POOJA GUPTA & ORS. vs INDIAN BANK & ANR.
$~S-12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8773/2024 & CM APPL.35719/2024
POOJA GUPTA & ORS. ….. Petitioners Through: Mr.Akshay Goel, Advocate.
versus
INDIAN BANK & ANR. ….. Respondents Through: Ms.Seema Gupta, Advocate (through VC) for R-1.
% Date of Decision: 01st July, 2024
CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, ACJ : (ORAL)
1.
Present petition has been filed seeking issuance of directions to set aside the recovery proceedings initiated by Respondent No.1-Bank against the Petitioners vide O.A. No. 751/2023 pending before the DRT, New Delhi for an outstanding amount of Rs.80,99,129.12/-.
2.
Learned counsel for the Petitioners states that around 2013, a real estate project by the name of Victory Ace was launched by Respondent No.2 builder whereby Petitioner No. 1 along with her deceased husband Late Mr. Kapish Gupta approached Respondent No.2 and booked a flat bearing Unit No. D2-302 situated on the 3rd Floor of Tower D2 in the said project. He states that an Allotment Agreement dated 3rd July, 2017 was executed between the parties.
3.
He states that the Petitioner No.1 along with her deceased husband approached Respondent No.1-Bank on 9th August, 2017 to avail a loan. He states that on 17th August, 2017, the Petitioner No.1 and her deceased husband submitted a loan application for an amount of Rs.75 lakhs which was sanctioned by the Respondent No.1-Bank on 30th August, 2017.
4.
He further states that on 7th September, 2017, a tripartite agreement was executed amongst the Petitioner No.1, Late Mr. Kapish Gupta, Respondent No. 2 and the Respondent No.1-Bank. He states that in pursuance to the allotment letter dated 3rd July, 2017, the Respondent No. 2 was obliged to hand over possession of the constructed unit by or before thirty months from the date of the Agreement. Further, even as per the aforesaid tripartite agreement, it was represented by the Respondent No. 2 that the construction shall be completed by March, 2018. However, to the dismay of the Petitioners, the Respondent No.2 severely defaulted on the promise of possession of the unit to the Petitioners.
5.
He states that apart from the loan amount disbursed by the Respondent No.1-Bank, the Petitioners had also deposited an amount of Rs.10 lakhs additionally against the Unit on 28th June, 2017. He further states that the deceased husband was diagnosed with chronic liver disease in 2017.
6.
He states that at the time the flat booked by the Petitioner No. 1s deceased husband was supposed to have been handed over, the same was far from completion. He further states that due to the illness of the husband of the Petitioner No.1, the Petitioner No. 1 along with her deceased husband approached the Respondent No.1-Bank on 27th May, 2021 for seeking exemption from repaying the loan. He states that the husband of the
Petitioner No.1 passed away on 17th August, 2022.
7.
He states that from a bare perusal of the terms of the tripartite agreement, the Respondent No.1-Bank has adequately protected itself against any default from the borrowers by imposing a liability on the rights and interests of the Petitioners against the Respondent No.2.
8.
He states that the Petitioner No. 1 received a summons issued by DRT, New Delhi on 17th April, 2024 and only at this point of time did they come to know of the filing of the O.A. 751 of 2023 by the Respondent No.1Bank against the Petitioners. He states that the same came as a shock to the Petitioners since, at the outset, the Respondent no. 1 Bank is well aware of the CIRP proceedings going on against the Respondent No. 2 and in fact, has admittedly filed a claim with the Resolution Professional.
9.
Learned counsel for the Respondent No.1-Bank, who appears on advance notice, states that the Resolution Professional has dismissed the Respondent No.1-Bankss claim on the ground that it was barred by limitation. She further states that the Petitioner has taken time before the DRT to file its written statement/objections. She submits that as the Petitioner has an alternative effective remedy before the DRT, the present writ petition should not be entertained. She lastly states that the present writ petition involves disputed questions of fact.
10.
The Supreme Court in PHR Invent Educational Society Vs. UCO Bank and Ors., 2024 SCC OnLine SC 528 has recently reiterated that the High Courts should not entertain petitions arising out of DRT Act and SARFAESI Act as effective alternative remedies are available under the said Acts. The relevant portion of the said judgment is reproduced hereinbelow:
33. While dismissing the writ petition, we will have to remind the High Courts of the following words of this Court in the case of Satyawati Tondon (supra) since we have come across various matters wherein the High Courts have been entertaining petitions arising out of the DRT Act and the SARFAESI Act in spite of availability of an effective alternative remedy:
55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.
34. In the result, we pass the following order:
(i)
The appeal is allowed;
(ii)
The impugned order dated 4th February 2022 passed by the High Court in Writ Petition No. 5275 of 2021 is quashed and set aside; and
(iii) Writ Petition No. 5275 of 2021 is dismissed with costs quantified at Rs. 1,00,000/-imposed upon the Borrower.
11. In view of the aforesaid, the present writ petition along with
application is dismissed with liberty to the Petitioners to agitate all
contentions and submissions before the DRT in accordance with law. The
rights and contentions of all the parties are left open.
ACTING CHIEF JUSTICE
TUSHAR RAO GEDELA, J JULY 1, 2024
TS