Saxena Law Chamber (1)

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• SA No. 472/2022
• DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING
  OFFICER SH. VIVEK SAXENA
• SA No.- 472/2022
• Dheeraj Kanwar W/O Dr. Balwant Singh Chirana Aged
  About 52 Years, Resident Of Vidya Bharti Public
  School, Civil Lines, Sikar, Rajasthan, Sikar,
  Rajasthan.
• M/S Vidya Bharti Sansthan Having Office At Vidya
  Bharti Public School, Civil Lines, Sikar,
  Rajasthan, Sikar, Rajasthan, Sikar, Rajasthan
  Through Its Authorized Signatory Dheeraj Kanwar
  W/O Dr. Balwant Singh Chirana Aged About 52
  Years, Resident Of Vidya Bharti Public School,
  Civil Lines, Rajasthan. Sikar, Rajasthan, Sikar,
• ...Applicants
• Versus
• Religare Finvest Limited, Having Its Office At
  Religare Finvest Limited, 2nd Floor, Rajlok
  Building, 24, Nehru Palace, New
  Delhi-110019.And Having Branch Office At K- 14,
  7th Floor, International Business Center, Ashok
  Marg, C Scheme,, Jaipur, Rajasthan 302001
  Through Its Authorised Officer.
• Respondent FI
• Present
• Sh. Abhishek Saxena/Akarsh Mathur, Ld. Counsel
  for the Applicant Sh. Ritesh Dhingra,
  Ld. Counsel for the Respondent Bank/FI
• (Final Order) (08.11.2023)

• This SA was filed on 01.08.2022 and vide order
  dated
• 05.08.2022 and order of status quo was granted by
  this Tribunal.
• As the demand notice was issued on 23.08.2018,
  order under Section 14 was issued on 28.12.2022,

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• possession notice was issued on 15.10.2018, but
  final intimation notice for taking possession of
  the subject mortgaged property was issued by
  the respondent bank on 22.08.2019 and so
  Respondent FI itself delayed the proceedings of
  taking physical possession.
• As the order dated 05.08.2022, through which an
  order of status quo was passed and it
  remained unchallenged, so it has now attained
  finality and still is in existence.
• Reply to SA was filed on 16.11.2022.
• In the present matter an order of Honble High
  Court was passed in S.B. Writ Petition No.
  9853/2021 on 10.11.2021, through operation of
  order dated 28.12.2018 passed by District
  Magistrate, Sikar and possession notice dated
  22.08.2019 were stayed and finally through
  order dated 28.07.2022, the said order was
  vacated, writ petition was dismissed on
  account of availability of alternate remedy.
• The order of Honble High Court is reproduced
  here as under-
• 28/07/2022
• Learned counsel for the petitioners pleads no
  instruction.
• The matter has come up on an application
  No.1/2022 filed by the respondents No.2 3 for
  vacation of ex parte interim order dated
  10.11.2021.
• Learned counsel for the respondents/applicants
  submits that
• the writ petition itself is not maintainable
  inasmuch as against the notice dated 22.08.2019
  issued under the provisions of Securitization
  and Reconstruction of Financial Assets and
  Enforcement of Security Interest Act, 2002
  (for brevity, "SARFAESI Act") for taking
  possession of the secured asset(s),

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• the petitioners have an efficacious and
  alternative remedy under Section 17 of the
  SARFAEST Act. He, therefore, prays that the order
  dated 10.11.2021 be vacated and the writ petition
  be dismissed for availability of alternative
  remedy.
• Heard. Considered.
• Indisputably, the petitioners have statutory
  remedy under the provisions of the SARFAESI Act
  against the action taken by the
• respondents under the SARFAESI Act, 2002
  therefore, the writ petition is dismissed on this
  count.
• The pending application No. 1/2022 stands
  disposed of accordingly.
• As per facts of the case, availing credit
  facility and default is admitted.
• Ld. Counsel for the applicant challenged the
  Demand
• Notice at Annexure A/3 on the ground that
  the demand is illegal because Respondent FI
  has included interest on termination for an
  amount of Rs. 7,80,422/- because this was not a
  matter where the SA applicant being a borrower
  have approached to Respondent FI to close the
  loan account.
• If Respondent FI wants to close the account
  by way of demand of entire outstanding amount
  they are not entitled for interest on
  termination and based on these grounds, Ld.
  Counsel for the applicant argued that the
  demand so raised in the Demand Notice at
  Annexure A/3 is illegal.
• Annexure A/4 is the possession notice dated
  15.10.2018 and Ld. Counsel for the
  applicant referred Annexure A/6 IInd Possession
  Notice dated 22.08.2019 and argued that this
  second possession notice was issued without
  withdrawal of earlier possession notice and
  therefore the actions

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4 conducted by Respondent FI by issuing
second possession notice is also required to be
quashed and set aside. 11. Ld. Counsel for the
applicant also submitted that the payment was
regularly being paid and therefore there was
no cause of action on the basis of which account
can be declared as NOA in ground C to the SA,
they took specific objection.
12.
For ready reference ground C is reproduced

• here as under-
• Because, it is utterly shocking to note that the
  bank with the ulterior motives have falsely
  marked the loan account as NPA on 30.06.2018 and
  issued notice dated 23.07.2018 which could not
  have been issued as the applicant was regularly
  paying the loan installment to the Defendant FI.
  Thus, declaring the account NPA is grossly
  illegal and in that light the Section 13(2)
  notice deserves to be quashed and set aside.
• Based on these grounds, Ld. Counsel for the
• applicant submitted that all the actions
  initiated by Respondent FI are required to be
  quashed and set aside.
• Ld. Counsel for the Respondent FI while filing
  reply to this SA and while arguing strongly
  objected mainly on the ground that SA applicant
  have already given undertaking before the Honble
  High Court at Delhi before Honble High Court at
  Delhi in W.P. (C) 11029/2019 in order dated
  16.10.2019, the petitioners were granted time to
  deposit the amount, to file an undertaking in the
  form of an affidavit indicating therein that it
  shall abide by the terms of the settlement stated
  out here in above.

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• Ld. Counsel for the Respondent FI submitted that
  the SA applicant failed to comply with the order
  dated 16.10.2019 passed by Honble High Court at
  Delhi. He further submitted that there was
  nothing wrong in the actions initiated by them
  and as the SA applicant is a defaulter, so
  SA filed by them is required to be quashed
  and set aside.
• Heard arguments and perused the record.
• The important fact is about the order of
  Honble High Court at Delhi dated
  16.10.2019 is required to be considered. It is
  clear that the Writ Petition filed before the
  Honble High Court at Delhi in the year 2019 in
  which the order was passed on 16.10.2019 and
  after that what proceedings took place, the SA
  applicant as well as Respondent FI failed to
  bring on record.
• The order dated 28.07.2022 passed by Honble
  High Court at Jaipur in Civil Writ Petition filed
  by SA applicant was passed in the presence of
  Respondent FI also.
• I am of the view that if the order
  dated 16.10.2019 passed by Honble High Court
  at Delhi was well within the knowledge of
  Respondent FI and then why they have not brought
  said order in the knowledge High Court of
  Rajasthan at Jaipur during the proceedings of
  Civil Writ Petition No. 9853/2021 which was
  disposed of vide order dated 28.07.2022.

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• I am of the considered view that the SA
  applicant may have ill intention and he
  failed to inform about the fact/order dated
  16.10.2019 passed by Honble High Court at Delhi,
  but it is clear that who stopped Respondent FI
  to bring this fact in the knowledge of Honble
  High Court of Rajasthan at Jaipur, where the writ
  petition was finally disposed of on 28.07.202 on
  account of alternate remedy.
• I am of the view that the SA applicant being
  petitioner before the Honble High Court at
  Delhi, if have committed any disobedience of the
  order dated 16.10.2019 they are liable to
  face the consequences of the actions to be
  taken by Honble High Court, but it is also not
  clear that why the Respondent FI failed to inform
  or failed to file any contempt petition before
  the Honble High Court in WP (C) No. 11029/2019.
• With regard to objection to demand notice, it is
  clear that it do have details of outstanding
  amount, but as rightly pointed out, interest of
  termination for an amount of Rs. 7,80,422/-
  cannot be claimed by Respondent FI because the
  Respondent FI can claim outstanding amount
  including principle amount, cheque bouncing
  charges, amount of pending installment
  only.
• Similar is the position with LLP charges which
  has been claimed by the Respondent FI for
  an amount of Rs. 15,92,285/-

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• As detailed statement of account was not filed
  by Respondent FI along with reply to SA, further
  they have simply replied ground C of appeal by
  saying that the content of this Para (C) of the
  ground being false is denied. The subject loan
  account was also classified as NPA as per RBI
  guidelines by the Respondent. It is further
  submitted that the answering respondent had
  already started to proceed in term of the
  provision of SARFAESI Act and issued a demand
  notice in terms of section 13(2) of the SARFAESI
  Act.
• Accordingly, I am of the view that there is no
  reply to the ground which is taken by SA
  applicant, statement of account was not filed by
  Respondent FI, specifying the demand as mentioned
  in the demand notice and from the charges as
  discussed here in above are claimed illegally,
  therefore demand is illegal and mainly on this
  count only demand notice is required to be
  quashed and set aside.
• With regard to objection of second possession
  notice, I am of the view that the Respondent FI
  was not required at all to issue any kind
  of final intimation notice for taking
  possession on 22.08.2019 because they have
  already issued possession notice on 15.08.2019
  and so the final intimation notice was not at
  all the possession notice so this objection taken
  by SA applicant is rejected.

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8 27. Based on these grounds, I am of the view
that as the demand notice is not found as per
law, so the same stands set aside, further
all the actions initiated by the Respondent FI
also stands quashed and set aside.
28.
Respondent FI is at liberty to proceed ahead as
per law afresh.
29.
Accordingly, SA stands disposed of as
infractuous.
30.
Copy of the order be given free to the
concerned parties. 31. File be place before
Registrar for compliance, after compliance file
be consigned to record as per rules. Vivek
Saxena Presiding Officer DRT, Jaipur