Dismissed

Mrs Shikha Garg v. Aditya Birla Finance Ltd. and Others

DRT22 Jul 2022SA/161/2022

Case brief

AI extract

What is this about?

The tribunal dismissed an application seeking to quash an order allowing the Aditya Birla Finance Ltd. to take physical possession of mortgaged residential property. Despite the applicant's claims of coercion and finding of fraud, the court held she is a co-borrower who admitted liability, finding no fault in the bank's recovery process. The application is devoid of merit.

What did the court decide?

Application for quashing the order dated 30.04.2022 for taking physical possession is dismissed; the bank is at liberty to take further steps.

Mrs Shikha Garg versus Aditya Birla Finance Ltd. and Others — Banking and Recovery | DRT (2022)

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Shikha Garg v. IWs Aditya Birla Finance Ltd.

S.A. No. 16112022

Item no. 56

Dated:22.07.2022

Present: Ms. Palak, Counsel for the Applicants.

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Sh. Anandita Singh, Counsel for the Respondent FI

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Sh. RR Kumar, Counsel for respondent no. 2

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Two separate rejoinders frled by applicant to the replies filed by respondent no. 1

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& 2. Arguments heard. Vide separate detailed order of even date, the present SA -p.r.

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is dismissed. The respondent barfl< is at liberty to take further steps in accordance

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with law, qua the property in question.

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File be consigned to records.

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.,, (RAJESIT MALHOTRA) PRESIDING OFFICER DRT-II, DELHI

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SANo. 161/2022 Shikha Garg v. lWs Aditya Birla Finance Ltd.

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Before RAJESH MALHOTRA, Presiding Ollicer Debts Recovery Tribunal-Il, Delhi.

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S.A. No. 16112022

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Date of Institutiot: 21.06.2022 Date of decisi on: 22.07 .2022

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Smt. Shikha Garg Wo Sh. Satish Garg R./o Flat No. C-501, Apex Green Valley, Sector-9, Vaishali, Ghaziabad (UP)

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... Applicant

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Versus

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Aditya Birla Finance Ltd. Having its Branch Office at: N- I 7, I^s Floor, Vijaya Building, Barakhamba Road, NewDelhi- 110001

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Through its Authorized Representative

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Sh. Satish Garg S/o Sh. N. K. Garg C/o S. K. Medicos Pocket-B, Shop No. 10 & 14, Dilshad Garden, Delhi - I10095

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... Respondents

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Argued by: Ms. Palak Mathur, Counsel for the Applicant

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Sh. Anandita Singh, counsel for the Respondent FI Sh. R. R. Kumar, counsel for Respondent No. 2

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FINAL ORDER

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l. The Applicants, aggrieved by impugned order dated30.04.2022

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by the Ld. ADM, Ghaziabad in Case Ni.2068/2022 titled as 'Aditya

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Birla Finance Ltd. Vs, S. K. Medicos & Ors.' to take^physical possession of her property bearing No. C-501, Apex Green Valley, Sector-9, Vaishali, Ghaziabad (UP)^(hereinafter refereed to as the 'propery in question'), praying therein to quash t@ innpugngd order t 5'

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(RT{JESH MALhOTTTA) PRESIDING OFFICER DRT-II, DELHI

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SANo. 161/2022 Shikha Garg v. lvlls Aditya Birla Finance Ltd.

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& intimation letter dated 11.06.2022 issued by Respondent No. I to take physical possession on27.06.2022 and to direct respondent no.

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2 to pay the outstanding dues of Respondent No. I FI.

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The brieffacts ofthe case are that the applicant is a house wife. Her husband, Satish Garg/Respondent No. 2 was initially the Proprietor of IWs S. K. Medicos, who had taken a Housing Loan, from PNB Housing against the security of the property in question. When an outstanding of t45.0 Lakhs approximately, remained, he again availed a loan of{77.0 Lakhs from Respondent No. l, and get adjusted balance the <45 lacs, but thereafter, paying some instalments, he defaulted and also cleverly left the proprietorship concem in favour of his parents.

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Meanwhile the respondent No. 2 got intimate with a woman, working in S. K. Medicos and started behaving cruelly with the applicant. On learning about adultery, the applicant was forced to approach the Mahila court, to save herself and her two minor chil&en from being dispossessed of her matrimonial home. During this period, respondent No. 2, launched a firm by the name and style of IWs Garg Trading, in which the applicant was made the Proprietor, but all e-mail addresses and phone numbers etc. were of the Respondent No. 2. Income Tax Retums were also filed. Being a simple housewife, the applicant put her signature, wherever, her husband, Respondent No. 2, asked him to put. When the applicant filed a case against him, the Respondent No. 2 along with his parents,

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9D I t) (RAJESH MALHOTRA) PRESIDING OFFICER DRTJI, DELHI

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SANo. 16112022 Shikha Garg v. lvlls Aditya Birla Finance Ltd.

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moved to another flat nearby. The instalments of the loan taken from Respondent No. 1, were used to be paid by Respondent No. 2, but during the last few months, he defaulted intentionally, despite having good sources of income, employing several staff, maintaining two cars and having several properties in his name. The Mahila Court in its interim order dated 15.11.2021 had directed protection ofthe right of the applicant to stay in the shared household, directing Respondent No. 2 to pay the maintenance and electricity charges before the next date ofhearing.

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Due to non payment of instalments by Respondent No. 2, the Respondent No. I issued notices dated 03.03.2022 md dated 11.06.2022 taking symbolic possession, which were not served to the applicant, but affixed at the gate of the property in question. The applicant is a mere housewife and entirely dependent on the Respondent No. 2 to pay the outstanding of Respondent No.l . In this regard, an application dated 14.03.2022 has been moved before the Mahila Court, seeking directions to Respondent No. 2 to pay the instalments due and regularize the account maintained with Respondent No. l, which is under consideration, at that court.

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The Respondent No. I has obtained an order dated 30.04.2022 from the Ld. ADM, Ghaziabad U/s 14 of the SARFEASI Act, 2002 for taking physical possession of the applicant's matrimonial home i.e. the property in question. Based on the same, Respondent No. l, has issued a notice dated 11.06.2022 for taking

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'l t (RAJESH MALHOTRA) PRESIDING OFFICER DRT-II, DELHI

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SANo. 16112022 Shikha Garg v. lvlls Aditya Birla Finance Ltd.

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physical possession on 27.06.2022. The applicant prays to quash,/set aside the said order by ADM, Ghaziabad and to direct the respondent No. 2 to regularise the account by paying the overdue amount or the entire outstanding of <79,91,4581-, as in case the RespondentNo. I dispossess her and her minor children, it shall make them homeless and prone to natural calamities on the road.

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On notice, by this Tribunal, the Respondents caused appeaftrnce and filed their replies. Vide order dated 27.06.2022, the physical possession ofthe property in question was stayed till the next date of hearing and the respondent FI was asked to explore recovery through other assets of Respondent No. 2.

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In its reply, the Respondent Bank has vehemently denied the averments made in the SA and stated that the present application is an abuse of process of law, with an intention to delay the process of recovery. The present application is barred by limitation, as it challenges the order dated 30.04.2022, bttt has been filed on 21.06.2022. The applicant of the present application is a coborrower, who has signed all the security documents and mortgaged the property in question in favour ofthe answering respondent. She is an educated lady and her averment that she has signed all the documents in good faith is not maintainable. Order by the Ld Judge of family court is not binding upon the respondent, as it has not been made a party to the domestic dispute case. Further, all other courts except the DRT, are barred to entertain any application, against

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(RAJESH MALHOTRA) PRESIDING OFFICER DRT.II, DELHI

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SANo. 16112022 Shikha Garg v. NiUs Aditya Birla Finance Ltd.

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measures/action taken by a secured creditor under the SARFAESI Act,2002. The applicant has admitted her liability, which at present is 185,10,022l- as or27.06.2022.

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The applicant, along with Sh. Satish Garg and the firm M.s S. K. Medicos collectively approached the respondent FI for a loan of {77,00,000/-, which was duly sanctioned and disbursed in terms of loan agreement dated 26.12.2020 and was secured by the equitable mortgage of the property in question. On the failure of the borrowers to maintain financial discipline, the account was classified as NPA on 05.112021. Failing to elicit any response, a Demand notice u/s l3(2) of the SARFAESI Act,2002 dated 18.02.2021 for <79,91,4581- has been served on all the borrowers/guarantors. Possession notice dated 03.03.2022 was issued and published to take symbolic possession on that date. Thereafter an appl ication under Section 14 was moved before the Ld. District Magistrate, Ghaziabad, seeking assistance to take physical possession of the charged asset i.e. the property in question. All the rules have been followed in taking measures under the SARFAESI Act and any relief granted to the applicant shall defeat the objective of the said Act. Hence, it is prayed to dismiss the present application.

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Respondent No. 2 in his reply has stated that applicant has not come before this Tribunal, with clean hands. She is running a business by the name and style of M/s Garg Traders, besides earnings from tuitions at home. She has filed a false case of

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gP,*,2 t/ (RAJESH MALHOTRA) PRESIDING OFFICER

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SANo. 161/2022 Shikha Garg v. lrtUs Aditya Birla Finance Ltd.

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domestic violence against the answering respondent, by order wherein the respondent is paying a sum of { 6,000/- per month to her as interim maintenance, besides school fees of the two children. A divorce petition has already been filed by the respondent on the grounds of cruelty, as he has been thrown out of the property in question. Due to financial problems and mental agony due to harassment by the applicant, he was not able to pay the EMI to the respondent no. l.

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On 21.07.2022, SA applicant filed separate rejoinder to the individual replies submitted by respondent no. 1 and respondent no. 2, wherein applicant denied the contents ofthe respective replies and asserted the submissions made in the securitization application filed by her.

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After hearing the rival submissions, I have given my thoughtful consideration to the same. The documents filed on behalf of respondent FI reflects that lWs SK Medicos is borrower and respondent no. 2 Satish Kumar Garg, his mother Smt. Lalita Devi and SA applicant Smt. Shikha Garg as co-borrowers for getting loan of {77 lacs for 180 months against residential property i.e. Flat no. 501, 5th Floor, Apex Green Valley, Block-C, Village-Prahaladgarhi, Pargana Loni, Tehsil and District-Ghaziabad. All the parties signed on the loan agreement. The securitization application filed by applicant Shikha Garg and her two separate rejoinders to the replies reflect that applicant has taken the plea that she has signed the

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S D

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(RAJESH MALHOTRA) PRESIDING OFFICER DRT-II, DELHI

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SANo. 16112022 Shikha Garg v. lvl/s Aditya Birla Finance Ltd.

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documents in good faith at the instance of her Husband Satish Kumar Garg. She further took the plea that fraud was committed upon her by her Husband in collusion with the offrcials of respondent FI. The signing of the documents at the instance of her Husband/respondent no. 2 for obtaining a loan of {77 lacs, is no ground to restrain respondent FI from taking over the physical possession of the mortgaged subject property, in any manner. A perusal of the records reveals that no deficiency in the rules to be followed by the secured creditor has been brought on record or averred, except the denial of service of notices, but simultaneously admitting affixation of the same on the property in question. In view ofthe above facts, having sympathy with the applicant, I find no fault on the part of the respondent FI, to restrain it to exercise its rights under the SARFAESI Act,2002 for taking over the physical possession.

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Accordingly, the present application is hereby dismissed. The 'F.T. respondent baak is at liberty to take further steps in accordance with law, qua the property in question.

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File be consigned to records.

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Pronounced, as above (Pronounced in Open Court) Dated:22.07.2022

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( t-, sD .\ '.. (RAJESH MALHOTRA) PRESIDING OFFICER DRT-II, DELHI

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Note: All the pages of this final order are checked & signed by me.

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I^9? (RAJESH MALHOTRA) PRESIDING OFFICER DRT-II, DELHI

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Mrs Shikha Garg v. Aditya Birla Finance Ltd. and Others

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Mrs Shikha Garg v. Aditya Birla Finance Ltd. and Others

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