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Judgment
P.K. Bhasin, J
The appellant was aggrieved by the order passed by the DRT-I, Delhi on 11.7.2016 in S.A. No. 144/2014, whereby her prayer for restraining the respondent Bank from selling her property which she had mortgaged in favour of the respondent Bank to secure repayment of the loan advanced by it to the principal borrower has been declined and S.A. itself was dismissed. When this appeal and some other appeals where orders passed by DRTs in different S.As. of different borrowers declining reliefs against the dispossession of the defaulting borrowers/mortgagors/guarantors from the mortgaged assets/secured assets were challenged, a doubt was raised by this Tribunal as to the maintainability of the S.As. before the Banks/Financial Institutions could obtain physical possession of the mortgaged/secured assets in view of the decision of the Hon'ble Supreme Court in the case of Standard Chartered Bank v. V. Noble Kumar & Ors., III (2016) DLT (Cri) 148 (SC) : IV (2016) SLT 531 : III (2016) BC 405 (SC) : III (2016) CCR 64 (SC) : (2013) 9 SCC 620.
Counsel in different appeals, including the present one, had made their submissions to the effect that the judgment of the Hon'ble Supreme Court in V. Noble Kumar's (supra) case did not create a bar against the maintainability of the S.As. if the physical possession of the mortgaged/secured assets is not taken over by the Banks/Financial Institutions and symbolic possession taken by the Banks/Financial Institutions was sufficient to maintain an S.A. The learned Counsel for the appellant in the present appeal had cited the following judgments in support of his submissions:
United Bank of India v. Satyawati Tandon and Others, III (2010) BC 495 (SC) : VI (2010) SLT 52 : (2010) 8 SCC 110
(2009) 8 SCC 366
GM, Sri Siddeshwara Co-op. Bank Ltd. v. Sri Ikbal, VIII (2013) SLT 290 : IV (2013) CLT 122 (SC) : (2013) 10 SCC 83
Kanaiyalal Lalchand Sachdev v. State of Maharashtra, II (2011) SLT 188 : I (2011) BC 698 (SC) : (2011) 2 SCC 782.
Onil Sadh v. Federal Bank, 224 (2015) DLT 556.
Deepak Kumar v. District and Sessions Judge, 192 (2012) DLT 602 (FB) : III (2012) CLT 497 (FB) : 2012 (132) DRJ 69.
Pegasus Assets Reconstruction Private Limited v. Haryana Concast Limited and Another, I (2016) BC 389 (SC) : I (2016) SLT 118 : (2016) 4 SCC 47.
Harshad Govardhan Sondagar v. International Assets Reconstruction Company Ltd. & Ors., II (2014) CCR 137 (SC) : II (2014) BC 340 (SC) : II (2014) DLT (Cri) 836 (SC) : III (2014) SLT 469 : (2014) 6 SCC 1.
Madras Petrochemical Limited and Another v. BIFR and Others, I (2016) SLT 596 : I (2017) BC 638 (SC) : (2016) 4 SCC 1.
Union of India & Ors. v. Dhanwanti Devi & Ors., 1996 (SLT Soft) 1629 : (1996) 6 SCC 44.
Jawahar Singh v. United Bank of India, I (2016) BC 3.
Today, vide my detailed order in Misc. Appeal No. 60/2016, Vikram Bakshi & Company Pvt. Ltd. v. Housing Development Finance Corporation Ltd. & Ors., II (2017) BC 98. I have held that in view of the decision of the Hon'ble Supreme Court in V. Noble Kumar's case (supra), which has been followed by Calcutta High Court, the Securitization Applications under Section 17(1) of the SARFAESI Act are not maintainable before actual physical possession of the mortgaged/secured assets is taken over by the Banks/Financial Institutions.
In view of that view having been taken by me, this appeal is also liable to be dismissed on the ground that when the appellant had filed S.A. the same was premature as she had not been dispossessed from the mortgaged/secured asset by the respondent Bank. This appeal is accordingly dismissed.
Copy of my order of today's date passed in above-referred Misc. Appeal No. 60/2016 shall be kept in the present appeal file also.