Dismissed

Baker Impex Private Limited v. Sicom Limited

DRT22 Nov 2023SA/124/2023

Case brief

AI extract

What is this about?

The Tribunal dismissed two Securitisation Applications challenging actions under the SARFAESI Act. The court held the applications were time-barred as no delay was condoned and found substantial since the applicants waived rights or failed to make mandatory pre-deposit required for appeals. The challenges to possession and notices were rejected as untenable.

What did the court decide?

Securitisation Application No.124 of 2023 and Securitisation Application No.125 of 2023 stands dismissed.

Baker Impex Private Limited versus Sicom Limited — Company and Corporate | DRT (2023)

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Presented on : 28.03.2023 Registered on : 29.08.2023 Decided on : 22.11.2023 Duration : Y M D 00 07 25

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IN THE DEBTS RECOVERY TRIBUNAL No.2, MUMBAI SECURITISATION APPLICATION NO.124 OF 2023

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Baker Imp-Ex Pvt. Ltd., A company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Plot No.96-B, Ground Floor, 15^th Road, Bandra West, Mumbai400050.

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… Applicant

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Versus

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SICOM Ltd., A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act 2013, is also a NonBanking Finance Company having its registered office at Solitaire Corporate Park, Building no.4, Guru Hargovindji Road, Andheri (East) Mumbai-400093 through its authorized officer.

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Shree Balaji Homes Private Limited, A company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Ground Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai – 400050.

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Mrs Sunita D. Narang, An adult

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Indian Inhabitant residing at Narang Manor, 5^th Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai400050.

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Mr Dilip Narang, Through his legal heirs being- (i) Mr Kunal D. Narang, (ii) Mrs Pamela Kajaria Adult Indian Inhabitant residing at Narang Manor, 6^th Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai400050.

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Baker Technical Services Private Limited, A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Ground Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai-400050.

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Narang Developers Private Limited, A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Ground Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai400050.

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Narang Ville Private Limited, A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Ground Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai400050.

…Defendants

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AND

Presented on : 27.03.2023 Registered on : 29.03.2023 Decided on : 22.11.2023 Duration : Y M D 00 07 26

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SECURITISATION APPLICATION NO.125 OF 2023

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M/s. Shree Balaji Homes Pvt. Ltd., A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Ground Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai-400050.

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Mrs Sunita D. Narang, An adult Indian Inhabitant residing at Narang Manor, 5^th Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai – 400050.

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Mr Dilip Narang, Through his legal heirs being(i) Mr Kunal D. Narang, (ii) Mrs Pamela Kajaria Adult Indian Inhabitant residing at Narang Manor, 6^th Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai-400050.

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Baker Technical Services Private Limited, A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Ground Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai-400050.

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Page 3 of 13

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Narang Developers Private Limited, A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Ground Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai-400050.

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Narang Ville Private Limited, A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013 having its registered office at Narang Manor, Ground Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai-400050.

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Ms Mona Narang, An adult Indian Inhabitant residing at Narang Manor, 4^th Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai – 400050.

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Mr Amarchand Narang, An adult Indian Inhabitant residing at Narang Manor, 4^th Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai – 400050.

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Mr Amit Narang, An adult Indian Inhabitant residing at Narang Manor, 3^rd Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai – 400050.

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Mrs Gunit Narang, An adult Indian Inhabitant residing at Narang Manor, 3^rd Floor, Plot No.96-B, 15^th Road, Bandra West, Mumbai – 400050. Versus

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… Applicants

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SICOM Ltd., A Company incorporated under the Companies Act, 1956 and subsisting under the Companies Act, 2013, also a NonBanking Finance Company having its registered office at Solitaire Coporate Park, Building no.4, Guru Hargovindji Road, Andheri (East) Mumbai-400093 through its authorized officer. …Defendant

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APPEARANCES
For the Applicant(s)	: Mr Yash D Tushar A. Gor	hakkad adia - A	i/b dvoca	Mr te
For Defendant(s)	: Mr Rishabh	Shah	and	Mr
	Nikhil Gupta	i/b M/	s. W	adia
	Ghandy & Co.	– Advoc	ates

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Shri Deepak M Thakkar Presiding Officer

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RESERVED ON : 8^th November 2023 PRONOUNCED ON : 22^nd November 2023

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J U D G M E N T

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(1) On 18^th May 2023, the Tribunal passed an order in I.A.No.786 of 2023 in S.A.No.124 of 2023 and I.A.No.785 of 2023 in S.A.No.125 of 2023 giving the details of the parties and the fact of the case. On 30^th June 2023, the Tribunal listed the matter for arguments on “ maintainability ”.

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(2) On 20^th October 2023, the applicant(s) counsel

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expressed inability to argue for want of instructions . The Tribunal heard the secured creditor’s counsel. After hearing the secured creditor’s counsel, the Tribunal posted the matter for pronouncement of judgment.

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(3) In S.A.No.124 of 2023, the applicant prayed for the following orders and reliefs:

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(a) Set aside the Notice dated 11th January, 2019 issued by the Respondent under Section 13(2) of the SARFAESI Act and all actions taken by the Respondent pursuant to the said Notice dated 11th January, 2019 including but not limited to the Order dated 15th March, 2022 and 29th March, 2022 passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai and the Notice dated 1st March, 2023 issued by the court commissioner which was discovered by the Applicant on March, 2023

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(b) Set aside the Symbolic Possession Notice dated 7th June, 2019 issued by the Respondent in respect of the Secured Asset, restore possession of the Secured Asset to the Applicant and set aside all actions taken by the Respondent pursuant to the said Symbolic Possession Notice dated 7th June, 2019 in respect of the Secured Asset including but not limited to the Order dated

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15th March, 2022 and 29th March, 2022 passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai and the Notice dated 1st March, 2023 issued by the court commissioner which was discovered by the Applicant on 13th March, 2023;

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(c) Set aside the Order dated 15th March, 2022

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and the Order dated 29th March, 2022 passed by the Chief Metropolitan Magistrate, Esplanade Mumbai in Case No.750/SA/2019 and all actions taken by the Respondent or the Court Commissioner appointed by the Chief Metropolitan Magistrate, Esplanade Mumbai pursuant to the said Order dated 15th March, 2022 read with the Order dated 29th March, 2022;

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(d) Set aside the Notice dated 1st March, 2023 issued by the Assistant Registrar, Bandra Centre of Courts, Mumbai and restrain the Assistant Registrar, Bandra Centre of Courts, Mumbai and the Respondent from taking any steps pursuant to the said Notice dated 1st March, 2023.

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(e) Grant such other reliefs as may be deemed just and necessary in the facts and circumstances of the present case.

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And

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in S.A.No.125 of 2023, the applicants prayed for

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the following orders and reliefs:

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(a) Set aside the Notice dated 11th January, 2019 issued by the Respondent to Applicant Nos.1 to 6 under Section 13(2) of the SARFAESI Act and 11 actions taken by the Respondent pursuant to the said Notice dated 11th January, 2019 including but not limited to the Order dated 15th March, 2022 and 29th March, 2022 passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai and the Notice dated 1st March, 2023 received from the court commissioner by the Applicants on 13^th March, 2023;

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(b) Set aside the Symbolic Possession Notice dated 7th June, 2019 issued by the Respondent in respect of secured Asset 1 and all actions taken by the Respondent pursuant to the said Symbolic Possession Notice dated 7th June, 2019 in respect of Secured Asset 1;

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(c) Set aside the Symbolic Possession Notice dated 7th June, 2019 issued by the Respondent in respect of Secured Asset 2 and all actions taken by the Respondent pursuant to the said Symbolic Possession Notice dated 7th June, 2019 in respect of Secured Asset 2;

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(d) Set aside the Symbolic Possession Notice

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dated 7th June, 2019 issued by the Respondent in respect of Secured Asset 3 and all actions taken by the Respondent pursuant to the said Symbolic Possession Notice dated 7th June, 2019 in respect of Secured Asset 3

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(e) Set aside all actions taken by the Respondent pursuant to the said Symbolic Possession Notice dated 7th June, 2019 in respect of Secured Asset 1 and restore possession of Secured Asset 1 to Applicant No.2;

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(f) Set aside all actions taken by the Respondent pursuant to the said Symbolic Possession Notice dated 7th June, 2019 in respect of Secured Asset 2 and restore possession of Secured Asset 2 to Applicant No.3;

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(g) Set aside all actions taken by the Respondent pursuant to the said Symbolic possession Notice dated 7th June, 2019 in respect of Secured Asset 3 and restore possession of Secured Asset 3 to Applicant No.4;

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(h) Set aside the Order dated 15th March, 2022 and 29th March, 2022 passed by the Chief Metropolitan Magistrate, Esplanade Mumbai in Case No.750/SA/2019 and all actions

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taken by the Respondent or the Court Commissioner appointed by the Chief Metropolitan Magistrate, Esplanade Mumbai pursuant to the said Order dated 15th March, 2022;

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(i) Set aside the Notice dated 1st March, 2023 received on 13th March, 2023 issued by the Assistant Registrar, Bandra Centre of Court, Mumbai and all actions taken by the Assistant Registrar, Bandra Centre of Court, Mumbai or the Respondent pursuant to the Notice dated 1st March, 2023.

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(j) Set aside all actions taken by the Respondent pursuant to the Notice dated 11th January, 2019 issued by the Respondent to Applicant Nos.1 to 6 as the same is not in accordance with the provisions of the SARFAESI Act and the rules made thereunder;

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(k) Grant such other reliefs as may be deemed just and necessary in the facts and circumstances of the present case.

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(4) On 8^th November 2023, secured creditors’ counsel filed pursis (exhibit-16) in S.A.No.124 of 2023, stating that on 23^rd October 2023, the 1^st applicant in S.A.No.125 of 2023 addressed a letter to the secured creditor. By the said letter, Mr Amit Narang, the director, requested the Defendant to grant time till 31st December

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2023 to vacate the 5th and 6th floor of the mortgaged premises. The 1^st applicant, through its director, requested the secured creditor not to take any steps relating to the mortgaged premises and grant time till 31^st December 2023 to enable them to hand over the physical possession to it. On 25^th October 2023, the secured creditor addressed a letter to the Assistant Registrar stating that (i) the taking of physical possession scheduled on 30^th October 2023, (ii) the borrowers requested agreed to hand over the possession of the entire 5^th and the 6^th floor of Narang Manor on or before 31^st December 2023, and (iii) its management decided to defer taking physical possession on 30^th October 2023 till 15^th December 2023. In short, the secured creditor granted one more opportunity to the borrowers to hand over the physical possession of the entire 5^th and 6^th floors on or before 15^th December 2023.

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(5) On 27^th March 2023, the applicants presented S.A.No.125 of 2023, and on 28^th March 2023, the applicant presented S.A. No.124 of 2023 under Section 17(1) challenging the action and measures under the SARFAESI Act read with the Rules.

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(6) Mr Shah took the Tribunal through paragraphs 4 and final reliefs in both cases, which reveals that the applicant in S.A. No.124 of 2023 and applicants S.A.No.125 of 2023 did not apply to condone the delay

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challenging (i) the symbolic possession and (ii) the Section 14 order. Therefore, both the Securitisation Applications are time-barred and require dismissal by the Tribunal.

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(7) Mr Shah relied upon (i) paragraph 4 in Deepika Paresh Thakkar Versus Gruh Finance Ltd. & Ors., passed by the Hon’ble Bombay High Court, (ii) paragraphs 15 and 16 in ARCE Polymers Pvt Ltd. Versus Alpine Pharmaceuticals Pvt. Ltd. & Ors. (2022) 2 Supreme Court Cases 221, (iii) paragraph 24 in Prestige Lights Ltd. Versus State Bank of India (2007) 8 Supreme Court Cases 449 and (iv) Celir LLP Versus Bafna Motors (Mumbai) Pvt. Ltd. & Ors. 2023 SCC OnLine SC 1209.

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(8) By the letter dated 25^th October 2023, the borrowers conceded to hand over the physical possession of the entire 5^th and 6^th floors of the mortgaged properties to the secured creditor. Therefore, the relief challenging the authorised officer’s measure of taking physical possession has not become redundant or nullified by the letter dated 25^th October 2023.

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(9) Regarding the mortgaged premises on the 1st floor, the applicant in S.A.No.124 of 2023 admits that it is a secured asset. The applicant in S.A.No.124 of 2023 preferred an Appeal before the Hon’ble DRAT meeting its fate upon failure to make the mandatory pre-deposit under Section 18 of the SARFAESI Act. Thus, the Tribunal’s Order dated 18^th May 2023 passed in I.A.No.786 of 2023 in S.A.No.124 of 2023 attained finality.

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(10) The Tribunal noted that the applicant in S.A.No.124 of 2023 and applicants in S.A.No.125 of 2023 waived, relinquished or abandoned the legal rights to challenge the 13(2) notice dated 11^th January 2023. The secured creditor’s reliance on the judicial precedent in ARCE Polymers Pvt Ltd. Versus Alpine Pharmaceuticals Pvt. Ltd. & Ors. (2022) 2 Supreme Court Cases 221 is fully justified.

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(11) The applicants agreed to pay the amount as recorded in the Order dated 18^th May 2023. Therefore, the Defendant rightly relied upon the Prestige Light (supra) and Deepika Paresh Thakkar (supra) judgement.

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(12) After examining the facts and circumstances of the case and the material placed on record, the Tribunal believes that the action and measures taken by the secured creditor are as per the SARFAESI Act and the rules made therein.

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