SANTOSH KUMAR Vs. PIRAMAL CAPITAL AND HOUSING

JUDGEMENT

(1.) The petitioner has filed the present petition for quashing the order dtd. 25/4/2024 passed by learned Additional Chief Judicial Magistrate (ACJM), Court No.2, Shimla, H.P., vide which the application filed by the respondent under Sec. 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) was allowed.

(2.) It has been asserted that the respondent/creditor filed an application seeking a direction to SHO to help the authorized officer to take possession of the secured asset. It was asserted that petitioners No.1 and 2 availed housing loan/non-housing loan credit facility of ?20,95,001/- against the security of the premises with an undertaking to repay the same as per the terms of the loan agreement. Petitioners created an equitable mortgage by deposit of the original title deed. The amount was declared a Non- Performing Asset (NPA) on 11/3/2021. The borrowers were liable to pay ?20,75,486/- to the respondent. The respondent issued a demand notice on 17/5/2021 under Sec. 13 (3-A) of the SARFAESI Act and asked the petitioners to clear the dues within 60 days. The petitioners failed to clear the dues within 60 days or to file any objection. The respondent wanted to take possession of the secured asset; hence, the application was filed to seek assistance from the Court. The Court allowed the application and issued a warrant of possession to the Collector for delivery of the possession. The order is bad. The order was passed in violation of the principles of natural justice as no notice was served upon the petitioners nor any opportunity of being heard was provided to them before passing the order. The petitioners were ready and willing to pay the entire amount if some time was granted to them. The petitioners were regularly paying the monthly instalment of ?19,728/-, however, the instalments were enhanced to ?22,737/-. Petitioners have paid almost half of the loan amount. The petitioners suffered huge losses due to Covid-19. Thereafter, no person approached the petitioners regarding the outstanding amount. The amount claimed by the respondent is quite high. Hence, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

(3.) The Court passed an order on 27/5/2024 that the petitioner had furnished an undertaking to remit the amount of ?23,52,117/- on or before 26/6/2024; hence further action in the matter be deferred.