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Judgment
Brijesh Sethi, Chairperson
This matter has been taken up by me through Video Conferencing.
This is an appeal against the order dated 26.12.2023 passed by the Ld. DRTI, Delhi in S.A. No.655/2023, which runs as under:-
"26.12.2023 Item no.1
Present: Mr. Madan Gopal, Ld. counsel for applicant
Ms. Sandhya Chawla, Ld. counsel for respondent Ft
This matter is taken up by this Tribunal through video conferencing.
The present securitzation application has been filed by the applicants praying therein to restrain the respondent Fl/court receiver from taking physical possession of the property bearing no.E-1/A, Rajan Babu Road, Adarsh Nagar, New Delhi (hereinafter referred as the property in question) on 26.12.2023.
It has been submitted on behalf of the applicants that the applicant have availed a loan facility from the respondent Fl against the mortgage of the property in question and the applicants were regularly paying the EMIs, but due to Covid-10 the applicants suffered heavy losses and could not pay certain EM/s. It has further been submitted that against the order passed by the DRT and Hon'ble DRAT, Delhi, the applicants have approached the Hon'ble High Court of Delhi and the Hon'ble High Court vide order dated 25.05.2023 passed a stay order in CM(M) 895/2023 and the said order was subject to deposit of Rs.20.00 lakhs (i.e. Rs. 10.00 lakhs was ordered to be deposited within three days and thereafter Rs. 10.00 lakhs within seven days from the deposit of the said amount). It has further been submitted that thereafter the applicants have approached the respondent Fl and settled the dispute and accordingly the applicants have deposited a sum of Rs. 13.20 lakhs, but the applicants could not deposit the amount of Rs.20.00 lakhs after one month. It has further been submitted that the entire actions of the respondent Fl are bad in law, accordingly, it has been prayed for restraining the respondent Fl/court receiver from taking the physical possession of the property n question on 26.12.2023. Ld. counsel for the applicants submitted that the applicants are ready to settle the matter with the respondent Fl provided some time may be granted to them.
On the other hand, Ld. counsel for the respondent Fl has vehemently opposed the submission of the of the applicant. She further submitted that the respondent Fl has taken all the measures under the SARFAES1 Act and the notices under Sections 13(2) and 13(4) have been served upon the applicant and after declaring the account as NPA the applicants have not cleared the entire dues of the respondent no.1 Fl. She further submitted that the applicants have not complied with the orders of the DRT and Hon'ble DRAT, Delhi and even the applicants have also failed to comply with the aforesaid order of Honible High Court f Delhi. Accordingly, it has been prayed for rejection of the interim prayer of the applicant.
Heard the rival contentions of both the parties and perused the records.
In the present matter. Admittedly the borrower has availed the loan facility from the respondent Fl against the mortgage of the property in question. Apparently, there is default on the part of the borrower/guarantor/mortgagor in paying the dues of the respondent Fl and as per the respondent Fl, notices under Section 13 (2) and 13 (4) of the SARFAES1 Act have been duly served upon the borrower/guarantor/mortgagor and after declaration of the account as NPA, the borrower has not cleared the dues of the respondent Fl till date. Admittedly, the applicants have not deposited the amount with the respondent Fl as per the per the order dated 25.05.2023 passed by the Honble High Court of Delhi in CM (M) 895/2023. Even, on being asked by this Tribunal, the applicants are not ready to pay the entire dues of the respondent Fl before the time of possession, which is fixed for today i.e. 26.12.2023.
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 Fl under the SARFAESI Act including notices under Section 13 (2) and 13 (4) and the S. Applicant have also not denied about the availment of the loan facility availed by the borrower. Accordingly, the prayer of the applicants for restraining the respondent Fl/Court receiver from taking physical possession of the property in question, which is fixed for 26.12.2023, stands rejected. All other issued shall be decided at the time of final hearing after filling the reply, rejoinder and evidenced by the parties.
List the case on 14.02.2024 before the Ld. Registrar for completion of pleadings.
Sd/-
(GOVIND BALLABH SHARMA)
PRESIDING OFFICER
DRT-I, Delhi"
Ld. Counsel for the appellants has submitted that the Receiver has issued notice for taking possession of the premises in question tomorrow, i.e. 02.01.2024. Ld. Counsel for the appellants further submits that an OTS was entered into between the appellants and respondent Fl on 30.05.2023 and as per the OTS appellants had to pay an amount of Rs.75 lacs. He states that the appellants had paid Rs.13.20 lacs on 31.05.2023 and Rs.79,500/- each on 27.07.2023 and 30.11.2023, but due to financial constraints the appellants could not pay further amounts. Ld. Counsel further states that the appellants are ready to pay the due amount in instalments and they be given time up to August 2024. Ld. Counsel, therefore, prays for restraining the Receiver from taking the physical possession of the property in question.
Ld. counsel for the appellants further states that no notice under Section 13(4) of the SARFAESI Act was ever served upon the appellants.
Ld. Counsel for the respondent has, on the other hand, submitted that according to the OTS entered into with the respondent Fl, the appellants were to pay Rs.75 lacs as per the schedule given below, but the appellants did not honour their commitment and failed to adhere to the schedule of payments.
S.No.
Due date
Amount
1.
31.05.2023
13,20,000/-
2.
30.06.2023
20,60,000/-
3.
30.07.2023
20,60,000/-
4.
30.08.2023
20,60,000/-
It is further submitted that the as on date the appellants have to pay an amount of Rs.80,70,657/- and the appellants have not even made 25% pre-deposit on this amount. It is, therefore, submitted that no grounds for restraining the Receiver from taking physical possession of the property in question are made out.
Ld. counsel for the respondent further submits that notices under Section 13(2) and 13(4) of the SARFAESI Act were duly served upon the appellants. It is also submitted that in the present case there is no need of serving notice under Section 13(4) of the SARFAESI Act upon the appellants as the Receiver has issued notice for taking physical possession of the property in question.
I have considered the rival submissions. The pre-deposit of 25% of the outstanding amount as on today has not been made by the appellants and, therefore, the appeal cannot be entertained in view of Section 18 of the SARFAESI Act as well as in view of the judgement of the Hon'ble Supreme Court in the case of Kotak Mahindra Bank Pvt. Ltd. Vs. Ambuj A Ksliwal & Ors., Civil appeal No.538/2021, decided on 16,02.2021. Even otherwise, this Tribunal is of the opinion that the appellants have no case for stay for the reason that they have failed to adhere to the terms of the OTS. It is an admitted case that the appellants had taken the loan from the respondent Fl. It is also apparent on the record that there is default on the part of the appellants/borrowers in the re-payment of the same.
Perusal of the record reveals that this is second round of litigation. Earlier against the orders dated 11.04.2023 and 24.04.2023 passed by the Ld. DRT in TSA No.111/2022, vacating the interim order on the ground that the appellants had not deposited the overdue amount despite having given an undertaking to deposit the same within a month, the appellants had approached the Hon'ble Delhi High Court and the Hon'ble High Court vide its order dated 25.05.2023 had permitted the appellants to deposit a sum of Rs.10 lacs within three days from the date of the order and another sum of Rs.10 lacs, within one week thereafter before the Ld. DRT-I. Subject to making those deposits, the possession of the subject suit property was stayed by the Hon'ble High Court for a period of 15 days from the date of the order to enable the petitioner to take appropriate steps before this Tribunal, as appellants were required to file an appeal before this Tribunal against the orders of the Ld. DRT. It was also made clear that in case of any default in either of the directions, the interim order would deem to have been vacated. Thereafter, an OTS was entered into between the parties, but because of non-adherence to the schedule of payment by the appellants, the OTS failed.
In these circumstances, when there is recurring defaults in the payments on the part of the appellants, no grounds for restraining the Receiver are made out. Even otherwise, the present appeal fails on the ground of non-making of the requisite minimum pre-deposit of 25% of the outstanding amount by the appellants.
In view of above, this Tribunal does not find any illegality or irregularity in the impugned order of the Ld. DRT. The appeal is, therefore, dismissed.