Gujarat High Court
Housing Development Finance ... vs Binaben Harsukhbhai Oza W.O. Pramod ... on 17 September, 2025
NEUTRAL CITATION
R/CR.MA/7802/2014 ORDER DATED: 17/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7802 of 2014
==========================================================
HOUSING DEVELOPMENT FINANCE CORPORATION LTD. - THRO'
DEEPAK BHASKERBHAI BHATT & ANR.
Versus
BINABEN HARSUKHBHAI OZA W.O. PRAMOD ISHWARBHAI VARIER &
ORS.
==========================================================
Appearance:
DELETED for the Applicant(s) No. 1
NANAVATI & CO.(7105) for the Applicant(s) No. 2
MS ASHLESHA M PATEL(6127) for the Respondent(s) No. 1
MR. CHINTAN DAVE ADDL, PUBLIC PROSECUTOR for the Respondent(s)
No. 3
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/09/2025
ORAL ORDER
1. Heard learned advocate Mr. Maulik Nanavati appearing for the petitioners representing the authorised officer of the Housing Development Finance Corporation Ltd., (for short "
the HDFC Ltd"). Learned advocate for the private respondent did not remain present even when the matter is taken up for hearing and also heard learned APP Mr. Chintan Dave for the respondent State.
2. The petition seeks quashment of the FIR bearing C.R No. I, 111 of 2014 registered with Gorwa Police Station, Vadodara for the offences punishable under Sections 380, 424 and 451 read with section 114 of the Indian Penal Code.
Page 1 of 5 Uploaded by MARY VADAKKAN(HC00204) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:38:09 IST 2025NEUTRAL CITATION R/CR.MA/7802/2014 ORDER DATED: 17/09/2025 undefined
3. Before we proceed to decide the issue, it is incumbent to refer the factual aspects. The HDFC Ltd has carried the proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act, 2002") against Anshu Anilkumar Buch who was the loanee- principal borrower and pursuant to which the proceedings under the SARFAESI Act undertaken against the Anshu Anilkumar Buch where the authorised officer of the HDFC Ltd went to take the possession of the premises mortgaged with the HDFC Ltd, he found that the complainant was residing on the premises. On inquiry the authorised officer found that the principal borrower has inducted the complainant as a tenant in the premises and therefore the authorised officer has instructed the complainant to vacate the premises after packing his belongings on 19.2.2014. The person living in the premises filed the questioned complaint on 19.5.2014 instead.
4. It is submitted by learned advocate Mr. Maulik Nanavati as well as learned APP that the FIR was also registered against the principal borrower namely Anshu Anilkumar Buch and the same FIR was registered as a Criminal Case No. 38057 of 2014 before the 27 th Addl. Chief Judicial Magistrate, Vadodara as the charge sheet was filed. It is further submitted that learned Additional Chief Judicial Page 2 of 5 Uploaded by MARY VADAKKAN(HC00204) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:38:09 IST 2025 NEUTRAL CITATION R/CR.MA/7802/2014 ORDER DATED: 17/09/2025 undefined Magistrate, after appreciating the evidence on record pleased to acquit the principal borrower Anshu Anilkumar Buch. The judgment is placed on record. The complainant did not remain present which is revealed from the copy of the judgment.
4.1 Learned advocate Mr. Nanavati submitted that since Anshu Anilkumar Buch had repaid his loan and interest thereon the SARFAESI proceedings were dropped against him and the possession of the premises upon which the security interest was created had been returned back to Anshu Anilkumar Buch.
4.2. In the aforesaid factual premises, he submitted to pass necessary order, in favour of the petitioners.
5. This Court finds disturbing facts and inclined to pass observations against the police for registering this kind of FIR. SARFAESI Act, 2002 by way of Section 34 and 35 gives the overriding effect and permitted the financier/bank financial institute to take possession of the immoveable property by which the security interest is created by following the procedure laid down in Section 13 of the Act thereof. If any tenancy right is created prior to the creation of the security interest then the possession of the tenant may be saved provided that it was within the knowledge of financial institution or bank.
Page 3 of 5 Uploaded by MARY VADAKKAN(HC00204) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:38:09 IST 2025NEUTRAL CITATION R/CR.MA/7802/2014 ORDER DATED: 17/09/2025 undefined
6. In the present case there is no whisper of the word indicating that the tenancy right was created prior to the creation of the security interest upon the premises in which the complainant was living. It may be a inter se arrangement between the Anshu Anilkumar Buch-principal borrower and the complainant to avoid the recovery proceedings. Be that as it may. The police officer who has registered the FIR was required to see this issue instead of registering the FIR against the authorised officer of the HDFC Ltd., for the offence under Section 380 and 424 of the IPC. What is also noticeable that the authorised officer went to take the possession of the premises after an order under Section 14 of the SARFAESI Act, 2002 was passed in his favour by the Chief Judicial Magistrate with the help of the police. This Court finds this kind of action of registering the FIR is malafide and needs to be deprecated.
7. Be that as it may. The initiation of the FIR itself is since vexatious and malafide against the petitioners it deserves to be quashed by allowing this petition.
8. The learned Trial Court has also examined the issue in a judgment of a Criminal case No. 38057 of 2014 arising from the self same FIR against the other accused Anshu Anilkumar Buch. In view of above the present petition deserves consideration and is allowed.
Page 4 of 5 Uploaded by MARY VADAKKAN(HC00204) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:38:09 IST 2025NEUTRAL CITATION R/CR.MA/7802/2014 ORDER DATED: 17/09/2025 undefined
9. Resultantly, this petition is Allowed. The impugned FIR bearing C.R No. I -111 of 2014 registered with Gorwa Police Station, Vadodara and all the consequential proceedings arising therefrom qua the petitioners are quashed and set aside. Rule is made absolute.
(J. C. DOSHI,J) MARY VADAKKAN Page 5 of 5 Uploaded by MARY VADAKKAN(HC00204) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:38:09 IST 2025