Mrs. Karishma Teckchandani vs M/S. L& T Housing Finance Ltd.. And ...
2017 Latest Caselaw 3969 Bom

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               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO. 7239 OF 2017

Mrs. Karishma Teckchandani
Thru Power of Attorney holder,
Shri Suresh Teckchandani,
Age Adult 47 years,
R/o. B-603, Casurina,
Evershine Green, Adarsh Nagar,
Link Road, Andheri West,
Mumbai 400 053.                                                                  ...        Petitioner

                                          Vs.

1.  M/s. L & T Housing Finance Ltd.,
A Finance Company incorporated
under the provisions of Companies
Act, having its Office at:
The Metropolitan, 3rd Floor, 
C-26/C-27, E-Block, Bandra (E),
Mumbai 400 051.

2. Mr. Ajay Wasan,
An Adult, Occ. Business,
R/at. A-1201, Willow Towers Vasant,
Garden Swapna NGR Mulund,
Mumbai 400 080.                                                                  ...  Respondents

Mr. Pankaj Kansara, with Mrs. Manjula Rao, Mr. Shetty, i/b Kansara & 
Thanekar, for the Petitioners.
Uma S. Fadia, with S.N. Fadia, Adv for the Respondent No.1.

                                                        CORAM  :  B.R. GAVAI AND
                                                                     RIYAZ I. CHAGLA, JJ.

                                                        DATE      :  4 JULY 2017.








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J U D G M E N T :-  (Per Riyaz I. Chagla J.)

1. The Petitioner by the present Petition has challenged the

order dated 28th June 2017 passed by the Debts Recovery Appellate

Tribunal ("DRAT") directing the Petitioner to deposit an amount of

Rs.3 Crores within three days, under Section 18 of The Securitisation

and Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 for short ("SARFAESI Act"). The Petitioner claims

to be neither a borrower nor guarantor and has claimed that the

SARFAESI Act is not applicable to the Petitioner. The Petitioner claims

that she had purchased the shop (secured asset) which was mortgaged

by Respondent No.2 to Respondent No.1. An NOC dated 11th March

2016 had been issued by the Respondent No.1 to the Petitioner

wherein Respondent No.2 was allowed to sell the shop to the

Petitioner subject to the terms and conditions mentioned in the NOC.

2. Respondent No.1 in December 2016 had on account of

non-payment of debts taken symbolic possession of the shop under

Section 13(4) of the SARFAESI Act. The Petitioner had filed an

application under Section 17 of the SARFAESI Act in the Debt

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Recovery Tribunal ("DRT") challenging the action of Respondent No.1

under Section 13(4) of the SARFAESI Act. On 10th April 2017, an

application was moved by the Petitioner restraining Respondent No.1

from taking possession of the shop. An order came to be passed by the

DRT -II granting a status quo till next date.

3. On 12th June 2017, the DRT-II vacated the said order

dated 10th April 2017 and directed Respondent No.1 to issue one

week prior notice to the Petitioner or his Advocate of the fixing the

date of taking physical possession of the secured assets. Being

aggrieved by the order dated 12th June 2017, the Petitioner filed an

Appeal under Section 18 of the SARFAESI Act and waiver application

before the DRAT challenging the said order. The DRAT by the

impugned order dated 28th June 2017 rejected the waiver application

and directed the Petitioner to deposit 50% of the Section 13(2) Notice

amount in order to entertain the Appeal. The Petitioner was directed

to deposit the amount within three days and status quo order which

was granted on the previous date, was extended till 3rd July 2017

provided that the amount was deposited on or before 3rd July 2017.

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4. Shri Kansara, learned counsel appearing for the Petitioner

has tendered the impugned order dated 28th June 2017, which had

not been annexed to the Petition filed on 29th June 2017. Shri

Kansara also filed an Affidavit seeking amendment of the Petition in

order that the impugned order could be annexed to the Petition. Shri

Kansara has contended that the Petitioner was aggrieved by the

impugned order as she is neither a borrower nor a guarantor and yet

has been directed by the impugned order to deposit 50% of the notice

amount. Shri Kansara has further contended that by the impugned

order, the DRAT has only extended status quo till 3rd July 2017 i.e. for

a period of three days so as to enable the Petitioner to comply with the

conditional order of deposit of the amount determined by DRAT. The

possession of the secured asset was to be taken on the date of the

impugned order and considering the request of the Petitioner, the

status quo was extended. Shri Kansara has submitted that the

impugned order ought not have been passed as Section 18 of the

SARFAESI Act apply only to a borrower or guarantor and the

Petitioner was neither.

5. Smt. Uma Fadia, the learned counsel appearing on behalf

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of Respondent No.1 has submitted that the impugned order dated

20th June 2017 has been correctly passed by the DRAT and that

Section 18 of the SARFFAESI Act was mandatory and that the

Petitioner had purchased the secured asset i.e. shop from Respondent

No.2 pursuant to the NOC which had laid down the terms and

conditions. The NOC had expressly mentioned that a loan is being

availed of by the Petitioner against the property and that 1st

Respondent's lien is to be marked on the registered Sale Agreement

between the Petitioner and Respondent No.2 and mentioned in the

housing records and share certificate.

6. Shri Kansara in turn has contended that the sale of the

secured asset i.e. shop was at the behest of Respondent No.1 and in

support thereof has relied upon the NOC. Shri Kansara has also relied

upon a prior letter dated 31st October 2015 addressed by the

Petitioner to Respondent No.1, wherein it is mentioned that certain

amount had been paid to Respondent No.1 for purchase of the shop

and had also mentioned about the loan against the shop being availed

of by Petitioner from Respondent No.1 bank. The said letter also

refers to a cheque of Rs.50 lakhs which was issued by the Petitioner

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and which was to be deposited subject to the acceptance and

confirmation of the Sale Agreement on the terms and conditions

mentioned in the letter.

7. Having considered the arguments of both sides, we are of

the view that the impugned order dated 28th June 2017 cannot be

found fault with as the provisions of Section 18 of the SARFAESI Act

are mandatory and the Petitioner having filed an Appeal from the

order of the DRT cannot claim immunity from the mandatory

provision. We are also of the considered view that a mere perusal of

the impugned order would show that the notice under Section 13(2)

of the SARFAESI Act had been issued by the Respondent No.1 bank

and the amount due was a sum of Rs.6,55,24,003.29 on 27th July

2016. The impugned order has also correctly held that the purchase

agreement of the secured asset i.e. the shop had been entered into by

the Petitioner with the Respondent No.1 on her own accord and the

Petitioner cannot contend that she has suffered loss due to the

agreement and / or claim exemption from making the statutory

deposit for entertaining the appeal preferred against the order of the

DRT. We are also of the view that the letter dated 31st October 2015

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relied upon by the Petitioner and the NOC dated 11th March 2016

only goes to show that the Petitioner has entered into the purchase

agreement with Respondent No.2 on her own accord. It is subject to

the terms and conditions imposed by Respondent No.1 and from

which it can be deduced that amounts are due from the Petitioner

against the shop. We are of the view that the mandatory provision i.e.

Section 18 of the SARFAESI Act would in any event apply to the

Petitioner.

8. Considering the above we are of the view that, there is no

merit in the Petition and that the Petition seeking quashing and setting

aside of the impugned order dated 28th June 2017 is accordingly

dismissed.

9. There shall be no order as to costs.

           (RIYAZ I. CHAGLA J.)                                        ( B.R. GAVAI J.)