Kumar Aluminium Ltd. And Ors. vs Asset Reconstruction Co. (India) Ltd. And Ors.

S.N.H. Zaidi, J

This application has been filed by respondent No. 1 for dismissal of the appeal filed against the order dated 27.9.2012 of the DRT-III, Delhi passed in S.A. No. 527/2012. No formal reply to the application has been filed on behalf of the appellants.

Ms. Pratiti Rungta appearing for the 1st respondent/applicant has pointed out that the instant appeal has been filed against a common order dated 27.9.2012 passed in respect of four S.As. including S.A. No. 527/2012 filed by the appellants (M/s. Kumar Aluminium Ltd. & Ors.), whereby the learned Tribunal below has declined to grant any interim order in favour of the applicants of all the S.As. She has further pointed out that this Tribunal has admitted the appeal after hearing the parties as the appellants' Counsel had contended that the account of the appellant company was wrongly classified as NPA and directed the respondent/applicant, which is the assignee of the creditor Bank (respondent No. 2 herein), to hand over the possession of the cooker factory to the appellants subject to certain conditions.

Ms. Rungta has contended that though the loan account of the appellants and other three companies were classified as NPA in the years 2001/02 and separate demand notices under Section 13(2) of the SARFAESI Act were issued to them, yet no measure under Section 13(4) of the said Act was taken against the appellants and as such the S.A. filed by the appellants was premature and not maintainable. Pointing out to the following chart prepared by the appellants, she has stated that the respondent company had taken the possession of only 100 sq. yds. of property No. 340/47 and 200 sq. yds. of property No. 340/48 of Friends Colony mortgaged by M/s. Kuaan International Ltd. and of property No. 1/641 of Loni Road, excepting the common passage and the area in possession of the two tenants, mortgaged by all the four companies.

She has further contended that the report submitted by an Advocate engaged by the creditor Bank, after verifying from the revenue record, showed that 150 sq. yds. of property No. 340/46 and 100 sq. yds. of property No. 340/47, out of Khasra No. 1185/20/2 of revenue village Jhilmil, Tahirpur, related to Kumar Aluminium Ltd. were acquired by the Government of NCT of Delhi for DMRC project and as such the said properties of the appellants mortgaged by them could not be proceeded against. She has also contended that since the actual physical possession of the mortgaged properties were taken on 3.10.2012, i.e., subsequent to the filing of the S.A. by the appellants, therefore, the taking of possession could not give any cause of action to the appellants for filing the S.A. and as such the present appeal is liable to be dismissed and the direction to hand over possession of the cooker factory, which was running on property Nos. 340/47 and 340/48, to the appellants needs to be reconsidered and recalled.

Mr. M. Dutta, the learned Counsel for the appellants, on the other hand, has vehemently opposed the application and contended that from the contentions of the respondent's Counsel it is sufficiently clear that property No. 1/641, Loni Road was mortgaged in respect of all the four loan accounts whereas property No. 340/47, Friends Colony was mortgaged by the appellants as well as by M/s. Kuaan International Ltd. He has further contended that the respondent company while taking possession of the aforesaid properties had also taken the possession of the appellants property and had also taken forcible possession of the cooker factory being run on property No. 340/47 and as such the appellant has a right to agitate the illegal actions of the respondent company as well as on the basis of wrong classification of the appellant's account as NPA.

I have given my considered thoughts to the submissions of the parties' Counsels. It is an admitted case of the parties that no possession notice qua the properties mortgaged by the appellants was issued to the appellants. There is nothing on record which could show that the respondent company had taken any measure under Section 13(4) of the SARFAESI Act in respect of the secured assets of the appellants. The possession of the secured assets of the companies, other than the appellants' appears to have been taken by the respondent after the filing of the S.A. Though property No. 1/641 of Loni Road was also mortgaged by the appellants but, as pointed out above, its possession has admittedly been taken subsequent to the filing of the SA. The appellants mortgaged share of 100 sq. yds. in property No. 340/47 Friends Colony had indisputably been acquired by the Government of NCT Delhi for DMRC project. In view of these circumstances the observation of the Tribunal below in the order impugned that no prima facie case for any interim relief is made out, has rightly been made does not appear to be suffering with any infirmity or illegality. Therefore, this appeal being devoid of any force is liable to be dismissed and is dismissed accordingly. Application also stands disposed of accordingly. The dates fixed for filing the reply and hearing is cancelled. Copy of the order be furnished to the parties as per law and be sent to the DRT concerned.