Delhi High Court
Sandhya Agarwal And Anr vs Jammu & Kashmir Bank And Ors. on 30 August, 2017
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7084/2017 & C.M. Nos. 31459-60/2017
SANDHYA AGARWAL AND ANR ..... Petitioners
Through: Mr. Neeraj K. Kaul, Senior Advocate
with Mr. Aman Vachher and Mr. Ashutosh Dubey
and Mr. Raghav, Advocates.
versus
JAMMU & KASHMIR BANK AND ORS. ..... Respondents
Through: Mr. Rahul Narayanan, Advocate for
R-1/Bank.
Mr. Shashank Aggarwal, Advocate for R-2 & 3.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 30.08.2017
1. The petitioners are aggrieved by the order dated 04.8.2017 passed by
the learned DRAT in an appeal preferred by the respondent No.1/Bank
against the order dated 25.7.2017, passed by the learned DRT-I, restraining
the Bank from taking over physical possession of their residential premises,
on their depositing a sum of Rs.50 lakhs along with a cheque for a sum of
Rs.1.50 crores, on or before 28.7.2017.
2. It is an undisputed position that the petitioners are in default of the
order dated 25.7.2017 passed by the DRT, having paid only a sum of Rs.50
lakhs to the respondent No.1/Bank and having failed to pay a sum of Rs.1.50
crores, on or before the date fixed, i.e., 28.7.2017. Under the impugned
order passed by the DRAT, notice was issued to the respondents, returnable
on 17.8.2017 and simultaneously, operation of the order passed by the
learned DRT-I, was stayed.
3. Mr. Kaul, learned Senior Advocate appearing for the petitioners states
that contrary to the view expressed in the impugned order, the petitioners
are not under any legal obligation to assail an order passed by the learned
CMM under Section 14 of the SARFAESI Act, 2002, only by filing a
petition under Article 226 of the Constitution of India for the reason that the
amendments incorporated in Section 14(3) of the said Act, entitle them to
approach the DRT under Section 17 of the Act, for appropriate relief against
any such order passed by the learned CMM, appointing a Receiver to take
over the possession of their residential premises, mortgaged with the
respondent No.1 /Bank and proceed to auction the same.
4. Learned counsel for the respondent No.1/Bank opposes the present
petition and states that not too long ago, the petitioners had filed a writ
petition in this Court, registered as WP(C) No. 7904/2015, challenging inter
alia a similar order passed by the learned CMM, appointing a Receiver to
take possession of the very same residential premises. Notice was issued in
the said petition on 19.8.2015 and operation of the order dated 7.7.2015
passed by the learned C.M.M., was stayed. The said petition was finally
disposed of on 28.8.2017, as counsel for the petitioners therein had stated
that the respondent No.1/Bank had sanctioned a One Time Settlement (in
short 'OTS') proposal made to it. The petitioners had undertaken to abide by
the terms and conditions of the said OTS. Under the OTS, the petitioners
had agreed to pay a sum of Rs. 38 crores to the respondent No.1/Bank in
instalments and had agreed that the entire amount would be paid by
31.12.2017. It is submitted that as on 31.8.2017, the petitioners ought to
have deposited a sum of Rs.10 crores with the respondent No.1/Bank, but till
date, they have only paid a sum of Rs.2 crore (approx.).
5. We have enquired from learned counsel for the petitioners as to
whether they are willing to make good their default in respect of the OTS by
paying the outstanding instalments to the respondent No.1/Bank, for us to
consider granting them any interim relief.
6. Mr. Kaul, Senior Advocate states on instructions that the petitioners
are not in a financial position to make the payment. He states that in view of
the fact that respondent No.1/Bank is proposing to take over the physical
possession of the residential premises on 09.9.2017, instead of pressing the
present petition, the petitioners propose to approach the DRAT by filing an
application for seeking advancement of the date fixed before it on
14.9.2017.
7. If the petitioners file the said application within two days, the learned
DRAT is requested to consider the same and pass appropriate orders
thereon, in accordance with law. Counsel for the respondent No.1/Bank shall
be furnished an advance copy of the application so that the Bank is duly
represented before the DRAT.
8. The petition is disposed of as not pressed, along with the pending
applications.
9. The next date fixed in this petition stands cancelled.
HIMA KOHLI, J
DEEPA SHARMA, J
AUGUST 30, 2017/ap
