Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2000/2024 & CM APPL. 8368-8369/2024
SH DEVKI NANDAN AND ANR. ..... Petitioners
Through: Mr. Sidharth Chopra, Mr. Navneet
Thakran & Mr. Chandan Sinha, Advs.
M: 8800773248
Email: chandansinha008@gmail.com
versus
M/S CAPRI GLOBAL HOUSING FINANCE LIMITED
AND ORS. ..... Respondents
Through: Mr. Gaurav Srivastava, Adv.
(Through VC)
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% Date of Decision: 09 February, 2024
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
J U D G M E N T
MINI PUSHKARNA, J: (ORAL)
CM APPL. 8369/2024 (For Exemption)
1. Exemption allowed, subject to just exceptions.
2. Application is disposed of.
W.P.(C) 2000/2024 & CM APPL. 8368/2024
3. The present petition has been filed under Articles 226 and 227 of the
nd
Constitution of India seeking setting aside the order dated 02 February,
2024 passed by the learned Chief Metropolitan Magistrate (“CMM”), North
District, Rohini Court whereby the learned CMM has directed the receiver
to take physical possession of the property bearing No. 20, out of Khasra
Signature Not Verified
W.P.(C) 2000/2024 Page 1 of 5
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:10.02.2024
19:28:04
No. 93/2 situated in Lal Dora of Village Azad Pur in Mandir Wali Gali,
North West Delhi, Delhi-110033.
4. There is further prayer for setting aside of the possession notice dated
th
05 February, 2024 issued by the receiver.
5. Learned counsel appearing for the petitioners submits that the
petitioner had approached the learned Debts Recovery Tribunal (“DRT”)
against the initiation of the proceedings under the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
(“SARFAESI”) Act before the learned CMM.
6. The interim application of the petitioners was dismissed by the
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learned DRT vide order dated 05 July, 2023. Thus, against the said order
the petitioners have already filed an appeal which is pending before the Debt
Recovery Appellate Tribunal (“DRAT”).
7. The present petition has been filed on account of the petitioner having
nd
received an order dated 02 February, 2024 passed by the learned CMM
wherein the receiver has been directed to take physical possession of the
property in question.
8. Learned counsel appearing for the petitioner submits that the receiver
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has issued a possession notice dated 05 February, 2024, wherein it is stated
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that the receiver shall take possession of the property on 12 February, 2024
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at 02:00 P.M. onwards. The said possession notice dated 05 February, 2024
issued by the receiver is reproduced as under:
“ Dated 05.02.2024
To,
The Authorized Officer,
Capri Global Housing Finance Limited
nd
Branch Office: 9B, 2 Floor, Pusa Road,
Rajendra Place, New Delhi-110060
Signature Not Verified
W.P.(C) 2000/2024 Page 2 of 5
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:10.02.2024
19:28:04
NOTICE FOR TAKING POSSESSION
You are being informed that undersigned has been appointed as
receiver by the Court of Sh. Virender Singh, CMM, (North District),
Rohini Courts, Delhi (Now successor court of Ms. Neha Gupta Singh,
CMM, North, Rohini Delhi) in Ct. Case No. 546/2023, case titled as
“Capri Global Housing Finance Ltd., Vs. Gautam Kumar” vide order
dated 08.06.2023 for taking the possession of the mortgaged property
rd
i.e. “All that piece, part and parcel of land and building built up 3
floor, with roof rights, area admeasuring 135 sq. yards, (112.87 Sq.
Meters), built up on property No.20, out of Khasra No. 93/2, situated
in the Lal Dora of Village Azad Pur in Mandir Wali Gali, North West
Delhi, Delhi-110033. Together with the undivided proportionate
freehold right of the land underneath, bounded as: East: Property of
others (part of Khasra), West by: Property No.21, North by: Gali 6
Feet, south by: Property of others”, with the police assistance
including one lady police official.
This is to inform you that the undersigned will take possession
of the above property on 12.02.2024 at 02:30 p.m. onwards. You are
therefore, required to be present at the property on 12.02.2024 at
02:00 onwards to take the possession in compliance with the orders,
dated 08.06.2023 and subsequent order dated 02.02.20204. Copy of
orders are enclosed herewith.
Note: In terms of earlier notice dt. 17.06.2023, the possession of the
property could not be taken over due to non availability of police aid
by the SHO concerned.
Deepika Kalra
Advocate
Court Receiver”
9. Learned counsel appearing for the petitioner has drawn the attention
of this Court to the application filed by the petitioner under Section 18 of the
SARFAESI Act before the DRAT. The Said application has been attached
as Annexure P-18 to the present petition. The prayer of the said application
filed on behalf of the petitioner before the DRAT reads as under:
“xxx xxx xxx
a) Allow this present application and pass an order Restraining the
Signature Not Verified
W.P.(C) 2000/2024 Page 3 of 5
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:10.02.2024
19:28:04
Respondent Bank, its employees, representatives, officers, agents etc.
from proceeding ahead in respect of notice dated 08.06.2023 which
was reinstated on 02.02.2024 and/or any other notice, action or
measure arising from or in connection with its notice dated
08.06.2023 and/or under Section 13(4) and 14 of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002, issued qua the property Bearing No. 20, Out of
Khasra No. 93/2, Situated At Lal Dora Village, Azadpur Mandir Wali
Gali, Delhi, 110033.
b) Pass an order thereby directing the Respondent No.1 to maintain
status quo with respect to the property bearing no. 20, Out of Khasra
No. 93/2, situated At Lal Dora Village, Azadpur Mandir Wali Gali,
Delhi, 110033 till the pendency of the present Appeal.
c) Pass such order or further order(s) as may be deemed fit and
proper in facts and circumstances of the present case.”
10. Learned counsel appearing for the petitioners submits that though the
aforesaid application has been filed before the learned DRAT with respect to
nd
the order dated 02 February, 2024 passed by the learned CMM and the
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possession notice dated 05 February, 2024 issued by the receiver, however,
the said application has not been taken up as yet. He submits that the said
application was listed before the DRAT today, however, the learned
Chairman of the DRAT did not hold the Court today. As per the information
received from the registry of the DRAT, the learned Chairman of the DRAT
will not hold the Court for the next couple of days.
11. Mr. Gaurav Srivastava, learned counsel appearing for the respondent
submits that as per his information, the learned Chairman, DRAT will
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resume his duties on 13 February, 2024.
12. Thus, in view of the aforesaid, learned counsel appearing for the
petitioner submits that he may be granted an audience by the DRAT and his
application may be heard before any action is taken by the receiver pursuant
nd
to the order dated 02 February, 2024 passed by the learned CMM.
13. Having heard learned counsel for the parties and having perused the
Signature Not Verified
W.P.(C) 2000/2024 Page 4 of 5
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:10.02.2024
19:28:04
documents on record, this Court notes that since the petitioner herein has
already approached the learned DRAT in appropriate proceedings, the
orders shall be passed by the learned DRAT after hearing the petitioners, in
accordance with law.
14. However, considering the fact that the learned Chairman, DRAT is
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not holding his Court till 13 February, 2024 and that as per the possession
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notice dated 05 February, 2024, the possession of the properties is slated to
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be taken on 12 February, 2024, it is directed that the possession notice
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dated 05 February, 2024 issued by the learned receiver shall remain in
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abeyance till 13 February, 2024, when the application filed by the
petitioners is taken up for hearing by the learned DRAT.
15. The present petition is disposed of in terms of the aforesaid directions.
16. However, it is clarified that in case the learned Chairman of the
th
DRAT does not hold the Court on 13 February, 2024 also, the petitioners
shall be at liberty to approach this Court for appropriate orders.
MINI PUSHKARNA, J
FEBRUARY 9, 2024/kr
Signature Not Verified
W.P.(C) 2000/2024 Page 5 of 5
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:10.02.2024
19:28:04