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2016 (2) TMI 643 - HC - Indian LawsConcept of restitution - SARFAESI Act - possession of the subject mortgaged property - Held that:- DCHL has failed to comply with the conditional order passed by the DRT to deposit ₹ 10 crores, and has merely deposited ₹ 1 crore that too long after the time stipulated therefor had expired. They have repeatedly used the judicial process to deny the petitioner their right to enforce the mortgage in terms of the provisions of the SARFAESI Act, to take possession of the subject mortgaged property, and to put it to sale. They have also violated the solemn undertaking given to this Court more than a year and a half ago to remove the machinery from the premises by 28.02.2014, and have continued to retain possession of the subject property in brazen defiance, and utter disregard, of the order of the Chief Metropolitan Magistrate and the order of the Division bench of this Court The judicial adventures of DCHL, to somehow or the other retain possession of the subject property culminating in the order of the Debt Recovery Appellate Tribunal have all come to naught. Yet they have not removed their machinery from the subject premises, possession of which was handed over to the petitioner by the advocate commissioner on 15.05.2013 more than two years. The petitioner has been unable either to recover its debt in excess of ₹ 62 crores, or to take exclusive and absolute control over the subject property. Even though sale of the subject property was confirmed in favour of the highest bidder in the auction held on 27.05.2015, the petitioner has not been able to deliver possession to him till date. The only way in which the petitioner can be restituted for the loss and injury suffered by them, on account of the interim order is if a direction is issued to the respondent police officers to provide them necessary assistance in taking absolute and exclusive control of the subject property, and to have the machinery and movables of DCHL removed therefrom. A writ of mandamus shall be issued accordingly. Notwithstanding the intransigence of DCHL, in failing to vacate the premises and remove the machinery therefrom, this Court cannot ignore the possibility of the expensive printing machinery of DCHL, lying in the subject premises, suffering extensive damage if sufficient safeguards are not taken while removing it therefrom. We consider it appropriate, therefore, to permit DCHL to remove its machinery and moveables from, and vacate, the subject premises by 31.08.2015. If they fail to do so by then, the respondent police officers shall, on a written request from the petitioner, provide them necessary assistance in having the machinery and other movables of DCHL removed from the subject premises without interference from either DCHL or any one else on their behalf. This order shall also not preclude the petitioner from initiating appropriate legal proceedings for damages on account of the loss and injury suffered by them as a result of the repeated, albeit unsuccessful, forays by DCHL into the portals of this Court. Both the Writ Petitions are allowed with exemplary costs of ₹ 25,000/-, which DCHL shall pay the petitioner-bank within four weeks from today. The miscellaneous petitions pending, if any, shall also stand disposed of.
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