Disposed

Lt Col Jagdish Chandra Sharma v. Edelweiss Asset Reconstruction Company Limited

DRT16 Feb 2023SA/166/2022

Case brief

AI extract

What is this about?

The Tribunal disposed of an SA filed to quash auction notices as infructuous since the creditor withdrew the demand notice. It held that disputes over mortgage breaches belong to appropriate forums, not this Tribunal under the SARFAESI Act.

What did the court decide?

The Substantive Application was disposed of as infructuous with no causes of action remaining.

Lt Col Jagdish Chandra Sharma versus Edelweiss Asset… — Company and Corporate | DRT (2023)

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING OFFICER: SH. VIVEK SAXENA

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SA No.- 166/2022

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Lt. Col. Jagdish Chandra Sharma S/o Radha Krishna Sharma, residing at

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Flat no. 601, K.K. Towar (Ghiya Marg), Bani Park, Jaipur (Raj.)

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.........Applicant

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Versus

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Edelweiss Asset Reconstruction Company Limited, Registered Office at Edelweiss House, off. C.S.T. Road, Kalina, Santacruz (E), Mumbai400 098 through Authorized officer AND Correspondence office at Room No. 606, 6^th Floor, Akash Deep Building, 26A, Barakhamba Road, New Delhi 110001 through Authorized officer.

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SNG Real Estate Private Limited, 707, Paris Point, Collectorate Circle, Bani Park, Jaipur 302016 Rajasthan, through Chairman & Managing Director Mr. Satya Narayan Gupta

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Also At :- C/o. Satya Narayan Gupta and/or Mrs. Sushila Gupta, 1-E19, Shiv Shakti Colony, Shastri Nagar, Jaipur 302016.

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........Respondent

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Mahesh Chandra Sharma, S/o (Late) Sheri Radha Krishna Sharma, C/o. Sheri Subhash Sharma, The Haveli, Tilak Marg, Near Ashok Nagar,Police Statation, Jaipur.

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WG. CDR. Ramesh Chandra Sharma S/o (late) Sheri Radha Krishna Sharma, Rukmani Garden, Shiv Marg, Bani Park, Jaipur 302016.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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Goverdhanlal Gupta s/o (Late) Shri Mohan Kanchawala, H-38 A,

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Tagore Path, Bihari Marg, Bani Park, Jaipur.

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Goverdhanlal Gupta HUF, having its office at H-38 A, Tagore Path, Bihari Marg, Bani Park, Jaipur through Karta Goverdhanlal Gupta.

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Performa-Respondents

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Present

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Smt. Arti Sharma, Counsel for the applicant

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Shri Vineet Sharma, Counsel for the Respondent Bank/FI

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(Final Order) (16.02.2023)

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This SA was filed by the SA applicant against the respondent FI and M/s SNG Real Estate Pvt. Ltd. and three other defendants, who remained absent during the pendency of this SA.

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As per facts of the case respondent FI (herein after referred as FI), issued a demand notice on 12.02.2022 in favor of respondent no. 2 and its Directors, as they failed to repay outstanding amount against the credit facility sanctioned in their favor.

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In relief clause, including other relief, prayer to quash & set aside the Auction Notice dated 12.02.2022 and 15.02.2022 is also made.

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On 11.04.2022,Ld. counsel for the SA applicant filed copy of order of Hon’ble NCLT dated 06.04.2022 and prayed as moratorium period is started, so, the respondent FI, may be directed to not to proceed against the respondent no. 2, in the light of provisions of SARFAESI Act of 2002.

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On 06.09.2022, Ld. counsel for the respondent FI, submitted that they have withdrawn the demand notice, issued by them in favor of respondent no. 2, so this SA may be disposed of as infractuous.

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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But this prayer was strongly opposed by Ld. counsel for the SA applicant on the ground that as the issue of mortgaged is to be decided, so SA is required to be heard and decided finally.

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Heard arguments and perused the record.

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From the order dated 06.04.2022 passed by Hon’ble NCLT, Jaipur, it is clear that a financial creditor i.e. Yaduk a Financial Services Ltd, filed application under Section 7 read with 60(5) of the IBC Code 2002 and their application was admitted.

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Demand notice already stands withdrawn and considering this fact only, it is clear that as since the date, when demand notice was withdrawn, no cause of action survive against respondent no. 2.

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So far as the issue of mortgage of subject property, is there, I am of the considered view that such issue is not liable to be entertained by this Tribunal because, if the applicant, is at all aggrieved by any breach of terms & conditions between them and respondent no. 2, they were always at liberty to approach the appropriate forum but definitely not to this Tribunal, which is meant for only to decide the legality of any steps taken by a secured creditor under the provisions of SARFAESI Act of 2002.

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Ld. Counsel for the applicant filed written arguments and raised the issue that respondent no. 2, failed to complete the residential project within 30 month time as stated in MOU. In entire arguments, the applicant claimed that the Defendant no. 2 failed to follow the contractual agreements, so issue of mortgage, is to be decided.

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Accordingly, nothing survives in this SA and so, the same stands disposed of as infractuous.

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It is also important to mention here that the applicant is owner of subject property being land owner and now also having flats constructed over the said land, may be incomplete so the respondent bank do have to recover the amount by way of sale of mortgaged flats only. The SA applicant is at liberty to approach

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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur

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appropriate forum on account of breach of contractual agreement, if

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any, with regard to issue of mortgage only.

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Copy of the order be given free to the concerned parties.

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File be placed before the Registrar for compliance after compliance file be consigned to record, as per rules.