Final Order 2

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. ABHISHEK KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-
01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS:
NEW DELHI
SARFAESI PETITION
Ct Cases / 705/2024
Punjab National Bank Vs. Satvir Singh and Anr.
16.04.2024 at 04:00 pm.
Present: None for the petitioner company.
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 (12.08.2015).
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
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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 in the event of non-payment of secured debts.
3. It has been informed that no objection is pending and despite
that 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.
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7. The statement of CW-1 i.e. AR of the Petitioner Company and
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.
8. The property (secured asset) is an immovable property
described as “Property No. 20, Land Area 140 Sq. Yds, Part of
Khasra No. 523, situated in the 1908-09 Lal Dora of Village
Mahipalpur, Tehsil Vasant Vihar, New Delhi-110037”. The
description is same in security agreement and the title
documents. It is within territorial jurisdiction of this court. 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.
9. As all such requirements have been fulfilled, it becomes
mandatory for the undersigned being the Additional 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,
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the court may take or cause to be taken such steps as use of cause
to be used such force as may be necessary.
10.In view of this position, I hereby appoint Sh. Mani Kant,
Advocate, Enrollment No. D/4946/23, Office at:- C-164,
Lajpat Nagar-1,Delhi-110024, Mobile No. 9267957290 as
Receiver to take the physical possession of the secured asset,
that is, immovable property described as “Property No. 20, Land
Area 140 Sq. Yds, Part of Khasra No. 523, situated in the 1908-
09 Lal Dora of Village Mahipalpur, Tehsil Vasant Vihar, New
Delhi-110037”.
11.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.
12. 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 acknowledgement and also
to the Authorized Officer of the petitioner.
13.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.
14.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.
15.The fee of the Receiver is fixed at Rs.40,000/- (Rupees
Forty Thousand Only) which should be paid in advance to the
Receiver against acknowledgement. Steps be taken within seven
days from today in this regard. It was held in the judgment of
Cholamandalam (Supra) that the time is essence in the
proceedings initiated under SARFAESI and the purpose
behind the act will be frustrated if there are delays
implementing the order passed under this Act. Accordingly,
it is directed that the receiver will issue the possession notice
to the authorised officer of the secured creditor and to the
borrowers within seven working days of receiving the copy of
this order.
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16. The Receiver shall file his report along with
photographs/video, CD, documents if any, inventory prepared if
any, immediately after execution of order.
17. For removal of doubts, it is made clear that
objections/applications, if any, may be preferred by any
borrower, guarantor, mortgagor, lessee or any other aggrieved
person before the Debt Recovery Tribunal having jurisdiction, as
per the amended provisions of section 17 of SARFAESI Act.
18. If the recovery proceedings are stayed by Debt Recovery
Tribunal or any other forum and in case the stay order is
subsequently vacated and the applicant is granted liberty to
recover the possession of the property, the mandate of the
receiver to recover possession would stands extended and he/she
shall be at liberty to recover the possession of secured assets and
hand over the same to the petitioner of this case. For this purpose
the petitioner through authorized representative may itself
contact the receiver and the receiver shall recover the possession
of the same on the same terms as mentioned in this order and
there shall not be any requirement for the petitioner to approach
this court for the extension of time or any other directions.
However, if the petitioner of its own decides not to recover the
possession, it shall apply to this court to terminate the mandate
of the receiver and it shall not be lawful for the petitioner to
itself instruct the receiver to refrain from or to delay the recovery
of possession.
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19. A copy of this order be given to the petitioner bank and the
Receiver by the Reader/Ahlmad. Reader is hereby directed to
intimate the receiver about this order and supply him/her the
copy of the order without delay.
20. No further proceedings are required by the undersigned on
this application. File be consigned to the Record Room.
( Abhishek Kumar )
ACMM-01/PHC/ND/16.04.2024
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