Allowed

New Habitat Housing Finance and Development Ltd. v. Pradeep and Ors.

DRAT26 May 2022MISC APPEAL/75/2022

Case brief

AI extract

What is this about?

The Debt Recovery Appellate Tribunal allowed the appeal, quashing an impugned order that restored possession of secured assets without holding a hearing. The Tribunal remanded the matter to the lower DRT to hear the interlocutory application afresh with notice to both parties.

What did the court decide?

The impugned order dated 22.04.2022 is set aside; the matter is remanded to the DRT to hear the application afresh after giving notice to the appellant.

New Habitat Housing Finance and Development Ltd. versus… — Banking and Recovery | DRAT (2022)

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DEBTS RECOVERY APPELLATE TRIBUNAL, DELHI

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Misc. Appeal No.75/2022

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Arising out of S.A. No.80/2022 (DRT-III, Delhi)

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New Habitat Housing Finance & Development Ltd. Vs. Pradeep & Ors.

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26.05.2022 Hon’ble Mr. Justice Brijesh Sethi

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Present: Mr. Gaurav Srivastava, Ld. Counsel for the appellant

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Ms. Neha Malhotra, Ld. Counsel for respondents

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This matter has been taken up by me through Video Conferencing.

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Vide this order I shall dispose of this miscellaneous appeal filed by the bank with the following prayers:-

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“In view of the facts mentioned in para 5 above, the appellant prays for the following relief(s)

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a) Quash and set aside the impugned order dated 22.04.2022 passed by the Ld. Presiding Officer, I/C,. DRT-II, being Link Officer of DRT-3, Delhi in SA No.80/2022 title “Pradeep And Anr. Vs. New Habitat Housing Finance & Development Limited”

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b) Pass such other and/or further orders as this Appellate Tribunal may deem fit and proper.”

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The impugned order dated 22.04.2022 runs as follows:-

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“Present: Ms. Neha Malhotra, Ld. counsel for S. applicant.

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Since Ld. Presiding Officer, DRT Allahabad, having additional charge of DRT-III, Delhi is on leave today, hence, this matter is taken up by the Presiding Officer, I/C, DRT-II, Delhi being Link Officer on mentioning basis through Video Conferencing.

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In the present matter, one fresh applicant being IA No.518/2022 has been filed on behalf of S. applicant praying therein to direct the respondent FI to deseal the property-in-question, as detailed in IA, and further stay the proceedings against the property.

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Ld. counsel for S. applicant submits that they want to deposit a sum of Rs.12.50 lac with the respondent FI and will also clear their

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-: 2 :-

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dues within 2 months thereafter. She further submits that respondent FI may be directed to de-seal the property-in-question.

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Let S. applicant deposit a sum of Rs.12.50 lac with the respondent FI within 5-days and upon deposit of said amount, respondent FI shall de-seal the property-in-question. Thereafter S. applicant shall clear entire liability, as indicted by respondent FI, within two months and on receipt of the same, the respondent FI shall issue “No Dues Certificate”.

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With the above said directions, IA No.518/2022 stands disposed off accordingly.

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Now the matter stands adjourned to the date already fixed i.e. on 05.05.2022.

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The parties may download the order from the official web-site which will be treated as a true copy as due to COVID-19 & staff constraints, the certified copies cannot be issued as of now till further orders”

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The learned counsel or the appellant bank submits that this order has been passed without issuing notice to the bank and hearing it. The DRT was taking up only the urgent matters at the relevant time. However, this matter was suddenly taken up and the impugned order was passed without hearing the bank. He further submits that as per Section 17(3) of the SARFAESI Act, 2002 restoration of the possession of the property can be resorted to only after examining the facts and circumstances of the case and evidence produced by the parties.

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The learned counsel for the respondents, on the other hand, submits that the order passed by the DRT is in accordance with law and respondents are prepared to deposit the amount, but the bank has not till date provided the statement of account and, therefore, they are unable to make payment. She further states that the respondents will pay the remaining amount also within the stipulated period.

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However, during the course of hearing a dispute has arisen so far as the amount of debt due is concerned.

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-: 3 :-

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I have considered the rival submissions and perused the record. The perusal of the impugned order reveals that the same was passed without issuing notice to the bank and hearing it. There is a dispute regarding the debt due also. Even otherwise, as per Section 17(3) of the SARFAESI Act, DRT can pass order for restoration of the possession of the property after examining the facts and circumstance of the case and evidence produced by the parties. The relevant portion of Section 17(3) of the SARFAESI Act runs as under:-

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“If the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower r other aggrieved person,.........”

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In view of above discussion and the fact that the impugned order has been passed without hearing the bank, this Tribunal is of the view that the impugned order dated 22.04.2022 cannot be sustained in the eyes of law. It is, therefore, set aside and the matter is remanded back to the DRT with a direction to hear the I.A. No.518/2022 filed by the respondents afresh and pass appropriate orders in accordance with law, after hearing both the parties.

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The appeal is accordingly disposed of with the above direction.

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(CHAIRPERSON)

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-pk

New Habitat Housing Finance and Development Ltd. v. Pradeep and Ors.

Case brief

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New Habitat Housing Finance and Development Ltd. v. Pradeep and Ors.

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