Disposed

Sandeep Umakant Thadeshwar v. Iifl Home Finance Limited

DRAT17 Oct 2023IA/542/2023

Case brief

AI extract

What is this about?

The Tribunal allowed an interim application to amend the appeal to include a challenge to the unauthorized taking of possession which occurred after a Magistrate's order discharged the Assistant Registrar. The Court fixed a pre-deposit of 30 lakh rupees, payable in two instalments, for the same appeal to be entertained.

What did the court decide?

Interim application allowed. Appellant directed to deposit 30 lakh in two instalments of 15 lakh each.

Sandeep Umakant Thadeshwar versus Iifl Home Finance Limited — Banking and Recovery | DRAT (2023)

¶1

BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present : Mr. Justice Ashok Menon, Chairperson

¶2

I.A. No. 542/2023 (WoD)

¶3

¶4

Appeal on Diary No. 1393/2023

¶5

Between

¶6

Sandeep Umkant Thadeshwar … Appellant/s V/s.

¶7

IIFL Home Finance Ltd. & Anr. …Respondent/s Mr. Rafeeq Peermohideen, i/b M/s. T.N. Tripathi & Co., Advocate for Appellant.

¶8

Mrs. Uma Fadia, Advocate for Respondent No.1

¶9

Ms. Vaishali Bhilare along with Ms. Kadambari Patil, Advocate for Respondent No.2

¶10

-: Order dated: 17/10/2023:-

¶11

The Appellant is in appeal impugning the dismissal of the Interim Application (I.A.) No. 713/2023 in Securitization Application (S.A.) No. 12/2023 on the files of the Debts Recovery Tribunal-I, Mumbai (D.R.T.) wherein the Appellant had challenged the Sarfaesi measures till the taking over possession of the secured asset u/s 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act” for short). Subsequently, the possession of the property was taken over and the property was also sold in auction. By way of the amendment sought in aforesaid I.A. No. 713/2023, the Appellant wanted to incorporate two things. The first amendment is the challenge to taking over the physical possession of the secured assets by the Assistant Registrar who was earlier Authorized by the order of the Chief Metropolitan Magistrate (CMM) to take possession and had

¶12

¶13

issued a notice on 24.01.2023 stating that he would be taking possession of the property on 21.02.2023. It is pointed out that subsequently, the Respondent Bank had filed an application before the CMM to get the order modified by replacing the Assistant Registrar with a Court Commissioner to take possession of the secured assets and that application was allowed on 24.01.2023 by the CMM and the Assistant Registrar was discharged and in his place, a Court Commissioner was appointed to take over possession of the property. Despite the modified order of the CMM, it is alleged that the Assistant Registrar who ceased having authority to take possession of the property by the modified order, proceeded to take possession of the property on 21.02.2023 and therefore, the Appellant wanted an amendment to the S.A. with regard to the infirmity in taking possession of the property u/s 14.

¶14

The second amendment sought was regarding the challenge of the sale. The Ld. Presiding Officer dismissed the application in holding that the challenge to the sale is barred by limitation. The Ld. Counsel appearing for the Appellant submits that the fresh S.A. has been filed by the Appellant challenging the sale and the order u/s 14. 3. After hearing the Ld. Counsel appearing for the Appellant and on perusal of the impugned order, I find that the Appellant has a prima facie case with regard to the challenge to the authority of the Assistant Registrar to take possession of the property on 21.02.2023 when by order dated 24.01.2023 the CMM had specifically discharged him from taking possession of the property and had authorized the Court Commissioner to take possession on request made by the Respondent Bank. With regard to the challenge of the

¶15

sale which is a subsequent event, a fresh S.A. has been filed and it is pending consideration before the Presiding Officer. Therefore, we are at present not concerned with the amendment pertaining to the challenge of the sale of the property.

¶16

However, the Appellant has to cross the hurdle of making a pre-deposit to entertain the appeal. The Ld. Counsel appearing for the Appellant submits that the amount demanded as per the demand notice issued u/s 13 (2) the demand is for ₹80.03 lakhs and therefore, the threshold amount for calculation of the pre-deposit should be the amount mentioned in the demand notice. The Appellant has contended that he was an employee abroad till January 2023, and thereafter, he lost the job and returned to India. He has little income from any other source in the country and has also in support of his contentions produced the income tax returns for the last three years which indicate that he has income which would not be sufficient to pay 50% of the debt demanded.

¶17

The Ld. Counsel appearing for the Respondent bank, as also the Ld. Counsel appearing for the auction purchaser submit that the Appellant is not entitled to any concession. The income tax returns do not reflect the true state of affairs. It is indicated in the last income tax return for the year 2023-2024 that the Appellant is running Jewellery by the name of Meenakshi Jewellers and there is some income from that also. The profit and loss account of that Jewellery has been produced but that also does not reflect the financial status of the Appellant’s income to be very sound.

¶18

After having heard the rival arguments, I find that the Appellant has to an extent satisfied this Tribunal regarding the prima

¶19

¶20

facie case about the amendment to incorporate the challenge to the taking over possession of the u/s 14 by the Assistant Registrar who did not have the authority on the date of taking possession of the property. With regard to the financial strain, the Appellant has succeeded to some extent in satisfying this Tribunal about his financial strain. The Appellant is, therefore, directed to deposit the sum of ₹30 lakhs as pre-deposit. The amount shall be payable in two equal instalments of ₹15 lakhs each as hereunder.

¶21

Numbers of Instalments	Payment on or before
1^stInstalment of₹15,00,000/-	07.11.2023
2^ndInstalment of₹15,00,000/-	21.11.2023

¶22

Default of payment of any of the instalments shall entail in dismissal of the appeal without any further reference to this Tribunal.

¶23

The amount shall be deposited in the form of a Demand Draft with the Registrar of this Tribunal.

¶24

As and when the said amounts are deposited, they shall be invested in term deposits in the name of Registrar, DRAT, Mumbai, with any nationalised bank, initially for 13 months, and thereafter to be renewed periodically.

¶25

With these observations, the I.A. is disposed of. The Respondents is at liberty to file a reply in the Appeal with an advance copy to the other side.

¶26

Post on 08.11.2023 for reporting compliance regarding the payment of the 1^st instalment.

¶27

Chairperson

¶28

psa-04

¶29

Sandeep Umakant Thadeshwar v. Iifl Home Finance Limited

Case brief

What is this about?

What did the court decide?

Sandeep Umakant Thadeshwar v. Iifl Home Finance Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

All orders in this case

Similar cases

Kotak Mahindra Bank Ltd. versus Ashok Ravjibhai Desai

N/S Esha Farm Pvt. Ltd. versus Bank of Maharashtra & Ors.

Bank of Maharashtra versus Avinash Estate Owners Association and Ors.

Mrs. Sunita Vasant Deshmukh versus the Shamrao Vithal Cooperative Bank

Mr Haresh Mohanlal Mehta versus Capri Global Capital Ltd.

Fiitjee Limite versus Religare Finvest Ltd. and Ors.