Dismissed

Mr Sandeep Thadeshwar v. Iifl Home Finance Ltd.

DRT9 Jun 2023SA/12/2023

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal rejected an amendment application filed in aSpecial Appeal challenging a possession notice. The applicant sought to introduce facts regarding unserved notices and possession taken by an Assistant Registrar. The court held that the main appeal was infructuous as possession was already taken and the amendment was filed at a belated stage without sufficient grounds.

What the court decided

AI extract

09/06/2023

Ex.
No.

Before Presiding Officer Dr. Rekha G.
Dhakar, DRT-1, Mumbai.
I.A. No. 713/2023 in
SA 12 of 2023
Mr Sandeep Thadeshwar Vs IIFL Home
Finance Ltd

Next date

Advocate Rafeeq M. appeared i/b T.
N. Tripathi & Co for the Applicant.
Advocate Aparna D. Jagtap appeared
for the Respondent No. 1.
Advocate Vaishali B. appeared for the
Respondent No. 2.
I.A. No. 713/2023
1. By way of the present I.A. the
applicant is seeking permission to
carry out the amendment as per
the Schedule annex thereto.

2. Ld. Counsel for the Applicant
submits
that
the
Respondent

Financial Institution did not serve
the demand notice u/S 13(2) of

SARFAESI 2002, and also not

served
the
sale
notice

dt.05/12/2022
and
also
the

possession was taken by the Asst.

Registrar on 21/02/2023 whereas
Ld. CMM substituted the
Assistant Registrar and appointed the Advocate Commissioner vide order dt.24/01/2023. However,
these facts are not in the
knowledge of the Applicant at the
time of filing of S.A. But
subsequently the Applicant came
to know about these facts and
these facts are the very important
to decide the present S.A. Thus, he submits the present application for
amendment in the S.A. may be
allowed.
3. He stated that the Respondent
Financial Institution in their letter
dt. 22/03/2023 1st time informed
the Applicant that mortgaged
property was sold in auction
conducted on 23/12/2022 and sale
certificate was also issued to the
auction purchaser. He also stated
that the demand notice was never
served upon the Applicant and the
track report of the demand notice

Registrar on 21/02/2023 whereas

Ld.
CMM
substituted
the

Assistant Registrar and appointed
the Advocate Commissioner vide
order dt.24/01/2023. However,

these
facts
are
not
in
the

knowledge of the Applicant at the

time
of
filing
of
S.A.
But

subsequently the Applicant came

to know about these facts and

these facts are the very important

to decide the present S.A. Thus, he
submits the present application for

amendment in the S.A. may be

allowed.

3. He stated that the Respondent

Financial Institution in their letter

dt. 22/03/2023 1st time informed

the Applicant that mortgaged

property was sold in auction

conducted on 23/12/2022 and sale

certificate was also issued to the

auction purchaser. He also stated

that the demand notice was never

served upon the Applicant and the

track report of the demand notice

dt.15/11/2019 reveals that destination pin code was 400001 and delivery location was Mumbai
GPO thus the track report duly established that demand notice
was not served upon the
Applicant address.
4. Thus he submits the amendment application may be allowed.
5. In respect of the contention of the
Ld. Counsel for the Applicant
relied on the judgement Bhagmal
and Others Vs Kunwar Lal and
Others.
6. _Pre contra_Ld. Counsel for the
Respondent Financial Institution
strongly objected to the present
Application and submits that the
Applicant by way of the present
I.A. is trying to introduce the facts
which were available to the
Applicant prior to filing of the
present SA.
7. She also submits that the
Respondent Financial Institution

dt.15/11/2019
reveals
that
destination pin code was 400001
and delivery location was Mumbai

GPO thus the track report duly
established that demand notice

was
not
served
upon
the

Applicant address.

4. Thus he submits the amendment
application may be allowed.

5. In respect of the contention of the

Ld. Counsel for the Applicant

relied on the judgement Bhagmal

and Others Vs Kunwar Lal and

Others.

6. _Pre contra_Ld. Counsel for the

Respondent Financial Institution

strongly objected to the present

Application and submits that the

Applicant by way of the present

I.A. is trying to introduce the facts

which were available to the

Applicant prior to filing of the

present SA.

7. She
also
submits
that
the

Respondent Financial Institution

has placed all the track report on
record which established that all
the action were duly being served
upon the Applicant including the
demand notice, the possession
notice as well as the sale notice,
however, the Applicant chooses
not to challenge the same, thus
now the Applicant is not entitled
to raise these objection at such
belated stage.
8. She also submits that so far as
possession was taken on
21/02/2023 by the Assistant
Registrar not in manner prejudice
the Applicant. Thus, she submits
the present I.A. may be dismissed.
9. In support of her contentions the
Ld. Counsel for the Respondent
Financial Institution relied on the
judgement Shriyash Shashikant
Kulkarni Vs Fullerton India Credit Company Ltd.
10. Ld. Counsel for the Auction Purchaser submits that the

has placed all the track report on

record which established that all

the action were duly being served

upon the Applicant including the

demand notice, the possession

notice as well as the sale notice,

however, the Applicant chooses

not to challenge the same, thus

now the Applicant is not entitled

to raise these objection at such

belated stage.

8. She also submits that so far as

possession
was
taken
on

21/02/2023
by
the
Assistant

Registrar not in manner prejudice

the Applicant. Thus, she submits

the present I.A. may be dismissed.

9. In support of her contentions the

Ld. Counsel for the Respondent

Financial Institution relied on the

judgement Shriyash Shashikant

Kulkarni Vs Fullerton India Credit
Company Ltd.

10. Ld. Counsel for the Auction
Purchaser
submits
that
the

Auction purchaser already
deposited the entire amount and
the sale certificate is issued in the
favour of the Auction Purchaser
now the Auction Purchaser
entitled for vacant possession of
the property in question. But, due
to the present application the
Respondent Financial Institution
still not provide the vacant
possession to the auction
purchaser. Thus, she submits that
the Respondent Financial
Institution may be directed to
handover the actual physical
possession to the auction
purchaser. She also submits that
the sale was conducted in
accordance with the SARFAESI
Act and Rules thereto.
11. Having heard the rival
contentions of the parties and
gone through the record.
12. The record reveals that the present
S.A. was filed on 20/02/2023 and
the Applicant herein prayed to

Auction
purchaser
already

deposited the entire amount and

the sale certificate is issued in the

favour of the Auction Purchaser

now
the
Auction
Purchaser

entitled for vacant possession of

the property in question. But, due

to the present application the

Respondent Financial Institution

still
not
provide
the
vacant

possession
to
the
auction

purchaser. Thus, she submits that

the
Respondent
Financial

Institution may be directed to

handover
the actual
physical

possession
to
the
auction

purchaser. She also submits that

the
sale
was
conducted
in

accordance with the SARFAESI

Act and Rules thereto.

11. Having
heard
the
rival

contentions of the parties and

gone through the record.

12. The record reveals that the present

S.A. was filed on 20/02/2023 and

the Applicant herein prayed to

quash and set aside the impugned possession notice dt.24/01/2023 and all the subsequent measures
to be adopted and the steps be
taken by the Respondent Financial Institution.
13. Records also reveals that this
tribunal vide order dt.21/02/2023 dismissed the interim relief as the
possession was already taken by
the Respondent Financial
Institution.
14. Admittedly, the Applicant herein
challenged only the possession
notice dt.24/01/2023, in the
present S.A. and now the
Respondent FI already taken he
possession of the property in
question, thus the main prayer of
the S.A. has become infructuous.
15. The Applicant herein by way of
the present I.A. interested to
change the complete nature of the
present S.A. at this belated stage.

quash and set aside the impugned
possession notice dt.24/01/2023
and all the subsequent measures

to be adopted and the steps be

taken by the Respondent Financial
Institution.

13. Records also reveals that this

tribunal vide order dt.21/02/2023
dismissed the interim relief as the

possession was already taken by

the
Respondent
Financial

Institution.

14. Admittedly, the Applicant herein

challenged only the possession

notice
dt.24/01/2023,
in
the

present
S.A.
and
now
the

Respondent FI already taken he

possession of the property in

question, thus the main prayer of

the S.A. has become infructuous.

15. The Applicant herein by way of

the present I.A. interested to

change the complete nature of the

present S.A. at this belated stage.

16. It is also important to note herein
that the Applicant herein has
placed on record the 2nd E-auction notice dt.27/12/2021 and the said
sale notice was sent on the same
address on which the demand
notice as well as the other sale
notice were sent, however, the
Applicant herein chooses to accept
the only 2nd E-auction notice
whereas, the Respondent
Financial Institution placed on
record the track record of the
demand notice dt.15/11/2019 as
well as first sale notice dt.
13/10/2020 and 3rd sale notice
dt.5/12/2022 and all three notice
were already been received by the
Applicant herein as per the track
report, but the Applicant did not
place them on record.
17. The present application is filed on
25/04/2023 and the Applicant
interested to bring on record the
action of the Respondent FI which
took place in the year 2019, 2020,

16. It is also important to note herein

that the Applicant herein has

placed on record the 2nd E-auction
notice dt.27/12/2021 and the said

sale notice was sent on the same

address on which the demand

notice as well as the other sale

notice were sent, however, the

Applicant herein chooses to accept

the only 2nd E-auction notice

whereas,
the
Respondent

Financial Institution placed on

record the track record of the

demand notice dt.15/11/2019 as

well as first sale notice dt.

13/10/2020 and 3rd sale notice

dt.5/12/2022 and all three notice

were already been received by the

Applicant herein as per the track

report, but the Applicant did not

place them on record.

17. The present application is filed on

25/04/2023 and the Applicant

interested to bring on record the

action of the Respondent FI which

took place in the year 2019, 2020,

Mr Sandeep Thadeshwar v. Iifl Home Finance Ltd.

Case brief

What is this about?

What the court decided

Mr Sandeep Thadeshwar v. Iifl Home Finance Ltd.

Case brief

What is this about?

What the court decided

A compact analysis

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