Pradeep Agarwal vs State Bank Of India And Ors
2016 Latest Caselaw 6143 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of decision: September 20, 2016
+       W.P.(C) 6977/2016, CM No.28651/2016

        PRADEEP AGARWAL
                                                        ..... Petitioner
                                 Through:   Mr.Pallav Saxena with Ms.Bindu
                                            Das, Advs.

                        versus

        STATE BANK OF INDIA AND ORS                     ..... Respondents

                                 Through:   Mr. Vipul Jai & Mr. Vipin Jai,
                                            Advs. for R-1 to 6
                                            Mr. Samarendra Kumar, Adv. for
                                            R-3

CORAM:-
HON'BLE MS JUSTICE INDIRA BANERJEE
HON'BLE MR JUSTICE V. KAMESWAR RAO

                                    JUDGMENT

V. KAMESWAR RAO, J. (ORAL)

1. The challenge in this writ petition is to the orders dated October 19,

2015 and June 2, 2016, whereby an application filed by the petitioner

herein seeking amendment of the Securitization Application (for short

'SA') and the application seeking review were dismissed.

2. The facts as noted from the writ petition are, demand notices under

Section 13(2) of the SARFAESI Act, 2002 were issued by respondents

1,3 and 5 against the petitioner and his property X-19, Hauz Khas

Enclave, New Delhi-110016 on December 11, 2013, May 7, 2014 and

June 12, 2014. The respondents 1 to 6 took possession of the said

property, which according to the petitioner, was notional and symbolic.

On October 7, 2014 petitioner instituted SA No. 151/2014 before the

DRT-I, Delhi. Respondents 1 and 2 herein filed written statement along

with loan and security documents. On February 27, 2015 petitioner

preferred IA 184/2015 seeking amendment of SA No.151/2014. The said

application was dismissed vide order dated October 19, 2015. Thereafter,

on November 26, 2015, the petitioner filed IA 1222/2015 seeking review

of order dated October 19, 2015, which was also dismissed on June 2,

2016.

3. Mr. Pallav Saxena learned counsel appearing for the petitioner

would draw our attention to page 187 of the paper book, which is part of

the application filed by the petitioner seeking amendment of the

Securitization Application No. 151/2014 to contend that the amendment

was necessitated because the petitioner for the first time perused the

documents i.e. Guarantee Deed dated February 24, 2009, Letter of

Renewal dated October 17, 2011, Supplemental Deed of Guarantee dated

October 24, 2011 and Guarantee dated April 19, 2013 filed by the

respondent No.2. According to him, the petitioner has come to know

about the documents, which have been forged and manufactured against

him as also the fact that the respondents 2, 4 and 6 sanctioned credit

facilities amounting to `132 Crores without the consent and knowledge of

the petitioner. According to him, the petitioner intended to add three

paragraphs under the facts to be numbered as 5.112A, 5.112B and 5.112C

with three grounds to be numbered as XLIX, L, LI. He would state, these

amendments were relevant because the petitioner's case was that the

documents, on which the respondent No.2 intended to rely upon, were

forged and manufactured and such a plea need to be taken by giving

relevant facts, in view of the provisions of Order 6 Rule 4 of the Code of

Civil Procedure. He states, that the conclusion of the DRT on this

application is contradictory, inasmuch as, on one hand the DRT has stated

that the said facts, which sought to be incorporated by way of

amendment, were existed at the time of initial filing of the SA, cannot be

allowed by way of amendment but on the other hand, has stated that such

a plea of fraud and fabrication of documents had already been taken by

the petitioner in the present SA. Even otherwise, he states, that the

petitioner shall, in his replication, take the plea that the documents are

forged and manufactured but the said plea should not be rejected only on

the ground that the same were not averred in the petition.

4. We note that Mr. Vipul Jai, Advocate appearing for respondents 1

to 6 (except respondent No.3) and Mr. Samarendra Kumar, Advocate

appearing for R-3 (respondents 7 to 11 being proforma party) take a plea

of maintainability of the petition on the ground that the remedy against

the impugned orders would be before the Debt Recovery Appellate

Tribunal. They also state that the present application is totally

misconceived, inasmuch as the conclusion of the Tribunal that the

petitioner had taken the plea of fraud and fabrication in the petition itself,

and that would suffice the requirement of pleadings in that regard. He

would state, in view of this plea, the amendment application was not

required to be filed by the petitioner. This is only an attempt to delay the

proceedings.

5. Having heard the learned counsel for the parties, without going into

the aspect that the petitioner had an alternative remedy before the Debt

Recovery Appellate Tribunal, noting the submissions made by the learned

counsel for the respondents 1 to 6 that the plea, having been taken by the

petitioner in the Securitization Application, the petitioner would be within

his right to clarify/take a stand that on perusal of the documents as

referred to above, which according to him are forged and manufactured in

his replication and the stand of the petitioner shall be considered by the

Tribunal on merit, as we note, that, the Tribunal also held in its order

dated October 19, 2015, that the plea of fraud and fabrication has been

taken by the petitioner in SA. The writ petition is disposed of on the

aforesaid terms. There shall be no order as to costs.

CM No.28651/2016

Dismissed as infructuous.

V. KAMESWAR RAO, J

INDIRA BANERJEE, J

SEPTEMBER 20, 2016/ak