W.P.(C)/7507/2017 of RENU SONI Vs STATE BANK OF INDIA & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 7507/2017

Date of Decision: 27.11.2017

RENU SONI

..... Petitioner

Versus

STATE BANK OF INDIA & ORS

..... Respondents

Advocates who appeared in this case:For the Petitioner:Mr.Raghu Tandon, Advocate.

For the Respondents:Mr. S.L. Gupta and Mr. Mithilesh Pal, Advocates for R-1.

CORAM:HON'BLE MR. JUSTICE SIDDHARTH MRIDULHON'BLE MS. JUSTICE DEEPA SHARMA

SIDDHARTH MRIDUL, J.

J U M N T

1.The present petition under Article 226 of the Constitution of Indiaseeks writ or direction in the nature of Certiorari to set aside theimpugned judgment and order dated 29[th]June, 2017, passed by the DebtRecovery Appellate Tribunal in Appeal No. 163 of 2016, titled as “State

Bank of India vs. Mrs. Renu Soni & Ors.”, whilst restoring the order dated12[th]February, 2016, passed by the learned DRT in S.A. No. 41 of 2013,titled as “Renu Soni vs. State Bank of India & Ors.”.

2.The facts as are necessary for the adjudication of the present petition,are briefly adumbrated as follows:-

a. Respondent No. 3/Company, who are the principal borrowersacting through its director, Mr. Rakesh Soni (husband of thepetitioner), availed cash-credit facilities, term loans and car loansfrom the respondent No. 1/Bank.acting through its director, Mr. Rakesh Soni (husband of thepetitioner), availed cash-credit facilities, term loans and car loansfrom the respondent No. 1/Bank.

b. The petitioner stood as guarantor for the loan taken by respondentNo. 3/Company and mortgaged the property bearing no. C-8/8576Vasant Kunj, New Delhi (hereinafter referred as ‘subject property’)for the said purpose; to underwrite the above facilities/ loans.No. 3/Company and mortgaged the property bearing no. C-8/8576Vasant Kunj, New Delhi (hereinafter referred as ‘subject property’)for the said purpose; to underwrite the above facilities/ loans.

c. The account of respondent No. 3/Company has been declared as anon-performing asset on 18[th]June, 2012 and statutory noticeunder Section 13(2) of the Securitizations and Reconstruction ofthe Financial Asset and Enforcement of Security Interest Act, 2002(SARFESAI, 2002) was issued on 21[st]December, 2012 seekingrepayment in the amount of Rs. 23,31,10,298.85/-(Rs. TwentyThree Crores Thirty One Lakhs Ten Thousand Two HundredNinety Eight rupees and Eighty Five Paise only).non-performing asset on 18[th]June, 2012 and statutory noticeunder Section 13(2) of the Securitizations and Reconstruction ofthe Financial Asset and Enforcement of Security Interest Act, 2002(SARFESAI, 2002) was issued on 21[st]December, 2012 seekingrepayment in the amount of Rs. 23,31,10,298.85/-(Rs. TwentyThree Crores Thirty One Lakhs Ten Thousand Two HundredNinety Eight rupees and Eighty Five Paise only).

d. In response to the said notice dated 21[st]December, 2012,respondent No. 3/Company addressed communication dated 15[th]January, 2013, to the respondent No. 1/Bank, to the effect that itpossesses assets worth more than the required amount andrequested that possession of the subject property be not taken oversince the same is the residential property of the petitioner.respondent No. 3/Company addressed communication dated 15[th]January, 2013, to the respondent No. 1/Bank, to the effect that itpossesses assets worth more than the required amount andrequested that possession of the subject property be not taken oversince the same is the residential property of the petitioner.

e. Eventually the petitioner approached the DRT and filed the saidS.A. no. 41 of 2013 impugning the said notice dated 21[st]December, 2012.The DRT vide order dated 18[th]April, 2013,granted ex-parte injunction in favour of the petitioner andS.A. no. 41 of 2013 impugning the said notice dated 21[st]December, 2012.The DRT vide order dated 18[th]April, 2013,granted ex-parte injunction in favour of the petitioner and

restrained the respondent No. 1/Bank from taking over the physicalpossession of the subject property.

f. Subsequent thereto, the DRT vide order dated 12[th]February 2016,disposed off the said S.A. no. 41 of 2013 with the followingobservations:

“Considering the facts and circumstances of thecase, prima facie I find no force in the present S.A.and the same is liable to be dismissed. However,considering the fact that applicant is residing in theimpugned property alongwith her family membersand there are other secured assets available with theBank to recover its dues, therefore, it is directedthat till the other assets of borrowers are disposedoff by the bank, the possession of impugnedproperty be not taken over by the bank nor it besold. In case if the entire dues of the bank are notrecoveredfromthesaleofothermortgagedproperties, the respondent bank is held entitled torecover the same from the sale of impugnedproperty.

At this stage when the order is pronounced.Ld.Counsel for the respondent bank submits thatthough the bank has taken the physical possessionof other secured assets of the borrower company,however, they are not able to sell the same.

Ld. Counsel for the applicant submits that theyhave ready buyer for the property but therespondent bank is not cooperating them and theyare not allowing the proposed buyer for inspectionof the secured asset. This contention was stronglyopposed by the Ld. Counsel for respondent bankwho submits that the applicant/borrower has neverbrought the buyer before the respondent bank. Ld.Counsel for both the parties prayed for appointmentof Receiver for the purpose of facilitating sale ofthe other properties situated at Punjab.Recordreveals that the applicants have already preferred

an SA before DRT-II Chandigarh challenging theSARFAESI Action of the respondent bank quathose properties. Therefore, parties are directed toapproach the concerned DRT for the purpose ofappointing Receiver as this Tribunal has nojurisdiction over the said properties.”

g. perusal of the above extracted paragraph clearly reflects thatalthough the Presiding Officer at DRT-I Delhi was of the view thatprima facie the petitioner does not have case, however,considering the fact that she was resident of the subject property,it is directed that till the other assets of borrowers are disposed offby the respondent no. 1/Bank, neither the possession of impugnedproperty be taken over nor it be sold.although the Presiding Officer at DRT-I Delhi was of the view thatprima facie the petitioner does not have case, however,considering the fact that she was resident of the subject property,it is directed that till the other assets of borrowers are disposed offby the respondent no. 1/Bank, neither the possession of impugnedproperty be taken over nor it be sold.

h. It was, however, directed that if the entire dues of the respondentno. 1/Bank are not recovered from the sale of the other mortgagedproperties, they were entitled to recover the same from the sale ofthe subject property.no. 1/Bank are not recovered from the sale of the other mortgagedproperties, they were entitled to recover the same from the sale ofthe subject property.

i. Aggrieved by the said order dated 12[th]February, 2016, passed bythe DRT, the respondent No. 1/ Bank carried the same in appeal tothe Debt Recovery Appellate Tribunal, vide said Appeal No. 163 of2016. The DRAT vide the impugned judgment and order dated 29[th]June 2017, allowed the appeal by directing as follows:the DRT, the respondent No. 1/ Bank carried the same in appeal tothe Debt Recovery Appellate Tribunal, vide said Appeal No. 163 of2016. The DRAT vide the impugned judgment and order dated 29[th]June 2017, allowed the appeal by directing as follows:

“Since the DRTs deal with such like matterseveryday it cannot be accepted that the PresidingOfficer of the concerned DRT in the present casewas not aware of this legal position laid down bythe Apex Court.In the judicial hierarchy of ourcounty no Court/tribunal can even think of ignoringthe law laid down by the highest Court and so theimpugned order giving relief to the surety that herproperty will not be sold till the properties of theeveryday it cannot be accepted that the PresidingOfficer of the concerned DRT in the present casewas not aware of this legal position laid down bythe Apex Court.In the judicial hierarchy of ourcounty no Court/tribunal can even think of ignoringthe law laid down by the highest Court and so theimpugned order giving relief to the surety that herproperty will not be sold till the properties of the

borrower are sold cannot be sustainedat all.Therefore, the appeal filed by the appellant Bankagainst the impugned order of the DRT has to beallowed and is hereby allowed and the directiongiven by the DRT in the impugned order dated 12[th]February, 2016 to the Bank not to proceed againstthepropertyoftherespondentNo.1(guarantor/mortgagor) till properties of respondentNo. 2 (principal borrower) are sold is set aside.Consequently the appellant Bank will now be atliberty to take immediate possession of the propertyof respondent no. 1 and proceed to sell the same. Incase the appellant Bank is unable to take possessionof the property in question within ten days due toany resistance by respondent no. 1 it will be atliberty to file an appropriate application before thistribunal for ensuring that this decision of theappellate tribunal is given full effect to/executedand the Bank does not have to run from pillar topost to get that relief since without ensuring thatresult to the Bank complete justice will not bedone.”

j. In doing so, the learned DRAT placed reliance on the followingdecisions:decisions:

1. Bank of Bihar Ltd. vs. Damodar Prasad & Anr., reported as1969 SCR (1) 62.1969 SCR (1) 62.

2. IndustrialInvestmentBankofIndiavs.BishwanathJhunjhunwala, being Civil Appeal No. 4613 of 2000 decided on18[th]August, 2009.Jhunjhunwala, being Civil Appeal No. 4613 of 2000 decided on18[th]August, 2009.

3. Union Bank of India vs. Satyawati Tandon, reported as (2010)9SCR1.SCR1.

k. In terms of the dictum of the Hon’ble Supreme Court of India in theaforesaid decisions, it was observed that the legal positioncrystallized is that the liability of the guarantor and principalaforesaid decisions, it was observed that the legal positioncrystallized is that the liability of the guarantor and principal

debtors are co- extensive and are not in the alternative.

3.Having perused the case record and the impugned judgment and orderdated 29[th]June, 2017, we are in complete agreement with the decisionarrived at by the learned DRAT, in keeping with the dictum of the Hon’bleSupreme Court of India.

4.The writ petition is resultantly devoid of merits and is accordinglydismissed.

NOVEMBER 27, 2017as

SIDDHARTH MRIDUL(JUDGE)DEEPA SHARMA(JUDGE)