Delhi High Court - OrdersM/S Kumar Bakers And Anr vs Hero Fincorp Ltd on 9 December, 2021Author:Prateek JalanBench:Prateek Jalan$~44 (2021 Cause List)\n                    *     IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n                    +           W.P.(C) 14022/2021\n\n                                M/S KUMAR BAKERS AND ANR                 ..... Petitioners\n                                             Through: Mr. Amit Nahata, Mr. Ashok\n                                                      Kumar, Advocates (9212545664).\n\n                                                           versus\n\n                                HERO FINCORP LTD                                  ..... Respondent\n                                             Through:           Mr. Aditya Prasad (9582091630)\n                                                                and    Mr.     Sriram       Kamal\n                                                                (9958162976), Advocates for\n                                                                Respondent.\n\n                    CORAM:\n                    HON'BLE MR. JUSTICE PRATEEK JALAN\n\n                                             ORDER%                        09.12.2021\n\n                                The proceedings in the matter have been conducted through hybrid\n                    mode [physical and virtual hearing].CM APPL. 44230/2021(for exemption)\n                                Exemption allowed, subject to all just exceptions.\n                                The application stands disposed of.W.P.(C) 14022/20211.          Issue notice. Mr. Aditya Prasad, learned counsel, accepts notice on\n                    behalf of the respondent.2.          By way of the present petition, the petitioners seek restoration of\n                    possession of their properties [shop no. 9 and shop no. 10, LSC, BlockSignature Not VerifiedDigitally Signed By:SHITUNAGPALSigning Date:09.12.202122:13:21              W.P.(C)   14022/2021                                                Page 1 of 6B4, Paschim Vihar, New Delhi-110063] ["the properties"], possession of\n                    which have been taken by the respondent through a Receiver appointed\n                    underSection 14of the Securitisation and Reconstruction of Financial\n                    Assets and Enforcement of Security Interest Act, 2002 ["SARFAESI\n                    Act"] by the Chief Metropolitan Magistrate.3.          The petitioners had earlier approached this Court by way of\n                    W.P.(C) 11679/2021 in respect of the proceedings taken by the\n                    respondent under theSARFAESI Act. The writ petition was entertained\n                    in view of the fact that the Debts Recovery Tribunals ["DRT"] in Delhi\n                    are non-functional and the petitioners were, therefore, unable to avail of\n                    their statutory remedy despite the fact that they had filed proceedings\n                    underSection 17of the SARFAESI Act before DRT-I, Delhi (SA No.\n                    271/2021). By an order dated 11.10.2021, the Court issued notice to the\n                    respondent, and also deferred the proceedings for possession of the\n                    properties subject to deposit of a sum of ₹ 45 lakhs by the petitioners. The\n                    said sum has been deposited.4.          The writ petition was disposed of by an order dated 28.10.2021\n                    granting liberty to the petitioners to approach the Debts Recovery\n                    Appellate Tribunal ["DRAT"], Delhi for transfer of the pending\n                    securitisation application to a functional DRT in exercise of the powers\n                    conferred bySection 17(7)of the SARFAESI Act read with Section\n                    17A(2) of the Recovery of Debts and Bankruptcy Act, 1993 ["RDB\n                    Act"]. Having regard to the submissions made by the learned counsel for\n                    the parties, the protection granted to the petitioners from dispossession\n                    was extended until 30.11.2021 subject to deposit of a further sum of\n                    ₹ 15 lakhs by 15.11.2021.Signature Not VerifiedDigitally Signed By:SHITUNAGPALSigning Date:09.12.202122:13:21              W.P.(C)   14022/2021                                             Page 2 of 65.          Mr. Amit Nahata, learned counsel for the petitioners, states that the\n                    petitioners neither approached the DRAT for transfer of the proceedings,\n                    nor were they able to deposit sum of ₹ 15 lakhs by 15.11.2021. In these\n                    circumstances, the possession of the properties have been taken by the\n                    Receiver on 30.11.2021.6.          The petitioners now seek restoration of possession of the properties\n                    as they claim to have arranged the sum of ₹ 15 lakhs, as directed by the\n                    order of this Court dated 28.10.2021. Mr. Nahata also submits that the\n                    properties are shops in which various perishable and edible items have\n                    been stored which would be destroyed if the petitioners are not permitted\n                    to take possession of the shops.7.          In view of the fact that the DRTs and the Debts Recovery\n                    Appellate Tribunal ["DRAT"] in Delhi are presently without Presiding\n                    Officers, this Court has had occasion to consider similar petitions and has\n                    taken the view that it is preferable to enable the parties to approach the\n                    statutory tribunal rather to entertain writ petitions on merits. I am of the\n                    view that this is consistent with the settled jurisprudence of the Supreme\n                    Court relating to maintainability of writ petitions against measures under\n                    theSARFAESI Actincluding inter alia in the judgment of the Supreme\n                    Court inUnited Bank of India vs. Satyawati Tandon and Others(2010) 8\n                    SCC 110 and Authorized Officer, State Bank of Travancore and Another\n                    vs. Mathew K.C.(2018) 3 SCC 85 [paragraphs 5, 9 to 15], and the recent\n                    judgment inC. Bright vs. District Collector and Others(2021) 2 SCC\n                    392 [paragraph 22]. With this objective, in appropriate cases, this Court\n                    has also transferred proceedings pending before the DRTs in Delhi to a\n                    functional DRT within the jurisdiction of the DRAT, Delhi on grounds ofSignature Not VerifiedDigitally Signed By:SHITUNAGPALSigning Date:09.12.202122:13:21              W.P.(C)   14022/2021                                                  Page 3 of 6urgency, invoking the provisions ofSection 17(7)of the SARFAESI Act\n                    and 17A(2) of the RDB Act.8.          I am of the view that the transfer of proceedings in the present case\n                    also to a functional DRT would be consistent with this approach of the\n                    Supreme Court, rather than entertaining the proceedings underArticle\n                    226of the Constitution.9.          In view of the above, the writ petition is disposed of with the\n                    following directions: -a. The petitioners are at liberty to file an interlocutory application in\n                                their SA No. 271/2021 pending before DRT-I, Delhi, for the relief\n                                sought in the petition.b. The Securitisation Application filed by the petitioner before the\n                                DRT-I, Delhi, being SA No. 271/2021, and pending applications\n                                therein, are transferred from DRT-I, Delhi to DRT, Jaipur.\n                         c. The Registrar, DRT-I, Delhi, is directed to transmit the records of\n                                the said Securitisation Application. and pending Interlocutory\n                                Applications to DRT, Jaipur digitally.d. Learned counsel for the petitioner is also directed to coordinate\n                                with the Registrar DRT, Jaipur, to transmit the digital records of\n                                the aforesaid case to DRT, Jaipur, if so permitted.\n                         e. The         proceedings       be   listed   before   DRT,   Jaipur      for\n                                directions/hearing on 15.12.2021 at 2:00 PM. DRT, Jaipur will\n                                permit the parties to appear online [by video-conferencing], if they\n                                so request.f. DRT, Jaipur is directed to hear the petitioner's case at least on the\n                                question of interim relief, and pass appropriate orders, asSignature Not VerifiedDigitally Signed By:SHITUNAGPALSigning Date:09.12.202122:13:21              W.P.(C)   14022/2021                                                   Page 4 of 6expeditiously as possible.10.         As far as the perishable goods lying in the properties are\n                    concerned, Mr. Prasad, states that the respondent will permit the\n                    petitioners to remove the goods lying therein. He further agrees that the\n                    properties may be de-sealed for the aforesaid purpose. Mr. Prasad\n                    requests that this process may take place in the presence of Ms. Rosy\n                    Sharma, Advocate, who was the Court Receiver and took possession of\n                    the properties and also prepared the inventory of the goods lying therein.\n                    Ms. Rosy Sharma, Advocate (Enrolment No- D-1716/C-2004, Chamber\n                    No 851, Lawyer's Block, Saket District Courts, New Delhi, Mobile No\n                    9971208186) is appointed as the Receiver, who will de-seal the properties\n                    and permit the petitioners to remove the goods lying therein, and reseal\n                    the properties thereafter. Ms. Sharma is requested to conduct these\n                    proceedings as expeditiously as possible, having regard to the nature of\n                    goods, and preferably either on 10.12.2021 and 11.12.2021. It is made\n                    clear that the premises will be de-sealed only to permit the petitioners to\n                    remove the goods in question, and the petitioners undertake to vacate the\n                    premises immediately after this task is completed. The Receiver is also at\n                    liberty to seek police assistance if this undertaking is breached in any\n                    manner. After the Receiver reseals the premises, the possession will be\n                    handed over back to the Authorised Officer of the respondent. The\n                    remuneration of the Receiver is fixed at Rs 30,000/-, to be paid by the\n                    respondent.11.         This order will not come in the way of the respondent considering\n                    any proposal of the petitioner for settlement of their dispute.12.         It is made clear that this Court has not entered into the merits of theSignature Not VerifiedDigitally Signed By:SHITUNAGPALSigning Date:09.12.202122:13:21              W.P.(C)   14022/2021                                                    Page 5 of 6petitioners' case, which will be adjudicated by the DRT in accordance\n                    with law.13.         The writ petition is disposed of with these directions.PRATEEK JALAN, J\n                    DECEMBER 9, 2021\n                    'Bp'Signature Not VerifiedDigitally Signed By:SHITUNAGPALSigning Date:09.12.202122:13:21              W.P.(C)   14022/2021                                                Page 6 of 6