Delhi High Court
Rajesh Manchanda And Anr vs Canara Bank And Anr on 14 July, 2017
$~8.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5876/2017 and CM APPL. 24508-24511/2017
RAJESH MANCHANDA AND ANR ..... Petitioners
Through: Mr. Sanjay Goswami, Advocate with
Mr. K. Bhimraj Achary, Mr. Anoop Prakash
Awasthi, Advocates and petitioners in person.
versus
CANARA BANK AND ANR ..... Respondents
Through: Mr. Vijay Kumar, Advocate for R-1.
Mr. Sanjeev Bhandari, Advocate for R-2 and R-3.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 14.07.2017
1. The petitioners are aggrieved by the order dated 11.07.2017 passed by
the learned DRAT in an appeal filed by them against an order dated
29.06.2017 passed by the DRT-III, Delhi in S.A. No.78/2013. By the
impugned order, the learned DRAT has called upon the petitioners to
deposit 50% of the debt claimed by the respondent No.1/Bank in its notice
dated 22.12.2011 issued under Section 13(2) of the SARFAESI Act and has
observed that only thereafter, shall their prayer for protection of the
mortgaged assets be examined.
2. Mr. Goswami, learned counsel for the petitioners argues that the
demand notice dated 22.12.2011 issued by the respondent No.1/Bank under
Section 13(2) of the SARFAESI Act had stated inter alia that as on the date
of issuance of the said notice, a sum of Rs.5,24,06,505.39 paise together
with interest @ 17% including 2% penal interest is payable and therefore,
the said figure has to be accepted as the final figure and keeping in mind the
fact that after issuance of the captioned demand notice, the petitioners and
the other guarantors including the respondent No.2/company have
jointly/severally paid a sum of Rs.3,03,85,385/-, as confirmed by the
respondent No.1/Bank in the statement of account pertaining to the
respondent No.2/company (Annexure P-3 colly.), which is far in excess of
50% of the debt specified in the demand notice, the learned DRAT ought not
to have directed the petitioners to deposit any further amount.
3. Mr. Vijay Kumar, learned counsel for the respondent No.1/Bank, who
appears on service of advance copy, disputes the submission made by the
other side and clarifies that the demand notice itself refers to interest payable
on the principal amount of Rs.5,24,06,505.39 paise and by now, the said
interest factor if added to the principal amount would have mounted to
Rs.5,20,00,000/- (approx.), after giving the adjustment of the
Rs.3,03,85,385/-, received by the Bank after 22.12.2011. He clarifies that
the petitioner No.1, 3, 4 and 5 are brothers and all of them were Directors of
the respondent No.2/company that was extended a loan and they had also
stood as guarantors in respect of the said loan in their personal capacity.
Therefore, the Bank is well entitled to make recoveries from all the parties
in accordance with law for non-payment of the loan amount extended to the
respondent No.2/company whose account has since been declared as NPA
and steps initiated to attach its secured assets and those of the guarantors.
It is in this background that the respondent No.1/Bank has decided to take
over the possession of the residential premises of the petitioners that was
offered as a secured asset before auctioning the same.
4. Mr. Goswami, learned counsel for the petitioners responds by stating
that the respondent No.1/Bank has not taken any steps to realise monies by
disposing of the hypothecated goods of the respondent No.2/company,
which in the year 2014, were worth Rs.5 crores. The said submission is
however refuted by learned counsel for the respondent No.1/Bank, who
states that there is a serious dispute raised by the respondent No.3,
Managing Director of the respondent No.2/company with regard to the
ownership of the said goods and they were not found lying at the premises
of the company and have been relocated to a premises owned by the
respondent No.7, who happens to be the wife of the respondent No.3. Till
the said issue is resolved, the respondent No.1/Bank is not in a position to
take any steps to dispose of the said goods. He states that the respondents
No.1, 3, 4 and 5 (brothers) are at loggerheads and repeated requests by the
Bank to them to approach it jointly and amicably resolve the dispute has not
elicited any positive response due to which the respondent No. 1/Bank has
had to take coercive steps.
5. Having heard the counsels for the parties, we are not inclined to
entertain the present petition as we do not see any infirmity in the impugned
order directing deposit of 50% of the debt amount. Even after adjustment of
the amounts received by the respondent No.1/Bank subsequent to issuance
of the demand notice, the outstanding amount is far in excess of 50%.
6. Accordingly, the present petition is dismissed as devoid of merits
alongwith the pending applications.
7. At this stage, counsel for the petitioners states that the petitioners
along with their children are residing in the immovable property offered as a
secured asset and though they were granted 15 days time to vacate the same,
they have not been able to find a suitable alternate accommodation. He
states on instructions that both the petitioners shall file their separate
affidavits undertaking inter alia to vacate the subject premises alongwith
their family members on or before 7.8.2017.
8. In the interest of justice, the petitioners are granted time upto
07.08.2017 to hand over vacant physical possession of the subject premises
to the authorised officer(s) the respondent No.1/Bank. While filing the said
affidavits, the petitioners shall undertake inter alia that they shall not induct
anyone or create any third party interest therein and no one except for them
and their two children shall occupy the same. The said undertaking shall be
filed by tomorrow with copies furnished to the counsel for the respondent
No.1/Bank. If the affidavits are not filed by the petitioners by tomorrow,
then this order shall stand automatically vacated. It is also made clear that
that no further request for extension of time to vacate the subject premises
shall be entertained.
9. The respondent No.1/Bank is directed not to take any coercive steps
against the petitioners in respect of the subject premises till 07.08.2017.
DASTI to the counsels for the petitioners and the respondent
No.1/Bank.
HIMA KOHLI, J
DEEPA SHARMA, J
JULY 14, 2017
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