Final Order 1

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: IN THE COURT OF SH. AASHISH GUPTA,
LINK CHIEF METROPOLITAN MAGISTRATE, NORTH-EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CIS No. 638/2023
PS Bhajanpura
Cholamandalam Investment and Finance Company
Limited
Registered Office at:
1st Floor, 'Dare House', No.2,
N.S.C.Bose Road, Chennai-600001
Branch Office at:
6, Pusa Road, Karol Bagh, New Delhi
(Through its Authorised Officer Mr. Srinivas V.
Mobile No.9643344410) ...Applicant
VERSUS
1. Sanjay Jain
House No. C-178/1A, Gali No. 7,
C-Block, Bhajanpura
Also at:
C-10/473, Tanki Road,
Bhajanpura
New Delhi-110053
2. Ajay Jain
C-7/123, C-7 Block,
Yamuna Nagar,
New Delhi-110053
Also at:
C-474/10, Bhajanpura,
Delhi-110053
3. Poonam Jain
House No. C-178/1A, Gali No. 7,
C-Block, New Delhi-110053
Also at:
C-10/473, Tanki Road,
Bhajanpura
New Delhi-110053
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4. Mona Jain
H.No.C-7/123, Ground Floor
Yamuna Nagar,
New Delhi-110053
Also at:
C-474/10, Bhajanpura,
Delhi-110053
5. Ram Prasad Jain
C-474/10, Gali No. 10,
Near Pandit Yadram Public School,
Bhajanpura,
Delhi-110053
6. Shiv Kumar Timber Traders
H.No.C-7/123, Ground Floor
Yamuna Nagar,
New Delhi-110053
7. Shree Ajay Timber Traders
H.No.C-7/123, Ground Floor
Yamuna Nagar,
New Delhi-110053 ...Respondents
10.07.2023
Present: Sh. Gaurav Dua, Ld. Counsel for the applicant alongwith
Mr. Srinivas V.AR of the applicant
1. The application under Section 14 of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (hereinafter referred to as “the Act”) is taken up for
consideration.
2. It is stated in the application that the applicant is a secured creditor
whereas the respondents are “borrowers” as defined in section 2(1)(f)
of the said Act. According to the applicant, the following properties are
secured assets since a “security interest” was created thereon by the
borrowers to secure repayment of a loan:
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(i) Entire Property bearing No. C-95(Part-A), measuring 190 sq.
yds, out of Khasra No.87, situated at Village Tukmirpur, in the
abadi of Chand Bagh, near Red Light, Bhajanpra, Illaqa
Shahdara, Delhi which is bound by Other's property on east, west
and south side and a 20 ft. wide road on north side.
(ii) Entire Ground Floor without roof rights of House No.C-7/123,
i.e. Plot No. 123 in Block C-7, measuring 70 sq. yds., Yamuna
Vihar Residential Scheme, Delhi which is bound by a path on east
side, property No. C-7/124 on west side, a road on north side and a
service lane on south side.
3. The borrowers are stated to have defaulted in repayment of the loan. It
is further stated by the applicant that the loan account has been
declared as ‘non-performing asset’. It is further averred that the
secured creditor had issued statutory notice under section 13(2) of the
Act but the respondents failed to discharge their liability in full within
the stipulated period of sixty days from the date of notice. As per the
applicant, there is no pending objection of the borrowers. It is stated in
the application that possession of the assets needs to be taken and
orders for that may be passed.
4. Affidavit of the Authorized Officer of the secured creditor, as required
by proviso of Section 14(1) of the Act, has also been filed. The
affidavit discloses the extent of financial assistance granted and the
claim of the Finance Company as on the date of filing the application.
It reiterates the aforenoted pleas and fulfills the requirements of the
said proviso.
5. Original documents relied upon by the applicant were produced for the
inspection of the court. After inspection, the original documents were
returned.
6. I have heard arguments advanced by the Ld. counsel for the secured
creditor and have perused the application, affidavit of authorized
officer, title deeds of the assets and other supporting documents.
7. Section 14 of the Act enjoins the Chief Metropolitan Magistrate to pass
‘suitable orders’ for taking possession of the secured assets and to
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forward it to the secured creditor. It further vests the Magistrate with
powers to take all necessary steps and to use force for compliance of its
order.
8. The aforenoted assertions of the applicant, duly supported by affidavit
and documents, demonstrate that the respondents had availed financial
assistance from the applicant Finance Company, that the respondents
had created security interest on the assets, that the respondents
defaulted in repayment of the loan, that the loan account was declared
non-performing assets, that the respondents failed to pay the
outstanding loan amount even after receiving notice under section 13
(2) of the Act which afforded a period of sixty days to do so and that
there is no pending objection or representation of the respondents.
9. Accordingly, the application of the secured creditor/applicant is
allowed. Mr. Sandeep Vishnu, Enrollment No. D/2954/2009,
Chamber No. 248, GF Western Wing, Tis Hazari Courts, Delhi,
Mobile No. 9810394594 is appointed to take possession of the above
described assets.
10. The provisos to Section 14(1) of the Act provide a time limit for
disposal of application under Section 14. This has been done so that
possession of the secured Assets can be obtained by the secured
Creditor expeditiously. In the case of Cholamandalam Investment and
Finance Company Limited Vs. Rajeev Chawla and Ors. CM(M)
No.716/2021 dated 22.10.2021, the Hon'ble High Court held that time
is of essence in proceedings initiated under the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002. It was held that the purpose behind the Act will be
frustrated if there are delays in implementing orders passed under the
Act.
11. Accordingly, it is directed that the Receiver will give 07 days advance
possession notice to the Authorised Officer of the Secured Creditor and
to the borrowers. The possession notice shall also be affixed upon the
main doors or any other conspicuous portion of the secured Assets.
Photographs of the secured Assets with the pasted possession notice
shall be taken and filed by the Receiver alongwith the report.
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12.For securing compliance of this order, the Receiver may obtain the
assistance of the police including women police officials, if required
and take such other steps and use such force as is found necessary.
Police shall render assistance and provide adequate force for protection
of the above named person and of the bank employees involved in
recovery of the assets. The Receiver, is empowered to break open
locks in case the assets is found locked. The Receiver 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 Ld. Court
Receiver to the borrower, if present at the site. One copy of the same,
duly signed by the witnesses and by the Ld. Court Receiver will be
annexed with his 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 Ld. Court Receiver and be
annexed with the report. Broken locks, if any, shall be sealed in cloth
pulanda and be deposited with concerned applicant/FI. Miscellaneous
expenses on this account shall be borne by the applicant/FI. After
taking over the subject property it be handed over to the authorised
officer of the applicant/FI. The expenses on this account shall be borne
by the applicant/FI and photographs be enclosed with the report.
Accompanying witnesses shall sign the proceedings.
13.The fee of the Ld. Court receiver is fixed at Rs. 1,25,000/-(Rupees One
Lakh Twenty Five Thousand Only) to be paid by the applicant/FI and
the same shall be paid to the Ld. Court Receiver promptly after
receiving of order, irrespective of the aspect of the settlement if any,
arrived between the borrower and applicant/FI. The fee of the Receiver
has been fixed keeping in mind that possession of two different
properties is to be taken on two different locations.
14.Report of compliance of the above stated directions shall be filed in
the court within one month from today.
15. If the recovery proceedings are stayed by order of Debt Recovery
Tribunal or other fora, and in case the stay order is subsequently
vacated or the applicant is granted liberty to recover possession of the
property, the mandate of the Receiver to recover possession would
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stand extended and the Receiver shall be at liberty to recover
possession of the secured assets and to hand it over to the applicant
Finance Company notwithstanding the expiry of aforesaid period of
one month. For this purpose, the applicant Finance Company may itself
contact the Receiver and the Receiver shall recover possession on the
same terms as are mentioned in this order. There shall be no need for
the applicant Finance Company to approach this court for extension of
time or other directions. However, if the applicant Finance Company,
of its own, decides not to recover possession, it shall apply to this court
to terminate the mandate of the Receiver and it shall not be lawful for it
to itself instruct the Receiver to refrain from or to delay the recovery of
possession. In case there is delay on the part of the applicant in
compliance with this order, the same shall be explained by the
applicant Finance Company by affidavit of the Authorized Officer.
16. Nothing stated in this order shall be construed as a finding of liability
or a judicial determination of the issues in contention between the
parties.
17. Since the directions sought by the applicant have been passed, nothing
survives in the matter. Let file be consigned to record room after
receiving compliance report. Copy of this order be given dasti to the
Ld. counsel for the applicant. The Reader/Ahlmad shall send a copy of
this order to the Receiver by e-mode within two working days from
today.
(Aashish Gupta)
Link: CMM, North-East District,
Karkardooma Courts, Delhi
10.07.2023
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