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Judgment
This is an application under Section 17 of the SARFAESI Act seeking waiver of pre-deposit.
The appellant is stated to be a third party as such there is no requirement of pre-deposit.
Accordingly, the application is allowed.
Misc. Appeal (EDRAT) No.389/2026
Heard Sh. Ashok Kumar, Counsel for the appellant.
The instant appeal is filed to challenge the impugned order dated 19.01.2026 whereby DRT-I, Delhi observed that there is no illegality or irregularity in the measures taken by the respondent no.1 under SARFAESI Act including notices under Section 13(2) and 13(4) of the SARFAESI Act. The relevant portion of the order dated 19.01.2026 are reproduced as under:
5.In the present matter, admittedly the borrower has availed the loan facilities from respondent FI against the mortgage of the property in question. Apparently, there is default on the part of the borrower in paying the dues of the respondent FI and as per respondent FI that after declaring the account as NPA the borrower has not paid the dues of the respondent FI and the demand notice under section 13 (2) and symbolic possession notice under section 13 (4) have already been served upon all the borrowers/guarantors/mortgagors as per the Security Interest (Enforcement) Rules, 2002. Further, the applicant has not also denied about the execution of the loan documents by the borrower in favor of the respondent FI. Further, the applicant and the respondents no.3 to 5 are family members and it seems there is some dispute between the family members, but the respondent FI has nothing to do with their dispute. Further, the respondent FI / court receiver has served the possession notice dated 17.12.2025 by post and the said possession notice was also affixed on the property in question on 02.01.2026. Even otherwise, the borrowers have not come forward to pay the dues of the respondent FI before the date of possession, which is fixed for today.
6.In the light above facts and circumstances of the case, this Tribunal is of the prima facie view that there is no illegality or irregularity in the measures taken by the respondent FI under the SARFAESI Act including notices under Section 13 (2) and 13 (4) and even the applicant has also not denied about the availment of the loan facility from the respondent FI against the creation of alleged mortgage of the property in question. Accordingly, the prayer of the applicant for restraining the respondent FI/ court receiver from taking physical possession of the property in question, which is fixed for 19.01.2026, stands rejected. All other issues shall be decided at the time of final hearing after filling the reply, rejoinder and evidences by the parties.
The Counsel for the appellant argued that the subject property is disputed between the appellant and respondents no.2 to 4 who are members of the same family and as such the subject property should not be put to the proceedings under the SARFAESI Act. It is admitted that the respondents no.2 to 4 being the borrowers/guarantors have availed the loan facility from the respondent no.1 against the mortgage of the property in question. The respondents no.2 to 4 have committed default in financial discipline and their loan account has become “Non Performing Assets” and the outstanding dues has not been paid by the respondents no.2 to 4.
It is also not disputed that subject property was also mortgaged with the respondent no.1 FI, if there is any dispute between the appellant and the respondents no.2 to 4, then respondent no.1 has nothing to do with their family dispute qua their claim for recovery of the outstanding loan amount against the respondents no.2 to 4.
After considering all the facts, there is no ground to interfere in the impugned order dated 19.01.2026 passed by the DRT-I, Delhi in S.A. No. 26/2026. Hence, the Misc. Appeal is dismissed.