Final Order 1

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
NEW DELHI DISTRICT, PATIALA HOUSE COURTS: NEW DELHI
SARFAESI PETITION
12.10.2022
Case No. 1941/2022
Tata Capital Financial Services Ltd.
Having its registered office:-
At 11th Floor, Tower A,
Peninsula Business Park, Ganpatrao Kadam Marg,
Lower Parel, Mumbai, Maharashtra-400013,
A Branch Office At 7th Floor, Videocon Tower E-1,
Jhandewalan Extension, Rani Jhasi Road,
New Delhi-110055
…. Secured creditor/Petitioner Company
Versus
1. Ms. Sarla Choudhary,
RZ- 58/284, Gali No. 01,
Gitanjali Park, West Sagarpur,
New Delhi-110046 …. Borrower
2. Sh. Virender Singh
RZ- 58/284, Gali No. 01,
Gitanjali Park, West Sagarpur,
New Delhi-110046 …. Co-Borrower
3. Reena Kumari,
RZ- 58/284, Gali No. 01,
Gitanjali Park, West Sagarpur,
New Delhi-110046 …. Co-Borrower
ORDER
1. This is an application moved by the Petitioner Company under
Section 14 of the Securitisation and Reconstruction of Financial Assets and
CC No:- 1941/2022 Tata Capital Financial Services Ltd. v. Sarla Choudhary & Ors.. Page No. 1 of 5
-- 1 of 5 --
Enforcement of Security Interest Act, 2002 (hereinafter referred to as
'SARFAESI Act'). It is submitted by Ld. counsel for Petitioner Company that
respondents approached the Company and requested for grant of loan facility
against property and after believing upon the presentation and request of
respondents, the Petitioner Company sanctioned sum of Rs. 54,00,628
(Rupees Fifty Four Lakhs Six Hundred and Twenty Eight only) qua loan
account 21344823 and another amount of Rs.10,00,000/- (Rupees Ten Lacs
only) qua loan account TCFLA0359000010924394 in favour of respondents.
In order to secure the said loan, the respondents created security interest on
property i.e. “All that piece and parcel of Built-up property bearing no.
RZ-60/284, Plot bearing number 60, out of Khasra Number 284, West
Sagarpur, Village Nasirpur, New Delhi-110046” in favour of the Petitioner
Company. However, after availing the credit facility, the respondents did not
adhere to the financial commitments made under the agreement and
committed defaults with regard to repayment plan and further the
respondents' loan account was declared non performing asset on 03.01.2022.
Notice under Section 13(2) dated 28.04.2022 was duly served upon the
respondents demanding sum of Rs.64,88,940/- as on 28.04.2022/-. As per
CW-1/A, despite the service of abovesaid notice, respondents failed to
discharge their liability within the period of 60 days. Also, as mentioned in
the application, no notice or representation in reply to the notice was received
from the borrower, no outstanding payment was made by the respondents,
hence the present petition has been filed before this Court.
2. I have heard the arguments of Ld. Counsel for Petitioner
Company and gone through the relevant provisions of law. I have also
perused the copy of documents relating to the loan/mortgage qua property in
question produced by the Petitioner Company along with affidavit and also
CC No:- 1941/2022 Tata Capital Financial Services Ltd. v. Sarla Choudhary & Ors.. Page No. 2 of 5
-- 2 of 5 --
satisfied with the same. The original documents have been perused and
returned to the AR of the Petitioner Company. The documents have also been
produced in support of the submission that notice under Section 13(2) of the
Act was duly served upon the respondents and despite that the outstanding
amount has not been paid within the stipulated period. As per statement of
CW-1, secured asset is not in possession of lessee under the valid lease made
prior to creation of the mortgage by the respondents or made in accordance
with Section 65-A of T. P. Act, prior to receipt of notice under Section 13(2)
of SARFAESI Act and there is no stay pending in any other Court of law
regarding the property in question.
3. Section 14 of SARFAESI Act makes it mandatory for the
CMM/ACMM to order taking possession of the assets mortgaged and the
documents relating thereto and forward such assets and documents to the
secured creditor and for the purpose of securing compliance, the Court 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.
4. In view of the aforesaid provisions of law and the submissions
made I appoint Arti Bhatnagar, Advocate, Enrollment No. D-2251/2009,
Office at:- Ch. No. 329, IIIrd Floor, Lawyers Chamber, Rohini Courts,
Delhi, Mobile No:- 9899314054 to take possession of mortgaged property
i.e. “All that piece and parcel of Built-up property bearing no. RZ-
60/284, Plot bearing number 60, out of Khasra Number 284, West
Sagarpur, Village Nasirpur, New Delhi-110046” with the help of police aid
including one lady police official and submit her report accordingly. No time
limit is fixed for taking possession of secured asset in terms of directions
passed in judgment of Housing Development Finance Corporation Ltd. v.
CC No:- 1941/2022 Tata Capital Financial Services Ltd. v. Sarla Choudhary & Ors.. Page No. 3 of 5
-- 3 of 5 --
Rakesh Kumar & Ors, CM(M) 647/2021 of Hon'ble Delhi High Court
dated 09.12.2021. Receiver shall give possession notice to the authorized
officer of the secured creditor and the borrowers 15 days in advance.
Possession notice shall also be affixed on the outdoor or, at such conspicuous
place of the immovable property and photographs of that place shall be taken
including display of notice on property.
5. Receiver is also empowered to break open the locks in case
property in dispute is found locked and in that eventuality, she shall prepare
inventory with regards to the items kept inside the premises and hand over
one list duly signed by the witnesses and by the receiver to the borrower, if
present at the site, and one copy duly signed by the witnesses and by the
receiver will be annexed with her report. Photographs of the locked premises
before take over and after take over and photographs of the items kept inside
the premises shall also be taken by the receiver and be annexed with the
report. Broken locks shall be sealed in cloth pulanda and be deposited with
concerned Company. Miscellaneous expenses on this account shall be borne
by the Petitioner Company. After taking over the secured asset it should be
handed over to the authorized officer of the Company. Photographs be
enclosed with the report. Accompanying witnesses shall sign the proceedings.
Moreover, Receiver is required to ensure that while executing the order
there is no stay from any Court in respect of the aforesaid property. The
fee of the Receiver is fixed as Rs.80,000/- in total to be paid by the Petitioner
Company and fees shall be paid to the Receiver within 15 days from today. A
copy of this order be given to the Receiver as well as to the Petitioner
Company for compliance and one copy of order be sent to the SHO
concerned.
CC No:- 1941/2022 Tata Capital Financial Services Ltd. v. Sarla Choudhary & Ors.. Page No. 4 of 5
-- 4 of 5 --
6. Objections, if any by whomsoever concerned should be made
before the Debt Recovery Tribunal and no objections shall be entertained in
this Court. Under the scheme of the Act this court is supposed to provide the
assistance to the Financial Institutions to obtain the possession of the secured
asset in accordance with law. This Court is not supposed to decide any of the
issue between the parties on its merits. After the appointment of Receiver
nothing survives in the petition. Receiver is directed to file the compliance
report in the office. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN COURT
ON 12th October, 2022
(NABEELA WALI)
ACMM-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
12.10.2022
This order contains five pages and each page is signed by me.
(NABEELA WALI)
ACMM-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
12.10.2022
CC No:- 1941/2022 Tata Capital Financial Services Ltd. v. Sarla Choudhary & Ors.. Page No. 5 of 5
-- 5 of 5 --