NASEEM AHMAD KHAN Vs. ICICI HOME FINANCE

JUDGEMENT

(1.) This petition is filed seeking quashing of order dtd. 20/4/2023 passed by the Debts Recovery Tribunal (For short 'the DRT') rejecting the prayer for stay during pendency of the Securitization Application (for short 'SA'). Further prayer is that the proceedings of taking over of the physical possession of the property mentioned in the petition having been mortgaged with the financial institution to secure the loan be quashed.

(2.) The facts are that the petitioner on 19/3/2022 purchased the property in question from his brother Huma Shameem (hereinafter referred to as 'seller'). The seller had availed the loan facility from India Bull Ltd and had mortgaged the property to secure the loan. The petitioner for purchasing the property in question availed credit facility from Ambit Finvest Private Limited (for short 'respondent No.3'). The proceedings were initiated by respondent No.1 under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act') for recovery of the due amount as the borrower failed to maintain financial discipline and the account was declared Non Performing Asset (for short 'NPA') on 6/6/2021. In continuation of the recovery proceedings, physical possession of the property in question was taken over. The petitioner aggrieved of the proceedings under Sec. 13 of the Act filed Securitization Application (for short 'SA') before the DRT, Jaipur accompanied by an application for stay. The application for stay was rejected on 20/4/2023. Hence, the present petition.

(3.) Learned counsel for the petitioner submits that action of the respondent No.1 is illegal as there was non compliance of Sec. 26(d) of the Act. During the due diligence done by the petitioner and the respondent No.3, no charge was found against the property. Further submission is that the petitioner is a bona-fide purchaser of the property and not being borrower and cannot avail remedy of appeal. It is contended that for filing appeal against the impugned order before the Debts Recovery Appellate Tribunal a pre-deposit of 50% of the amount due is to be made. Reliance is placed upon decision of the Supreme Court in the case of Commissioner of Income Tax and Ors. Vs. Chhabil Dass Agarwal reported in (2014) 1 SCC 603 to contend that the petitioner should not be relegated to the alternative remedy.