TMI Blog2020 (12) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... years prior to the outbreak of the pandemic itself. Such cases cannot be those which would be entitled to benefits under the policies of the RBI which are meant to give some relief during the pandemic. Moreover, in the present case, despite repeated opportunities having been given by the Division Bench at the stage when the DRT proceedings were going on and even after the filing of the present writ petition, the same have been of no avail - Respondent is permitted to proceed against the Petitioners, in accordance with law - Petition dismissed. - W.P.(C) 3580/2020 & CM APPL. 12727-29/2020, 21106-07/2020 - - - Dated:- 18-12-2020 - JUSTICE PRATHIBA M. SINGH For the Petitioner : Ms. Meenakshi Arora, Senior Advocate with Mr. Vivek Jain, Mr. Nirvikar Singh Mr. Manish Shekari Mr. Zulfiquar Memon, Advocates (M:9990252039). For the Respondent : Mr. Rajeeve Mehra, Senior Advocate with Mr. Atul Sharma, Mr. Abu John Mathew, Mr. Madhusudan, Mr. Baiju Mathew, Advocates for R-1 with Ms. Evneet Uppal, AR of Respondent No.1 in person. (M: 9819930653) Mr. Sudhir K. Makkar, Senior Advocate with Ms. Saumya Gupta, Advocate for R-2. (M: 9711959599) JUDGMENT Prathiba M. Singh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DRT did not grant an interim order in the said application, a writ petition was filed by the Petitioners being W.P.(C) 12091/2018, wherein the following directions were issued on 3rd November, 2018: 10. At this stage, Mr Chandhiok, learned Senior Counsel states that the petitioners undertake to deposit a sum of ₹10 crores within a period of two weeks from today. He also submits that the petitioners would repay the entire dues within a period of 12 months from today. 11. The petitioners are bound down to the undertaking given on their behalf that they shall deposit a sum of ₹10 crores within a period of two weeks from today. In view of this undertaking, this Court considers it apposite to direct that the Receiver shall not take over the possession of the property till the DRT considers the petitioners request for interim relief in accordance with law. 5. As per the above directions, a sum of ₹ 10 crores was to be deposited by the Petitioners within two weeks and the entire dues were to be cleared within 12 months. The Court recorded these statements on behalf of the Petitioners as undertakings. 6. Admittedly, these directions were not complied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty of the Petitioner in Anand Lok was also taken possession of, no attempt has been made to dispose it off since 2018 and it is only now that the property is being put on sale on a deflated value. It is submitted that during this period, real estate prices have increased by 22-25%, which is a fact of which judicial notice can be taken. 12. Ms. Arora further submits that the Petitioner gave its OTS offer on 6th November, 2019 and it was only five months later i.e. on 3rd March, 2020 that the confirmation of their in-principle agreement to OTS was received from IL FS. The final settlement proposal with some corrections was finally issued to the Petitioner on 18th March, 2020, with the direction that payments have to be made by 27th March, 2020. This was, however, contrary to their understanding inasmuch as, as per the proposal sent by the Petitioner, 90 days time was sought from the date of acceptance of the OTS proposal till the date of payment. In fact it was offered, that from the date of acceptance till the date of payment, interest@9% per annum would also be payable to IL FS. Thereafter, in March, 2020, the lockdown due to the Covid-19 pandemic took place and the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion, in view of the defaults of the Petitioners. The Petitioners only remedy, if any, would be in terms of the SARFAESI Act and not by way of writ petition invoking the extraordinary jurisdiction of this Court. 17. Reliance is placed on UBI v. Satyavati Tondon[(SLP(C) No.10145 of 2010)] and the recent judgment of the Supreme Court in K. Virupaksha vs The State Of Karnataka (SLP (Criminal) No.5701 of 2019), wherein it has been categorically held, that once SARFESI proceedings have been commenced, only the Debt Recovery Tribunal (DRT) would have powers to intervene, and no intervention is permissible in writ jurisdiction. 18. On merits, Mr. Mehra submits that IL FS s response on 3rd March, 2020 was a counter-offer to the Petitioner, containing various conditions, the principal one being that the entire sum of ₹ 100 crores would have to be paid by 27th March, 2020. The said counter-offer made it very clear that it only contained an in-principle agreement, and no definite settlement was being entered into, till the terms were agreed. Since the Petitioner did not respond to the said counter-offer, nor could it fulfil the conditions therein, the offer was finally revoked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to the said benefits as well. 24. On instructions, she submits that the Petitioners may be given time till 31st March, 2021, to honour the OTS proposal for ₹ 100 crores, failing which, IL FS may be permitted to take steps in accordance with law. Analysis and Findings 25. The question that arises is whether the said RBI circulars and the RBI policy guidelines for COVID-19 would apply to the Petitioners and whether the Petitioner, can in law, pray that the revocation of the OTS proposal be quashed and IL FS be directed to abide by the OTS proposal. 26. The facts that emerge in this case show that the Petitioners have been in default since 2018. Various legal proceedings have already commenced between the parties and in fact the reprieve given by the ld. Division Bench to the Petitioners vide order dated 3rd November, 2018 was also not availed of by the Petitioners. Thus, the Petitioners are not only in default of the loan but have also failed to adhere to undertakings given before the ld. Division Bench of this Court. The DRT has also, vide its final order dismissed the challenge by the Petitioners to the SARFAESI proceedings initiated by the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of their various properties. Time was then sought by Respondent No.2, to complete the diligence and verification. 30. This Court had granted time on a few occasions owing to the lockdown to enable the NBFC to complete the diligence and verification. However finally, since the valuation etc. was not concluded by the NBFC, the final hearing commenced on 25th September, 2020. Even, thereafter, till the conclusion of arguments, there has been no development in terms of confirming payment of ₹ 100 crores by the NBFC to the Petitioners. 31. On the last date, Ms. Meenakshi Arora, ld. Sr. counsel sought time till 31st March, 2021 to honour the proposal of 100 crores to be paid to IL FS, in response to which ld. counsels for IL FS stated that the OTS proposal stands revoked. 32. It is in this background that the Court has to consider whether the Petitioners are entitled to any reliefs. A perusal of the RBI circulars and policy guidelines shows that these are meant for mitigating the burden of debt which may have been brought about due to the COVID-19 pandemic. This Court does not consider the present case as one wherein any disruption took place due to the COVID-19 pandem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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