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