BEFORE THE DEBTS RECOVERY TRIBUNAL- III, DELHI AT NEW
DELHI
SECURITISATION APPLICATION NO. OF 2021
IN THE MATTER OF:
[--] … APPLICANT
VERSUS
[--] … RESPONDENT
INDEX
Sr. No. Particulars Page No. Court Fee
01. List of Dates & Events
02. Memo of Parties
03. Securitisation Application
04. Affidavit in Support of S.A.
05. List of documents along-with
copies of documents
06. Interlocutory Application for
stay
07. Affidavit in Support of I.A.
08. Vakalatnama
Applicant
Through
PLakhe: New Delhi
Date:
COUNSEL
BEFORE THE DEBTS RECOVERY TRIBUNAL- III, DELHI AT NEW
DELHI
SECURITISATION APPLICATION NO. OF 2021
IN THE MATTER OF:
[--] … APPLICANT
VERSUS
[--] … RESPONDENT
LIST OF DATES & EVENTS
S. NO. DATE PARTICULARS
01. 28.05.2018 Applicant and her deceased husband
applied and was sanctioned a home loan
facility from [--]., vide account nos. [--]
amounting to INR. 29,00,000/- for a term
of 240 months, to be repaid in monthly
installments and [--] amounting to INR.
50,000/- for a term of 60 months, to be
repaid in monthly installments.
02. 30.05.2018 The said Loan Facility was secured by [--]
upon [--]’s insistence, by means of a Loan
Protection Plan, [--] for each loan, vide
master policy no. 4217-400402-17-
7000007 -00-000 and policy nos. 2211-
200201-18-1000098-00-000 and 2211-
200201-21-1000098-01-000.
03. March, 2020 The worldwide pandemic of SARS Cov-19
pandemic breaks out, running the country
into a lockdown, and causing hundreds of
thousands of casualties.
04. 21.07.2020 The Applicant’s husband contracts Covid-
19 and succumbs to the disease.
05. 24.09.2020 The Applicant, through [--], applies to [--
], informing [--] about the demise of her
husband, and raised a claim for the same.
07. 08.10.2020 [--] repudiates the Applicant’s claim,
washing their hands of any obligations.
08. 16.04.2021 The Applicant initiated litigation for
recovery of policy amount against [--] by
filing an application before the Delhi State
Legal Service Authority (South) at Saket
District Court, Saket, New Delhi.
09. 08.06.2021 The Respondent issues notice u/s 13(2) of
SARFAESI Act, 2002 to the Applicant.
10. 27.07.2021 The Applicant replies to the notice u/s
13(2) to the Respondent.
11. 17.08.2021 The Respondent initiates SARFAESI action
against the Applicant u/s 13(4) of
SARFAESI Act, 2002 by taking symbolic
possession and affixing the Possession
Notice at the Applicant’s residence.
12. August, 2021 The Applicant is preferring the present
Securitisation Application before this
Hon’ble Tribunal.
New Delhi Applicant
Date: Through
Counsel
BEFORE THE DEBTS RECOVERY TRIBUNAL- III, DELHI AT NEW
DELHI
SECURITISATION APPLICATION NO. OF 2021
IN THE MATTER OF:
[--] … APPLICANT
VERSUS
[--] … RESPONDENT
MEMO OF PARTIES
MRS. [--]
W/o (Late) Sh. [--]
R/o [--]
… APPLICANT
VERSUS
[--]
D-17, SECTOR – 3, NOIDA – 201301
… RESPONDENT
New Delhi Applicant
Date: Through
Counsel
BEFORE THE DEBTS RECOVERY TRIBUNAL- III, DELHI AT NEW
DELHI
SECURITISATION APPLICATION NO. OF 2021
IN THE MATTER OF:
MS. [--]
W/o (Late) [--]
R/o M-47/B, GALI NO. 4, NEW MAHAVIR NAGAR,
TILAK NAGAR, WEST DELHI – 110045 … APPLICANT
VERSUS
[--]
D-17, SECTOR – 3, NOIDA – 201301 … RESPONDENT
APPLICATION UNDER SECTION 17(1) OF THE SECURITISATION AND
RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF
SECURITIES INTEREST ACT, 2002 (AS AMENDED)
APPLICANT ABOVENAMED RESPECTFULLY SUBMITS:
DETAILS OF APPLICATION:
1. PARTICULARS OF THE APPLICANTS:
(i) Name and address of the Applicant:
Ms. [--],
W/o (Late) Sh. [--]
R/o M-47/B, GALI NO. 4, NEW MAHAVIR NAGAR,
TILAK NAGAR, WEST DELHI – 110045
2. PARTICULARS OF THE RESPONDANTS:
(i) Name and address of Respondent :
[--]
D-17, SECTOR – 3, NOIDA – 201301
3. JURISDICTION :
The Applicant, by means of the present Securitisation
Application, is challenging the measures taken by the
Respondent under section 13(4) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Securities Interest Act, 2002 as the Authorized Officer has
taken possession of the property of the Applicant on
17.08.2019. As the subject property is situated at New
Mahavir Nagar, Tilak Nagar, West Delhi – 110018, the
Applicant declares that the subject matter falls within the
territorial jurisdiction of this Hon'ble Authority, i.e., Debts
Recovery Tribunal I, New Delhi.
4. LIMITATION:
The Applicant submits that the application is within limitation
prescribed under sub-section (i) of section 17 of the
Securitization and Reconstruction of Financial Assets and
Enforcement of Securities Interest Act, 2002. The Defendant
has affixed at the property of the Applicant a notice u/s 13(4)
of SARAESI Act, 2002, declaring their taking the possession of
the Applicant’s property with effect from 17.08.2021, and
against which the present Securitization Application is being
filed. Therefore, the same is within limitation as per the extant
law. A copy of the Possession Notice dated 17.08.2021 is
annexed herewith as Annexure-A/1.
5. FACTS OF THE CASE:
5.1 That the Applicant herein, is preferring instant Securitization
Application, impugning/assailing the steps taken by the
Respondent under the provisions of the SARFAESI Act, 2002,
2002, being done by the Respondent in the claimed recovery
of its alleged dues amounting to approximately Rs.
29,55,720.42/- (Rupees Twenty Nine Lakh Fifty Five Thousand
Seven Hundred and Twenty and Paise Forty Two only), which
is totally illegal, arbitrary, mala-fide and in gross violation of
the provision of Rule 8(5) of the Security Interest Enforcement
Rules, 2002 which stipulates that only part of the property be
sold which is sufficient to satisfy the dues of the secured
creditor.
5.2 That the Respondent is a Financial Institution and is carrying
business from one of its offices at D-17, Sector – 3, NOIDA –
201301.
5.3 That it is alleged that in or about year 2018 as the Applicant
approached and requested the Respondent for financial
assistance of Loan against Property for sum of Rs. 29,50,000/-
(Rupees Twenty Nine Lakh Fifty Thousand only).
5.4 That the Respondent having considered the request of the
Applicant granted them the said alleged loan against property
of Rs. 29,50,000/- (Rupees Twenty Nine Lakh Fifty Thousand
only) vide Loan Agreement dated 09.04.2018. A copy of the
Loan Agreement dated 09.04.2018 is annexed herewith as
Annexure-A/2.
5.5 That at the time of availing the said Loan Facility from the
Respondent, the Applicant was made to purchase a Loan
Protection Plan policy sold by [--], and was assured by the
Respondent that in the unfortunate event of his demise, the
said insurance policy shall cover the remainder of his
outstanding dues owed to the Respondent, and the Applicant
need not worry about ever losing their home, i.e., the property
against which loan was granted.
5.6 That the husband of the Applicant contracted Corona virus in
July, 2020 and eventually succumbed to it. After the demise of
the Applicant herein even approached the Respondent that the
Respondent should claim the remainder amount of loan from
the insurance company, i.e. [--], however the Respondent was
adamant upon taking possession and auctioning off the
property, as is evident from their haste in declaring the
Applicant’s account as an NPA, despite all installment
payments being made in full before the loan Applicant’s
demise.
5.7 That the Respondent, on 31.03.2021, classified the account of
the Applicant as NPA and thereafter the notice U/s 13(2) of the
SARFAESI Act, 2002 was issued by the Respondent upon the
Applicant on 08.06.2021. A copy of the notice dated
08.06.2021 u/s 13(2) of SARFAESI Act, 2002 is enclosed
herewith as Annexure-A/3.
5.8 That the Applicant was surprised on receipt of said notice, the
Applicant replied the said notice in detail on 27.07.2021,
apprising them once again about the existence of the
insurance policy, the repudiation of the said insurance policy,
and the initiation of litigation against [--] as well as requesting
the Respondent’s support as the said policies were purchased
by the loan Applicant upon the representations made by the
Respondent. A copy of Reply dated 06.07.2021 is annexed
herewith as Annexure-A/4.
5.9 That it is further submitted that the deceased was the sole
bread earner of his family and due to his passing away, the
family is in dire financial straits. It would be pertinent to
mention herein that the Applicant has already initiated
litigation against the provider of the insurance policy, [--]
before the concerned court having appropriate jurisdiction. It
is further submitted that despite being aware of the
aforementioned circumstances and genuineness, the
Respondent appears to be on a vendetta against the Applicant
and has now, furthering their harassment, initiated
proceedings u/s 13 of SARFAESI Act, 2002 against the
Applicant by taking symbolic possession of the disputed
property on 17.08.2021.
5.10 That the said action on part of the Respondent is against the
very basic principle of law, against the specific provisions of
the SARFAESI Act, 2002. The Applicant, under no
circumstance, can be thrown out from the said premises [--].
The said notice is wholly illegal, unconstitutional and
unenforceable in law and the Respondent cannot be permitted
to take the law in its own hands and take over the possession
of the self occupied premises of the Applicant.
5.11 That the Applicant herein has a prima facie good case and
balance of convenience lies in favour of the Applicant and
against the Respondent and the Applicant shall suffer
irreparable loss and injury if the physical possession of the
residential premises is taken by the Respondent.
5.12 That the Applicant herein reserves his right to amend the
present Securitisation Application, if required.
5.13 That the Applicant here respectfully further submit action of
the Respondent is wholly untenable in law and is liable to be
set aside/quashed inter alia, on the following amongst other
grounds:
GROUNDS
I. Because action of the Respondent in issuing the notice u/s
13(2) of the SARFAESI Act, 2002, is illegal and untenable
in law. This has been done despite the Respondent being
aware of the demise of the original loan Applicant as well
as about the insurance policies that was sold to the Loan
Applicant in the premises of the Respondent upon the
Respondent’s insistence.
II. Because the action of the Respondent is wholly untenable
in law since the FI had been receiving the installments
regularly until the demise of the loan Applicant.
III. Because the Respondent has taken possession of the
property in question on 17.08.2021 which is against the
principle of natural justice as further installments are still
due and to be paid.
IV. Because in case the Respondent takes over the physical
possession of the disputed property, the Applicant and her
family would virtually be reduced to a state of
homelessness, which would happen if the Respondent is
allowed to obtain possession of the disputed property.
This would result in untold miseries and hardships upon
the bereaved Applicant and her family.
V. Because the Applicant and her husband were led into
purchasing the insurance policies on insistence of the
Respondent upon the latter’s assurance that in case of
death/ permanent disability of the Applicant and/or her
deceased husband, their family would be secured as all
their obligations were to be covered by [--]’s insurance
policies. However, upon the repudiation of the claim by [-
-], the Respondent instead of behaving in a humane
manner, started acting in a predatory and hostile manner.
It would be pertinent to mention herein that the Applicant
had apprised the Respondent, in the former’s reply, dated
06.07.2021, to the latter’s notice dated 08.06.2021 u/s
13(2) of SARFAESI Act, 2002, about their initiation of
litigation against [--] for getting their claim admitted with
[--], thereby paying off all dues towards the Respondent.
Despite the aforementioned, the Respondent is unwilling
to show a little humanity towards a bereaved family and
is bent upon taking away from the Applicant their home,
reducing them to homelessness.
6. RELIEF SOUGHT:
In view of the aforementioned facts in para 5, the Applicant
respectfully prays for the following reliefs:
(A) To Quash and set aside the Notice under section 13(2) dated
08.06.2021 under SARFAESI Act, 2002 issued by the
Respondent;
(B) To declare all steps taken by Respondent under the SARFAESI
Act, 2002 as illegal, arbitrary, and against the principles of
natural justice;
(C) To declare that the actions and measures initiated by the
Respondent on 17.08.2021 u/s 14(1) of the SARFAESI Act,
2002 by taking over possession of the property bearing No. [--
] for the recovery of its alleged dues as illegal, arbitrary and,
against the principles of natural justice, equity and,
conscience;
(D) Hold and declare that the Possession Notice dated 17.08.2021
is void ab initio, illegal, arbitrary and thereby quash/set aside
the same.
(E) Restrain the Respondent its employees, representative,
officers, agents etc., from proceedings ahead for taking over
physical possession of the property or any other notice, action
or measure arising from or in connection with the disputed
property.
(F) The cost of the application in favor of the Applicant and
against the respondent;
(G) Any other relief/reliefs that this Hon’ble Tribunal may deem fit
and proper in the facts and circumstances of the case may also
be granted to the Applicant.
7. INTERIM RELIEF/ ORDER SOUGHT PENDING FINAL DECISION
OF THE APPLICATION THE APPLICANT SEEK ISSUE OF THE
FOLLOWING INTERIM ORDERS:-
(a) That during the pendency of the present application the
action/measures particularly taking physical possession of the
said property bearing No. [--] be stayed;
(b) For such other orders and further reliefs as the Hon’ble
Tribunal may deem fit and consider proper to the Applicant in
the facts and circumstances of the application.
8. MATTER PENDING WITH ANY OTHER COURTS, ETC.
The Applicant declares that to their knowledge the matter
regarding which the present application is being made is not
pending against the Respondent before any other court of law
or any other authority or any other bench of this Tribunal;
9. PARTICULARS OF PAY ORDER IN RESPECT OF APPLICATION
FEE:
I. Name of FI on which drawn:
II. Number of the demand draft:
III. Date of the demand draft:
IV. Amount of the demand draft: Rs
10. DETAILS OF INDEX:
An index in duplicate containing details of documents to be
relied upon has been provided in beginning of “Paper Book”.
11. LIST OF ENCLOSURES:
Attached with application.
APPLICANT
THROUGH
COUNSEL
VERIFICATION
I, [--], the Applicant hereby solemnly verify that the contents of
paragraphs 1 to 5 are true to my personal knowledge and belief and
I have not suppressed material facts and the contents of paragraphs
6 to 11 are based on information received from counsel believed to
be true.
Place: New Delhi Applicant
Date:
BEFORE THE DEBTS RECOVERY TRIBUNAL- III, DELHI AT NEW
DELHI
SECURITISATION APPLICATION NO. OF 2021
IN THE MATTER OF:
[--] … APPLICANT
VERSUS
[--] … RESPONDENT AFFIDAVIT
I, [--], W/o (Late) Sh. [--], R/o [--], do hereby solemnly affirm as
under:
01. That I am the Applicant in the above matter and familiar with
the facts of the case and competent and able to depose to this
affidavit.
02. That the present Securitisation Application has been drafted by
my counsel on my instructions. The contents of the same have
been read over and explained to me in vernacular and I have
signed this affidavit after understanding the contents of the
same which are true and correct. The facts stated in the
accompanying Application are true to my knowledge and the
same be read as part and parcel of this affidavit which are not
being repeated herein for the sake of brevity.
Deponent
VERIFICATION:
Verified at Delhi on this ____ day of August, 2021 that the
contents of the above affidavit are true and correct to my
knowledge. No part of it is false and nothing material has been
concealed thererom.
Deponent
BEFORE THE DEBTS RECOVERY TRIBUNAL- III, DELHI AT NEW
DELHI
SECURITISATION APPLICATION NO. OF 2021
IN THE MATTER OF:
[--] … APPLICANT
VERSUS
[--] … RESPONDENT
List of Documents
S. NO. PARTICULARS PAGE NO.
01. Annexure-A/1
Copy of the Possession Notice dated
17.08.2021
02. Annexure-A/2
A copy of the Loan Agreement dated
09.04.2018
03. Annexure-A/3
Copy of notice dated 08.06.2021 u/s
13(2) of SARFAESI Act, 2002
04. Annexure-A/4
Copy of Reply dated 06.07.2021
New Delhi Applicant
Date: Through
Counsel
