Pradeep
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Kumar Shukla.
Original documents seen and returned.
1. The present is an application filed under section 14 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI Act), which has since been
amended vide the Enforcement of Security Interest and Recovery of Debts
Laws and Miscellaneous Provisions (Amendment) Act, 2016 (12.08.2016).
A request has been made for change of AR and fresh affidavit of the new
AR has been filed on behalf of applicant. The oral request for change of AR
is allowed in view of order of Hon’ble High Court of Delhi dated
12.05.2022 in O.M.P ( EFA), (COMM.) 05/2021 ( relied upon by the
applicant) and the fresh affidavit is taken on record.
2. The petitioner being a secured creditor seeks assistance of the
undersigned in taking possession and control of the secured asset, which is
stated to be within the territorial jurisdiction of the undersigned. The
respondents are stated to be the borrowers/guarantors/mortgagors within
the contemplation of SARFAESI Act. It is submitted that the property as
mentioned in the application is a secured asset upon which security interest
was created by the borrowers to secure repayment of the financial
assistance extended by the petitioner/applicant. The borrowers committed
default in repayment of the financial assistance and their account was
classified as non-performing asset. Subsequently, statutory notice in writing
under section 13(2) of SARFAESI Act was served upon the borrowers
requiring them to discharge their liability in full within sixty days, also
detailing the amount payable and the secured assets intended to be enforced
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in the event of non-payment of secured debts.
3. It has been informed that despite service of notice, no objection or
representation was received by the petitioner from anyone. However, the
borrowers have failed to make the payment despite lapse of stipulated
period.
4. It is then submitted that there is no stay by any competent court or
forum in favour of the respondents.
5. It may be noted that the property is stated to be in possession of the
borrowers / guarantors and not in favour of any lessee (under any valid or
invalid or doubtful lease) or any other person.
6. After insertion of Section 17(4A) which provides that DRT has
powers to decide the claims of tenancy or leasehold rights over a secured
asset, CMM has no jurisdiction to go into the question as to who is
presently in physical possession of the property in question. Reliance being
placed on the judgment passed by the Hon'ble High Court of Delhi in
Cholamandalam Investment and Finance Company Limited vs. Rajeev
Chawla & Anr. dated 22.10.2021.
7. The original documents have been perused as mentioned in the
application and as supported by the affidavit as required by the first proviso
to section 14(1) of SARFAESI Act. It states that all the provisions of
SARFAESI Act have been complied with by the petitioner.
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8. The property (secured asset) is an immovable property described as
“BUILT-UP UPPER GROUND FLOOR, LEFT HAND BACK SIDE,
WITHOUT ROOF RIGHTS, LAND AREA MEASURING 42 SQ. MTR.
I.E. 50 SQ. YDS. , (OUT OF TOTAL LAND 200 SQ. YARDS) SITUATED
IN THE AREA OF VILLAGE KAMALPUR, MAZRA, BURARI, OUT
OF KHASRA NO. 11/21, GALI NO.2, BLOCK-B, KAMALPUR
MAZRA, BURARI WEST, SANT NAGAR, DELHI-110084”. The
description is same in security agreement and the title documents. It is
within territorial jurisdiction of this court. It is stated to be in the name of
respondent. The original title documents and copies of previous chain of
documents in respect of said property are with the petitioner thereby
creating an equitable mortgage. The amount due is not less than twenty
percent of the principal amount and interest as per clause (j) and the
property is not the one hit by other clauses of section 31 of SARFAESI Act.
Sixty-days’ notice given under section 13(2) of SARFAESI Act has been
seen, giving details of outstanding amount and details of secured asset,
along with original postal receipt and the newspaper publication. The
petitioner states that no objections have been received from anyone and that
the borrower has failed to repay the outstanding amount in full.
9. As all such requirements have been fulfilled, it becomes mandatory
for the undersigned being the Chief Metropolitan Magistrate to order taking
possession of the assets mortgaged with the petitioner and the documents
related thereto, and forward the same to the secured creditor. As per section
14, the court may take or cause to be taken such steps as use of cause to be
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used such force as may be necessary.
10. In view of this position, I hereby appoint Sh. Akash Agarwal,
Enrollment No. D/5526/2020, Office at H-3, Second Floor, Jungpura
Extension Delhi-110014, Mobile No. 9621289970, as Receiver to take the
physical possession of the secured asset, that is, immovable property
described as “BUILT-UP UPPER GROUND FLOOR, LEFT HAND
BACK SIDE, WITHOUT ROOF RIGHTS, LAND AREA MEASURING
42 SQ. MTR. I.E. 50 SQ. YDS. , ( OUT OF TOTAL LAND 200 SQ.
YARDS) SITUATED IN THE AREA OF VILLAGE KAMALPUR,
MAZRA, BURARI, OUT OF KHASRA NO. 11/21, GALI NO.2, BLOCK-
B, KAMALPUR MAZRA, BURARI WEST, SANT NAGAR, DELHI-
110084.”. The Receiver shall give possession notice to the Authorized
Officer of the secured creditor and the borrower, to be served personally /
speed post at least fifteen days in advance. A copy of such fifteen-days’
advance notice shall also be affixed on the main door or other conspicuous
part of the said property. A copy of this order be also affixed along with
such notice and photographs be also taken as proof of the same.
11. After expiry of the notice, the receiver shall take possession of the
aforesaid property. The entire proceedings shall be photographed or video-
recorded as per the demand of the situation. The Receiver shall be
empowered to break open the locks, doors, windows, shutters and to
remove any other kind of obstruction, if required, for taking possession of
the property. In such eventuality, the Receiver shall prepare an inventory of
the articles found lying therein, which shall be duly signed by the
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witnesses. Copies of the inventory shall be handed over to the borrowers if
present at the site under acknowledgment and also to the Authorized
Officer of the petitioner.
12. After taking over the possession of the aforesaid assets, the Receiver
shall forward the same to the petitioner through its authorized officer. The
Receiver shall exercise all due care and caution and not to violate the
orders of any Court of forum relating to the aforesaid property.
13. The petitioner shall furnish all necessary details to the Receiver and
would extend full co-operation for the purpose of execution of this order.
The SHO of the concerned PS is also directed to provide police assistance
to the Receiver to ensure smooth execution of this order.
14. The fee of the Receiver is fixed at Rs. 50,000/- (Rupees Fifty
Thousand only) which should be paid in advance to the Receiver against
acknowledgment, before proceeding in any manner under the order. Steps
be taken within seven days from today in this regard. All miscellaneous and
incidental expenses shall be borne by the petitioner.
15. The Receiver shall file his report along with photographs/video, CD,
documents if any, inventory prepared if any, immediately after execution of
order.
16. For removal of doubts, it is made clear that objections/applications, if
any, may be preferred by any borrower, guarantor, mortgagor, lessee or any
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other aggrieved person before the Debt Recovery Tribunal having
jurisdiction, as per the amended provisions of section 17 of SARFAESI
Act.
17. A copy of this order be given to the petitioner bank and the Receiver.
Reader/Ahlmad of this Court is directed to inform telephonically to the
Court appointed Receiver.
18. No further proceedings are required by the undersigned on this
application. File be consigned to the Record Room.
Announced in the open Court
this 13th Day of August 2024 (Rashmi Gupta )
Chief Judicial Magistrate (Central)
Tis Hazari Courts, Delhi
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