Sh. Jasbir Singh & Anr v. M/S Pheonix Arc Pvt. Ltd. & Anr

RAJIV SAHAI ENDLAW, J. DECEMBER 20, 2019 "pp"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 20th December, 2019. + CS(COMM) 634/2019 & IAs No.16100/2019 (u/O XXXIX R-1&2 CPC), 16101/2019 (for condonation of 20 days delay in re-filing the suit) JASBIR SINGH & ANR. ..... Plaintiffs Through: Mr. R.M. Sinha, Mr. Sheetesh Khanna and Mr. Prateek Mohan Sinha, Advs. Versus PHEONIX ARC PVT. LTD. & ANR. ..... Defendants Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The two plaintiffs namely Jasbir Singh and Raj Dulari have instituted this suit against Pheonix Arc Pvt. Ltd. and Karnataka Bank, for specific performance of the Agreement/Settlement dated 16th January, 2017, by directing the defendant no.1 Pheonix Arc Pvt. Ltd. to accept the balance payment as per the Settlement Agreement and to release the mortgaged property of the plaintiffs bearing no.E-52, Multan Nagar, Paschim Vihar, New Delhi. 2. The suit, instituted on 22nd August, 2019 and re-filed on 31st August, 2019, 11th September, 2019, 20th September, 2019, 9th October, 2019, 13th November, 2019 and 16th November, 2019, came up first before this Court on 19th November, 2019 when after hearing the senior counsel then appearing for the plaintiffs, the suit was not found to be maintainable. On request of the senior counsel for the plaintiffs, the reasons therefor were not recorded and the suit adjourned to 11th December, 2019. 3. On 11th December, 2019, Mr. Sandeep Khatri, Advocate who had filed the suit for the plaintiffs stated that he did not want to appear in this suit and wanted to send a notice of discharge. Acceding to the said request, the suit was adjourned to 20th December, 2019. 4. Mr. R.M. Sinha, Mr. Sheetesh Khanna and Mr. Prateek Mohan Sinha, Advocates appear for the plaintiffs and Mr. R.M. Sinha, Advocate has been heard. However on a query being put to Mr. R.M. Sinha, Advocate during the hearing, Mr. Sandeep Khatri, Advocate sitting in the second row is also found to be instructing him. 5. The case of the plaintiffs is, that (i) the plaintiffs are husband and wife and proprietors of Royal Associates and Raj Associates respectively; (ii) Royal Associates and Raj Associates availed an overdraft facility from the defendant no.2 Karnataka Bank and to secure re-payment, the plaintiffs created equitable mortgage of property no.E-52, New Multan Nagar, New Delhi in favour of the defendant no.2; (iii) the plaintiffs drew under the said facility from the defendant no.2 but were unable to re-pay and therefore the accounts of Royal Associates and Raj Associates turned Non Performing Assets (NPA) on 5th December, 2012 and 29th January, 2013 respectively; (iv) the defendant no.2, on 4th May, 2013 issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) for an amount of Rs.5,83,44,764/- qua the account of Royal Associates and an amount of Rs.1,65,40,584/- qua the account of Raj Associates; (v) the defendant no.2 took symbolic possession of the mortgaged property on 16th August, 2013; (vi) several other litigations started between the plaintiffs and defendant No.2 Karnataka Bank; applications under Sections 14 and 17 of the SARFAESI Act were filed; (vii) in the first week of January, 2016, the plaintiffs learnt that the defendant no.2, vide Assignment Deed dated 28th December, 2015, had assigned/sold the said loan as well as mortgage in favour of defendant no.1, for a consideration of Rs.3,30,00,000/-; (viii) the plaintiffs approached defendant no.1 for settlement; (ix) on 1st March, 2016 the plaintiffs accepted the offer of the defendant no.1 as sent by e-mail dated 29th February, 2016; (x) on 10th April, 2016 the settlement arrived at between the plaintiffs and defendant no.1 failed and defendant No.1 filed several litigations against the plaintiffs including Cont.(Cas) No.485/2016 on 30th April, 2016 and Cont.(Cas) No.1028/2016 on 8th September, 2016; (xi) on 7th December, 2016 again sett