Bombay High Court
Manindra Chandrasen And Anr vs Union Bank Of India And Ors on 10 March, 2017
Bench: R.M. Borde
1 /38 WP-5252-2015
Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETTION NO.5252 OF 2015
WITH
CIVIL APPLICATION No.3188 of 2015
1 Mahindra Chandrasen, son of Late
Shri.Chandrasen, adult, Indian Inhabitant
having address at flat No.202,
Surya Apartments, 193,Saket Nagar,
Indore 452018.
2 Sharad Chandrasen, son of Late
son of lte Shri. Chandrasen, lso adult,
Indian Inhabitant, having address at 49,
Manishpuri, Indre 452018.
...Petitioners.
vs.
1 Union Bank of India, a body Corporate
constituted under the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970 having
their Head Office at 239, Vidhan Bhavan Marg,
Mumbai 400 021. and having their Branch amngst
and other places at Andheri (East) Bench, Sir P.M.Road,
Andheri (E), Mumbai 400069.
2 Rajat Infrastructure Private Ltd.,
a company incorporated under the
Companies Act 1956 having Registered Office
at 12/2,RNT Marg, Chetak Centre, Indore 452001,
Madhya Pradesh and Mumbai Office at A053,
Road No.1, MIDC Industrial Area, Marol,
Andheri (E), Mumai 400 093.
3 Zoom Developers Private Limited,
company incorporated under the
Companies Act, 1956 having project office
at A-53, Road No.1,MIDC Industrial Area,
Marol, Andheri (East),
Mumbai 400 093.
4 Zoom Vallabh Steel Limited,
also a Company incorporated under the
Companies Act, 1956 having its Project
Office at -53,Road No.1, MIDC
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Industrial Area, Marol, Andheri(E),
Mumbai 400 093.
WITH
CIVIL APPLICATION NO.2088 OF 2016
IN
WRIT PETITION NO.5252 OF 2015
Rajat Infrastructure Private Ltd.,
a company incorporated under the
Companies Act 1956 having Registered Office
at 12/2,RNT Marg, Chetak Centre, Indore 452018,
Madhya Pradesh and Mumbai Office at A-53,
Road No.1,MIDC Industrial Area, Marol,
Andheri (E), Mumai 400 093.
..Applicant (Org.) Respondent No.2
IN THE MATTER BETWEEN
1 Mahindra Chandrasen, son of Late
Shri.Chandrasen, adult, Indian Inhabitant
having address at flat No.202,
Surya Apartments, 193, Saket Nagar,
Indore 452018.
2 Sharad Chandrasen, son of Late
Shri. Chandrasen, also adult,
Indian Inhabitant, having address at 49,
Manishpuri, Indre 452018.
...Petitioners.
VS.
1 Union Bank of India, a body Corporate
constituted under the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970 having
their Head Office at 239, Vidhn Bhavan Marg,
Mumbai 400 021. and having their Branch amongst
and other places at Andheri (East) Brnch, Sir P.M. Road,
Andheri (E), Mumbai 400069.
2 Rajat Infrastructure Private Ltd.,
a company incorporated under the
Companies Act 1956 having Registered Office
at 12/2,RNT Marg, Chetak Centre, Indore 452001,
Madhya Pradesh and Mumbai Office at A053,
Road No.1,MIDC Industrial Area, Marol,
Andheri (E), Mumbai 400 093.
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3 Zoom Developers Private Limited,
company incorporated under the
Companies Act, 1956 having project office
at A-53, Road No.1,MIDC Industrial Area,
Marol, Andheri (East),
Mumbai 400 093.
4 Zoom Vallabh Steel Limited,
also a Company incorporated under the
Companies Act, 1956 having its Project
Office at -53,Road No.1, MIDC
Industrial Area, Marol, Andheri(E),
Mumbai 400 093.
..Respondents.
WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 54 of 2015
Union Bank of India, a body Corporate
constituted under the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970 having
their Head Office at 239, Vidhan Bhavan Marg,
Mumbai 400 021. and having their Branch amongst
and other places at Andheri (East) Branch, Sir P.M. Road,
Andheri (E), Mumbai 400069.
Through Mrs. Sreekala L.K.,
the Assistant General Manager
and the Authorized Officer. ...Petitioner.
Vs.
1 Smt. Nirmala Devi,
wife of late Shri.Chandrasen,
Aged about 88 years, resident of 7,
Manoraaganj, Opposite DIG Bunglow,
A.B.Road, Indore,M.P.
2 Mahindra Chandrasen, son of Late
Shri.Chandrasen, adult, Indian Inhabitant
having address at flat No.202,
Surya Apartments, 193, Saket Nagar,
Indore 452018.
3 Sharad Chandrasen, son of Late
Shri. Chandrasen, also adult,
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4 /38 WP-5252-2015
Indian Inhabitant, having address at 49,
Manishpuri, Indre 452018.
4 Rajat Infrastructure Private Ltd.,
a company incorporated under the
Companies Act 1956 having Registered Office
at 12/2,RNT Marg, Chetak Centre, Indore 452001,
Madhya Pradesh and Mumbai Office at A053,
Road No.1,MIDC Industrial Area, Marol,
Andheri (E), Mumai 400 093.
5 Zoom Developers Private Limited,
company incorporated under the
Companies Act, 1956 having project office
at A-53, Road No.1,MIDC Industrial Area,
Marol,Andheri (East),
Mumbai 400 093.
6 Zoom Vallabh Steel Limited,
also a Company incorporated under the
Companies Act, 1956 having its Project
Office at -53,Road No.1, MIDC
Industrial Area, Marol, Andheri (E),
Mumbai 400 093.
...Respondents.
Mr. Mustafa Doctor, Sr. Advocate along with Mr. Rohit Gupta and Mr.
Vinod Kothari and Pinaz Merchant i/by T.N.Tripathi & Co. and M/s.
Apex Law Partners for the Petitioners in W.P.No.5252/2015 and for
Respondent Nos. 2 and 3 in W.P. No.54/2015 and for Applicants in
CAW No.3188 of 2015.
Mr. Vikram Chaudhari,Sr. Advocate along with Mr. Harshit Seth,
Mr.Rishi Senghal, Ms.Akshata Chavan, Mrs. Shashikant Kadam,
Mr.Satraj Singh Gill, Ms. Pragati Sharma i/byR.Rmesh for Respondent
No.2 inW.P.No.5252/2015 and for Applicant in CAW No.2088 of 2016.
Ms. Rajani Iyer, Sr. Advocate with Mr. Nainesh Amin for Respondent
No.1 in WP No.5252/2015 and for Petitioner in W.P. No.54/2015 and
for Respondent No.1 in Civil Application No.2088/2016 and Civil
Application No.3188/2015.
CORAM : R.M. BORDE AND
A.S. GADKARI, JJ.
DATE : Reserved on 24th January,2017
Pronounced on 10th March, 2017
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JUDGMENT( Per A.S.Gadkari, J.):
1) The petitioners in Writ Petition No.5252 of 2015 have
questioned the correctness of that part of the Judgment and Order of
the Debt Recovery Appellate Tribunal dated 14.10.2014 passed in
Appeal No.206 of 2012 to the extent of setting aside the order dated
7.9.2011 passed by the Debt Recovery Tribunal-III, Mumbai in
Securitization Application No.107 of 2011, thereby denying the
restoration of possession of the suit property and for other
consequential reliefs. The applicant in Civil Application No.2088 of
2016 is respondent No.2 in W.P.No.5252 of 2015 and by the said
application the applicant/respondent No.2 has prayed that, an action
as contemplated under Section 340 of the Code of Civil Procedure
may be initiated against the petitioners in Writ Petition No.5252 of
2015, for the offences under Section 177, 182, 193, 199 and 209 of
the Indian Penal Code. Writ Petition No.54 of 2015 has been filed by
the Bank, who is respondent No.1 in W.P. No.5252 of 2015,praying for
an appropriate writ, order or directions to quash and set aside and to
expunge that part of the impugned orders dated 7.9.2012 and
14.10.2014 passed by the Debt Recovery Tribunal-III, Mumbai and
Debt Recovery Appellate Tribunal, Mumbai, respectively, holding that
the petitioner bank had taken forcible possession of the secured
assets and for quashing the findings and remarks made in Para Nos.
10 and 11 of the Judgment and Order dated 14.10.2014 passed by
the Debt Recovery Appellate Tribunal, Mumbai.
6 /38 WP-5252-2015
2) Heard the learned counsel for the respective parties at
length and also perused the entire record made available before us
minutely and in pursuance of the directions issued by the Hon'ble
Supreme Court of India dated 29.8.2016 in Special Leave to Appeal
No.8484 of 2016, the petitions are taken up for final hearing.
3) For the sake of brevity, hereinafter, the property in
question will be termed as "Suit property; the petitioners in Writ
Petition No.5252 of 2015 will be termed as "Lessees"; the respondent
No.1 in Writ Petition No.5252 of 2015 and petitioners in Writ Petition
No.54 of 2015 will be termed as "Bank"; the respondent No.2 in Writ
Petition No.5252 of 2015 and applicant in Civil Application No.2088 of
2016 and respondent No.4 in Writ Petition No.54 of 2015 will be
termed as "Respondent No.2-Rajat Infrastructure"and the respondent
Nos. 3 and 4 in Writ Petition No.5252 of 2015 and respondent Nos. 5
and 6 in Writ Petition No.54 of 2016 will be termed as "Respondent
No.3 and 4 borrowers" in the following paragraphs.
4) The facts which can be enumerated from the record and
are necessary to decide the present petition, can briefly be stated as
under:-
a) The State of Holkar (Maharaja Shri. Holkar) granted an
Inami land admeasuring 2.18 acres equivalent to 10,464 sq. yards,
situated at 7, Manoramaganj, Indore, Madhya Pradesh ( the suit
property) in the year 1910 to Shri.Suryanarayanji Shastri Dravid. On
13.11.1920 Shri. Suryanaraynji Dravid leased out the said property
7 /38 WP-5252-2015
to Shri. Amolakchand Ajmera. That, on 13.1.1934 Shri. Amolakchand
Ajmera transferred the lease in favour of Shri. Ayodhya Prasad
Bhargav. By a registered deed dated 2.9.1939 Shri. Ayodhya Prasad
Bhargav transferred his lease hold interest in the suit property in
favour of Shri. Swayambar Lal for the residuary period which will be
expiring on 1.9.2019. After acquiring the aforesaid property Shri.
Swayambar Lal constructed bunglows and houses on the suit
property. There are eight tenants in the said property occupying
different houses and service quarters. The bungalows situated at the
suit property were in actual physical possession and use of the
petitioners. That, the property has ever since been in physical
possession of the family members of Shri. Syamambar Lal till they
were dispossessed from the suit property as stated herein below.
After the death of Shri. Swayambar Lal, the leased hold rights of the
suit property devolved on Smt. Nirmaladevi and the petitioners
therein.
b) That by diverse sale deeds dated 24.10.1988, the Drvaid
family sold its reversionary rights in the said property to respondent
No.2. The sale deed dated 24.10.1988 expressly refers to the lease
hold rights and the possession of the petitioners in the suit property,
It further recites that, cost of improvement to the suit property being
borne by the lessee. On 14.10.1994, the respondent No.2 approached
the petitioners for development of the suit property and a
Memorandum of Understanding was executed between the parties.
8 /38 WP-5252-2015
The Memorandum of Understanding reiterates and confirmed that,
the petitioners are occupying the suit property as lessees and will
continue to remain in possession. That, the respondent No.2 will have
no right to possession. It was further clearly agreed that Part A of the
constructed premises will be handed over to the petitioners and only
thereafter the petitioners will hand over the possession of the
bunglow which they were occupying, to respondent No.2. It was also
agreed that in the event of delay in construction, respondent No.2 will
pay the compensation to the petitioners.
c) That, on 15.4.2005, the respondent No.2 mortgaged its
interest in the suit property to respondent No.1 Bank to secure
certain credit facilities which were granted to respondents No. 3 and
4. The petitioners are neither parties nor they were having any privy
to the said mortgage. The leasehold rights of the petitioners are not
the subject matter of the alleged mortgage.
d) As the respondent Nos. 3 and 4/borrowers, failed to repay
the financial assistance provided to them by respondent No.1, on
25.10.2010 and 11.11.2010, respondent No.1 issued notices to
respondent Nos. 3 and 4 under Section 13(2) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act,2002 (for short, the SARFAESI Act). The record reveals
that respondent No.1 did not issue or serve any notice under the
SARFASI Act, to the petitioners, simultaneously with respondent Nos.
3 & 4.
9 /38 WP-5252-2015
e) That, on 12.2.2011, the respondent No.1 Bank addressed
a letter as contemplated u/s. 13(2) of the SARFAESI Act, to the
petitioners calling upon them to deliver the possession of the suit
property. The said demand was made on the basis of a letter dated
1.4.2005 purportedly signed by the petitioners and their mother
Smt. Nirmaladevi consenting to the alleged mortgage for the dues of
respondent Nos. 2 and 3 and to deliver the possession of the suit
property.
f) The petitioners immediately replied the said letter dated
12.2.2011 by their reply dated 18.2.2011 and denied having
executed or signed the alleged letter dated 1.4.2005 and informed
the bank, that the said letter is a forged, false and fabricated
document. The petitioners also lodged their protest from delivering
the possession of the said property to respondent No.1-bank.
g) The petitioners obtained a report from the handwriting
exert on 22.2.2011 and thereafter on 26.2.2011 lodged a written
complaint with the Palasia Police Station, Indore, Madhya Pradesh in
respect of the alleged forged and false document dated 1.4.2005
and requested the concerned police to investigate the matter. The
record further reveals that the petitioners also lodged a complaint
with the Superintendent of Police, Indore about their signatures
being forged in the purported letter dated 1.4.2005.
h) That, on 6.4.2011 the bank officers along with recovery
agents and police personnel/Home guards, came to the suit property
10 /38 WP-5252-2015
and dispossessed the petitioners from their residential premises
without their consent. It is the case of respondent No.1 bank that, in
furtherance of letter dated 1.4.2005 the petitioners and their mother
Smt. Nirmaladevi handed over the vacant and peaceful possession of
the suit property to the Officers of respondent No.1 bank and a
detailed panchanama to that effect dated 6.4.2011 has also been
drawn.
i) That, the petitioners after taking appropriate legal advise
from their Advocate at Jabalpur filed Securitization Application No.107
of 2011 before the Debt Recovery Tribunal-III, Mumbai on 12.4.2011
praying for quashing and setting aside the demand notices dated
25.10.2010 and 11.11.2010 under Section 13(2) of the SARFAESI Act
and the measures for taking physical possession of the suit property
on 6.4.2011 under Section 13(4) of the SARFAESI Act and also
prayed for restoration of the possession of the suit property. The
petitioners also prayed for compensation for the illegal act of the
bank and for other consequential reliefs. The respondent No.1 bank
filed its reply dated 5.5.2011 to the said S.A.No.107 of 2011 and
opposed for grant of any reliefs. The respondent Nos. 2,3 and 4 also
filed their reply on 10.5.2011 and opposed the said application of the
petitioners.
j) It appears from the record that on the basis of the
complaint lodged by the petitioners with Palasia Police Station,Crime
NO.499/2011 came to be registered. It further appears from the
11 /38 WP-5252-2015
record that on the basis of the complaint lodged by respondent No.1
bank, CBI also initiated investigation and the crime registered with
Palasia Police Station was also taken over by CBI for investigation.
That, the pre-arrest bail applications for the offence under Sections
420, 467, 468,471 and 120B of the I.P.C. preferred by Vijay
Choudhary, Biharilal B.Kejriwal and Mrs. Manjiri Vijay Choudhary-the
Directors of respondent Nos. 2 to 4 came to be rejected by the High
Court of Madhya Pradesh, Bench at Indore, by its order dated
17.11.2011, on the ground that, prima facie case is made out against
the said applicants and looking to the seriousness of the offence and
their involvement in the crime. It is also observed by the Madhya
Pradesh High Court, that the said applicants adopted a novel method
to dispossess the lessees by preparing the false and fabricated letter.
k) The petitioners filed W.P.No.3392/2012 in this Court for
expediting the hearing of S.A.No.107 of 2011 which was pending on
the file of Debt Recovery Tribunal-III, Mumbai. This Court by its order
dated 30.4.2012 directed the Debt Recovery Tribunal to hear and
decide the application of the petitioners expeditiously.
l) The Debt Recovery Tribunal-III, Mumbai by its judgment
and order dated 7.9.2012 partly allowed the said S.A.No.107 of 2011,
with directions to the bank to restore the possession of the suit
property to the petitioners. The Debt Recovery Tribunal while allowing
the said application has held that respondent No.2 has recognized
the petitioners as lessees and the claim of the petitioners that they
12 /38 WP-5252-2015
were in possession and enjoyment of the property as lessees was
approved by them. That, the petitioners being lessees cannot be
thrown out of the premises unceremoniously, without due process of
law. It has further held that the bank has taken physical possession of
the property forcibly and the petitioners being lessees in possession
of the property were entitled for restoration of possession.
m) The respondent bank, feeling aggrieved by the Judgment
and order dated 7.9.2012 passed by the DRT-III, preferred an Appeal
No.206/2012 before the Debt Recovery Appellate Tribunal (DRAT),
Mumbai. The DRAT by its judgment and order dated 14.10.2014 was
pleased to dispose of the said appeal by holding that, in view of the
Judgment of the Supreme Court in the case of Harshad Goverdhan
Sondagar vs. International Assets Reconstruction Co. Ltd. and ors.
reported in (2014) 6 S.C.C. 1 the possession cannot be handed over
to the tenant/licensee and therefore, that part of the order passed by
the DRT directing restoration of possession is set aside. The DRAT has
categorically held that any how the forcible possession has been
taken on 6.4.2011 and therefore, in view of Section 29 of the
SARFAESI Act the petitioners may file application before the
Competent Authority not below the rank of Chief Judicial Magistrate
for violation of the provisions of the said Act. The DRAT has further
issued certain directions in Para 11 of the said Judgment and Order
dated 14.10.2014.
n) The record further reveals that Smt. Nirmaladevi, original
13 /38 WP-5252-2015
applicant No.1 before the DRT and the mother of the petitioners
herein expired on 5.2.2014 leaving behind petitioners as the legal
heirs. The petitioners filed the present petition on 16.3.2015.The
present petition is admitted by this Court on 17.12.2015 however, no
interim relief was granted.
o) The order dated 17.12.2015 passed by this Court,
refusing to grant interim relief was challenged by the petitioners
before the Supreme Court. The Hon'ble Supreme Court by its order
dated 29.8.2016 directed this Court to hear and decide the present
petition as expeditiously as possible.
5) Shri. Doctor, the learned Senior Counsel appearing for
the petitioners submitted that after receipt of notice under Section
13(2) of the SARFAESI Act dated 12.12.2011 which was accompanied
with the letter dated 1.4.2005, alleged to have been signed by the
petitioners and Smt. Nirmaladevi, by which they had consented to the
alleged mortgage and to deliver the possession of the suit property,
the petitioners immediately replied the same by their letter dated
18.2.2011 and protested from taking possession and/or any steps to
take possession of the suit property. He submitted that after receipt
of the report of the hand writing export, the petitioners lodged
complaint with the Palasia Police Station, for forging and fabricating
the said letter dated 1.4.2005 which is the main document in
question in the present matter. He submitted that once the
petitioners lodged their protest in writing from handing over the
14 /38 WP-5252-2015
possession to respondent No.1 bank by their letter dated 18.2.2011,
it was necessary and incumbent on the part of the respondent Bank
to take recourse to obtain an order under Section 14 of the SARFAESI
Act from the Chief Judicial Magistrate or the District Magistrate before
taking possession of the suit property. He submitted that assuming
for the sake of argument that letter dated 1.4.2005 allegedly signed
by the petitioners and Smt. Nirmaladevi is a genuine letter, then also
in view of the protest lodged by the petitioners by their letter dated
18.2.2011 the respondent bank, before taking any measures under
Section 13(4) of the Act ought to have obtained an order under
Section 14 of the said Act. He submitted that as a matter of fact the
bank has not lawfully adopted any of the measures as contemplated
under Section 13(4) and 14 of the Act and on 6.4.2011 the officers of
the bank along with recovery agents and police personnel physically
barged into the premises of the petitioners and evicted them forcibly.
He submitted that when the petitioners filed S.A. No.107/2011 on
12.4.2001 the decision in the case of Harshad Goverdhan
Sondagar vs. International Assets Reconstruction Company
Ltd. and ors reported in (2014) 6 SCC 1 which was decided on
3.4.2014 was not in the field and therefore, their application before
the DRT-III Mumbai under Section 17 of the SARFAESI Act was
maintainable, as the DRT according to him was having jurisdiction to
adjudicate upon the same. He further submitted that the DRT has
rightly applied the ratio of the judgment in the case of Clarity Gold
15 /38 WP-5252-2015
Pvt. Ltd. Vs. State Bank of India reported in 2011(2)
Maharashtra Law Journal 778 and had directed to restore the
possession of the premises. He submitted that the amended
provisions of Section 17(3) of the SARFESI Act have came into effect
from 1.9.2016 and it has retrospective effect in applicability. He
submitted that where a law is enacted for the benefit of a community
as a whole, even in the absence of a provision, the statute may be
held to be retrospective in nature. He submitted that a class of
tenants or lessees has been given benefit by the said amended
provision and therefore, the said provision has retrospective effect in
its applicability. In support of his contention he relied on the decision
of the Supreme Court in the case of Commissioner of Income Tax
(Central-I) New Delhi vs. Vatika Township Private Ltd.
reported in (2015) (1) SCC 1. He submitted that there is no
evidence on record except the oral submissions made by the
respondent bank on affidavit that the possession of the said property
was voluntarily handed over by the petitioners to the respondent
bank. He further submitted that the respondent bank never raised
any objection during the course of the hearing in S.A. No.107 of 2011
before the DRT about its jurisdiction in deciding the application filed
by the petitioners and even such a plea was not raised before the
Appellate Tribunal in an appeal filed by the bank. He submitted that
after taking into consideration the facts of the present case, this
Court in exercise of its jurisdiction under Article 226 and 227 of the
16 /38 WP-5252-2015
Constitution of India may direct the respondent bank to restore the
possession of the suit property to the petitioners. He lastly prayed
that the present petition may be allowed and the petition filed by the
bank and the civil application preferred by respondent No.2 may be
dismissed.
6) Smt. Rajani Iyer, the learned Senior Counsel appearing for
the respondent No.1 Bank, at the outset submitted that on 12.4.2011
when the petitioners presented S.A. No.107/2011 and on 7.9.2012
when the DRT-III, Mumbai decided it, in view of the unamended
Section 17(3) of the SARFAESI Act, the DRT was not having jurisdiction
to entertain and decide the same. She submitted that the remedy,
then was available to the petitioners, to approach this Court under
Article 226 and 227 of the Constitution of India. She submitted that
the Supreme Court in the case of Harshad Sondagar (supra) has
reiterated the said position of law and therefore, while deciding the
Appeal No.206/2012 the Appellate Tribunal (DRAT) has correctly taken
into consideration the said vital aspect of the matter. She submitted
that the amendment to Section 17(3) of the SARFAESI Act has came
into effect from 1.9.2016 and by way of said amendment the tenants
or lessees have been permitted to approach the DRT for deciding
their claim of tenancy. She further submitted that the contention of
the learned counsel for the petitioners that amended Section 17(3) of
the SARFAESI Act has retrospective application is misplaced, as
legislature in its wisdom has not specifically stated about its
17 /38 WP-5252-2015
retrospective applicability and therefore, it is only prospective in
application. She submitted that the respondent bank granted financial
assistance to respondent Nos.3 and 4 which was subsequently
renewed and extended to higher financial limits. That respondent
No.2-Rajat Infrastructure is the mortgagor and one of the corporate
guarantor to the borrowers i.e. respondent Nos.3 and 4. That,
respondent No.2 created mortgage of the suit property by depositing
documents of title deeds with intent to secure facilities granted to
respondent Nos.3 and 4. She submitted that, along with other
documents respondent Nos.2 to 4 submitted a letter dated 1.4.2005
which was a letter of consent executed by the petitioners and their
mother late Smt. Nirmaladevi consenting to creation of mortgage and
giving undertaking to quit peaceful and vacant possession of the suit
property, as and when demanded, by the bank. That, the said letter
was also notorized on 2.4.2005. She submitted that as respondent
Nos.3 and 4 committed default in repayment of the loan, the
respondent bank addressed a letter dated 12.2.2011 under Section
13(2) of the SARFAESI Act and called upon the petitioners to deliver
the possession of the said property. That, the said demand was made
on the strength of the letter dated 1.4.2005 signed by the petitioners
and Smt. Nirmaladevi. The learned Senior counsel however has fairly
admitted the fact that after receipt of the letter dated 12.2.2011 by a
letter dated 18.2.2011 the petitioners disputed and denied having
executed or signed the letter dated 1.4.2005 and lodged their protest
18 /38 WP-5252-2015
from handing over the possession. She further submitted that, on
6.4.2011, when the respondent bank's officers along with other
persons went to the said property the petitioners voluntarily handed
over the possession of the suit property in favour of the bank. That
the respondent bank had sought for police protection only by way of
abandont caution and to avoid any untoward incident which might
take place at the last moment. She submitted that after taking
possession of the said property the respondent-bank has given notice
to the petitioners for the same. That as the petitioners had handed
over the possession voluntarily there is no question of taking forcible
possession of the suit property. She submitted that the respondent
bank through out since inception till today has maintained a stand
that, it did not take forcible possession of the suit property and the
said fact can be discerned from the various pleadings of the bank.
She further submitted that while taking possession of the suit
property the bank has effected a detailed panchanama dated
6.4.2011 in presence of the police personnel and the said police
personnel have signed the same. She submitted that as the
petitioners had executed a letter dated 1.4.2005 for handing over the
possession in favour of the bank and have consented to creation of
mortgage and undertook to handover peaceful and vacant possession
of the suit property to the bank, it was not necessary for the bank to
obtain an order under Section 14 of the SARFAESI Act. She submitted
that in view of the ratio laid down by the Division Bench of this Court
19 /38 WP-5252-2015
in the case of Clarity Gold Pvt. Ltd. Vs. State Bank of India
reported in 2011(2) Mah. L.J. Page 778 when the borrower
handed over the possession of the said property voluntarily to the
secured creditor in pursuance of the notice under Section 13(2) of the
SARFAESI Act, it would be open to the secured creditor to take
possession and in view of the facts mentioned herein above, it was
not at all necessary for the bank to invoke Section 14 of the SARFAESI
Act. She further submitted that the DRAT being the Appellate Court
and the last fact finding Court, did not scrutinize the documents and
no fact finding exercise was carried out by the Appellate Tribunal. She
lastly submitted that the observations and/or the directions issued by
the Appellate Tribunal in the impugned Judgment and Order dated
14.10.2014, particularly in para No.11 be quashed and set aside as
those are against the settled canons of law. She therefore, prayed
that the petition preferred by the bank may be allowed and the
petition preferred by the petitioners be dismissed.
7) Mr. Choudhary, the learned Senior Counsel appearing for
respondent No.2-Rajat Infrastructure opposed for grant of any relief in
favour of the petitioners.. He submitted that respondent No.2-Rajat
Infrastructure has filed Civil Application No.2088/2016 for initiating
proceedings under Section 340 of the Code of Criminal Procedure
and/or other enabling provisions against the petitioners in W.P.
No.5252/2015 as they have indulged in alleged offence as
contemplated under Section 177, 182, 193, 199 and 209 of the Indian
20 /38 WP-5252-2015
Penal Code as well as other cogent offences. He submitted that
consent letter dated 1.4.2005 which is annexed at Exh.D (Page 75) to
the present application is the letter alleged to be a forged consent
letter which is annexed in the charge sheet filed by the CBI at Indore.
He submitted that Page 76 to the present application and Page 80 to
the Writ Petition No.5252/2015 are the consent letters dated 1.4.2005
which for the first time has surfaced on record in the petition filed by
the petitioners and in the letter dated 1.4.2005 annexed at Page 80 to
the petition (Page 76 to the application), the signature of Shri S.K.
Kabra is absent. He submitted that the petitioners have either hexed
out the said signature or tampered with the alleged document seized
by the CBI and have annexed a forged document to the petition at
Page 80. He submitted that this Court may therefore invoke its
jurisdiction under Section 340 of the Cr. P.C. and initiate an inquiry
into the matter. He submitted that the allegation, that the respondent
No.2-Rajat Infrastructure has created and/or manufactured the said
consent letter dated 1.4.2005 is false and baseless. He therefore,
prayed that the said application may be allowed.
8) At this stage, we may note here that, we deem it proper,
not to deal with the contention of the learned counsel for the
petitioners, that the amendment to Section 17(3) of the SARFAESI Act
which has come into effect from 1.9.2016 has retrospective effect in
its application, need not be considered, in view of the peculiar facts
and circumstances of the present case and we leave that issue to be
21 /38 WP-5252-2015
decided in an appropriate case.
In view of the ratio laid down by the Supreme Court in the
case of Harshad Sondagar (supra) and in view of Section 17 which
was prevailing prior to the amendment of 1.9.2016, the DRT was
having power to restore the possession of the secured assets for and
in favour of the borrower but it could not restore the possession of
the secured assets to the lessee.
9) The supreme Court in the case of Harshad G. Sondagar
(supra) in para Nos.28, 29 and 32 has held as under:
"28. A reading of sub-rules (1) and (2) of Rule 8 of the
security Interest (Enforcement) Rules, 2002 would
show that the possession notice will have to be
affixed on the outer door or at the conspicuous place
of the property and also published, as soon as
possible but in any case later than seven days from
the date of taking possession, in two leading
newspapers, one in vernacular language having
sufficient circulation in that locality, by the authorized
officer. At this stage, the lessee of an immovable
property will have notice of the secured creditor
making efforts to take possession of the secured
assets of the borrower. When, therefore, a lessee
becomes aware of the possession being taken by the
secured creditor, in respect of the secured asset in
respect of which he is the lessee, from the possession
notice which is delivered, affixed or published in sub-
rule (1) and sub-rule (2) of Rule 8 of the Security
Interest (Enforcement) Rules, 2002, he may either
surrender possession or resist the attempt of the
22 /38 WP-5252-2015
secured creditor to take the possession of the secured
asset by producing before the authorized officer proof
that he was inducted as a lessee prior to the creation
of the mortgage or that he was a lessee under the
mortgagor in accordance with the provisions of
Section 65-A of the Transfer of Property Act and that
the lease does not stand determined in accordance
with Section 111 of the Transfer of Property Act. If the
lessee surrenders possession, the lease even if valid
gets determined in accordance with clause (f) of
Section 111 of the Transfer of Property Act, but if he
resists the attempt of the secured creditor to take
possession, the authorized officer cannot evict the
lessee by force but has to file an application before
the Chief Metropolitan Magistrate or the District
Magistrate under Section 14 of the SARFAESI Act and
state in the affidavit accompanying the application,
the name and address of the person claiming to be
the lessee. When such an application is filed, the
Chief Metropolitan Magistrate or the District
Magistrate will have to give a notice and give an
opportunity of hearing to the person claiming to be
the lessee as well as to the secured creditor,
consistent with the principles of natural justice, and
then take a decision. If the Chief Metropolitan
Magistrate or District Magistrate is satisfied that there
is a valid lease created before the mortgage or there
is a valid lease created after the mortgage in
accordance with the requirements of Section 65-A of
the Transfer of Property Act and that the lease has not
been determined in accordance with the provisions of
Section 111 of the Transfer of Property Act, he cannot
23 /38 WP-5252-2015
pass an order for delivering possession of the secured
asset to the secured creditor. But in case he comes to
the conclusion that there is in fact no valid lease
made either before creation of the mortgage or after
creation of the mortgage satisfying the requirements
of Section 65-A of the Transfer of Property Act or that
even though there was a valid lease, the lease stands
determined in accordance with Section 111 of the
Transfer of Property Act, he can pass an order for
delivering possession of the secured asset to the
secured creditor.
29] Sub-section (3) of Section 14 of the SARFAESI Act
provides that no act of the Chief Metropolitan
Magistrate or the District Magistrate or any officer
authorized by the Chief Metropolitan Magistrate or
District Magistrate done in pursuance of Section 14
shall be called in question in any court or before any
authority. The SARFAESI Act, therefore, attaches
finality to the decision of the Chief Metropolitan
Magistrate or the District Magistrate and this decision
cannot be challenged before any court or any
authority. But this Court has repeatedly held that
statutory provisions attaching finality to the decision
of an authority excluding the power of any other
authority or Court to examine such a decision will not
be a bar for the High Court or this Court to exercise
jurisdiction vested by the Constitution because a
statutory provision cannot take away a power vested
by the Constitution. To quote, the observations of this
Court in Columbia Sportswear Co. vs. Director of
Income Tax, 12: (SCC P 234, Para 17):
24 /38 WP-5252-2015
"17. Considering the settled position of law that
the powers of this Court under Article 136 of the
Constitution and the powers of the High Court
under Articles 226 and 227 of the Constitution
could not be affected by the provisions made in a
statute by the Legislature making the decision of
the tribunal final or conclusive, we hold that sub-
section (1) of Section 245-S of the Act, insofar as,
it makes the advance ruling of the Authority
binding on the applicant, in respect of the
transaction and on the Commissioner and Income-
Tax Authorities subordinate to him, does not bar
the jurisdiction of this Court under Article 136 of
the Constitution or the jurisdiction of the High
Court under Articles 226 and 227 of the
Constitution to entertain a challenge to the
advance ruling of the Authority."
In our view, therefore, the decision of the Chief
Metropolitan Magistrate or the District Magistrate
can be challenged before the High Court under
Articles 226 and 227 of the Constitution by any
aggrieved party and if such a challenge is made,
the High Court can examine the decision of the
Chief Metropolitan Magistrate or the District
Magistrate, as the case may be, in accordance
with the settled principles of law.
32. When we read sub-section (1) of Section 17 of the
SARFAESI Act, we find that under the said sub-section
"any person (including borrower)", aggrieved by any of
the measures referred to in sub-section (4) of Section 13
taken by the secured creditor or his authorised officer
25 /38 WP-5252-2015
under the Chapter, may apply to the Debts Recovery
Tribunal having jurisdiction in the matter within 45 days
from the date on which such measures had been taken.
We agree with the Mr. Vikas Singh that the words 'any
person' are wide enough to include a lessee also. It is also
possible to take a view that within 45 days from the date
on which a possession notice is delivered or affixed or
published under sub-rules (1) and (2) of Rule 8 of the
Security Interest (Enforcement) Rules, 2002, a lessee may
file an application before the Debts Recovery Tribunal
having jurisdiction in the matter for restoration of
possession in case he is dispossessed of the secured
asset. But when we read subsection (3) of Section 17 of
the SARFAESI Act, we find that the Debts Recovery
Tribunal has powers to restore possession of the secured
asset to the borrower only and not to any person such as
a lessee. Hence, even if the Debt Recovery Tribunal
comes to the conclusion that any of the measures
referred to in sub-section (4) of Section 13 taken by the
secured creditor are not in accordance with the provisions
of the Act, it cannot restore possession of the secured
asset to the lessee. Where, therefore, the Debts Recovery
Tribunal considers the application of the lessee and
comes to the conclusion that the lease in favour of the
lessee was made prior to the creation of mortgage or the
lease though made after the creation of mortgage is in
accordance with the requirements of Section 65-A of the
Transfer of Property Act and the lease was valid and
binding on the mortgagee and the lease is yet to be
determined, the Debts Recovery Tribunal will not have the
power to restore possession of the secured asset to the
lessee. In our considered opinion, therefore, there is no
26 /38 WP-5252-2015
remedy available under Section 17 of the SARFAESI Act to
the lessee to protect his lawful possession under a valid
lease."
The Division Bench of this Court in the case of Clarity
Gold Pvt. Ltd vs. State Bank of India reported in 2011 (2)
Mah. L.J. Page 778 in Para 19 has held as under:
"19. The Tribunal came to the conclusion that the Bank
had taken forcible possession of the property without
seeking recourse to an order of the Chief Metropolitan
Magistrate under Section 14. Now, under Section 14,
where the possession of any secured asset is required to
be taken by the secured creditor, the secured creditor may
make request in writing to the Chief Metropolitan
Magistrate or the District Magistrate concerned to take
possession. Thereupon, the Chief Metropolitan Magistrate
or the District Magistrate is empowered to take possession
of the asset and documents relating thereto and to forward
them to the secured creditor. Under sub-section (2) the
Chief Metropolitan Magistrate or the District Magistrate
may take or cause to be taken such steps and use or cause
to be used such force as may in his opinion be necessary.
Section 14 of the Act is an enabling provision under which
the secured creditor is empowered to seek recourse to the
Chief Metropolitan Magistrate or, as the case may be, the
District Magistrate for the purpose of taking possession.
Though Section 14 is an enabling provision, it will be
wholly impermissible for a secured creditor, despite the
provisions of Section 14, to take the law into his own
hands and to forcibly evict a borrower from the secured
27 /38 WP-5252-2015
asset. Our legal system is governed by the rule of law. If
the borrower hands over possession voluntarily to the
secured creditor in pursuance of a notice under Section
13(4), it would be open to the secured creditor to take
possession. But, if possession is not voluntarily handed
over, the secured creditor cannot take the law into his own
hands and secure vacant possession by taking recourse to
the police machinery. In such an event, the only remedy
that is available is to seek an appropriate order from the
Chief Metropolitan Magistrate, or as the case may be, the
District Magistrate. Parliament has specifically authorised
in sub-section (2) those authorities to take or cause to be
taken such steps and use or caused to be used such force
as may be necessary. Authorisation of the use of force for
taking possession is therefore a matter which lies in the
jurisdiction and power of the authorities prescribed by
Section 14. No secured creditor can by seeking assistance
of police machinery unilaterally carry out the eviction of
the borrower and take over forcible possession of the
secured asset.
10) There cannot be any second opinion about the principles
enunciated by the Hon'ble Supreme Court in the case of Harshad G.
Sondagar (supra) and in view of the same prior to the amendment to
Section 17(3) of the SARFAESI Act which came into effect from
1.9.2016, the Debt Recovery Tribunal was not having power to
restore the possession of the secured asset to the lessees.
11) Irrespective of the fact that the DRT on 12.4.2011
entertained the SA No.107/2011 filed by the petitioners and decided
it on 7.9.2012, in view of the peculiar facts and circumstances of the
28 /38 WP-5252-2015
present case, while exercising our jurisdiction under Articles 226 and
227 of the Constitution of India, we have independently scrutinized
and assessed the entire material/evidence which is in the form of
documents and statements of the witnesses available on record.
12) It is an admitted position, as per the record that, the
petitioners are the lessees in the suit property. As stated earlier, by a
registered deed dated 2.9.1939 Shri. Ayodhya Prasad Bhargav
transferred his lease hold interest in the suit property in favor of
Swayambar Lal for the residuary period which will be expiring on
1.9.2019. By diverse sale deeds dated 24.10.1988, the Dravid family
sold its reversionary rights in the said property to respondent No.2-
Rajat Infrastructure. The sale deed dated 24.10.1988 clearly refers to
the lease hold rights and the possession of the petitioners in the suit
property. The record further reveals that by an inter office letter
dated 19.4.2005 the respondent No.1 Bank has admitted the said
fact and it is mentioned that the lessees are in possession of the
property and they should give consent to vacate the premises of the
suit property as and when called upon by the bank. It is pertinent to
note here that, in the said letter, there is no reference at all of the
purported letter dated 1.4.2005 allegedly issued by the petitioners,
thereby, giving their consent in creating equitable mortgage of the
suit property for the credit facilities to be granted to respondent No.3
and further recording their consent to give possession of the suit
property as and when the same will be demanded by the bank. In
29 /38 WP-5252-2015
this background, the bank had issued a notice as contemplated
under Section 13(2) of the SARFAESI Act dated 12.2.2011 to the
petitioners which was received by them on 17.2.2011 requesting
them to deliver the vacant possession of the suit property on
23.2.2011 to the authorized officer of the respondent-bank. The
letter dated 1.4.2005 was annexed to the said letter dated
12.2.2011. It is to be noted here that immediately after receipt of
the said letter dated 12.2.2011, the petitioners replied the same by
their letter dated 18.2.2011 and resisted the act of secured creditor-
bank of taking possession of the suit property. The fact that the
petitioners were in possession of th suit property by way of
registered lease deed has been specifically mentioned therein. It is
categorically stated that in such set of circumstances the question of
handing over of possession of the suit property did not arise at all. It
is also stated that signatures on the said document are forged one. It
is thus, clear that, after receipt of the notice under Section 13(2)of
the SARFAESI Act dated 12.2.2011, the petitioners had lodged their
protest with respondent No.1-Bank and resisted the act of the
secured creditor of taking possession. It was therefore, incumbent
and mandatory on the part of the respondent bank to approach the
concerned Magistrate under Section 14 of the Act before taking the
physical possession of the suit property. The respondent-Bank has
utterly failed to comply with the mandatory requirements of the
SARFAESI Act. The bank under the guise of purported consent letter
30 /38 WP-5252-2015
dated 1.4.2005 even after receipt of reply letter dated 18.2.2011 by
the petitioners, to their notice dated 12.2.2011, without obtaining
necessary orders from the concerned Magistrate under Section 14 of
the Act has taken the possession of the suit property. The record
further reveals that, prior to taking physical possession of the suit
property the symbolic possession of the same has not been taken by
the bank.
13) This leads us to deal with the letter dated 1.4.2015
(document in dispute in the present petition) purportedly issued by
the petitioners. It is the consistant stand of the respondent bank that
the said letter dated 1.4.2005 was handed over to it by respondent
No.2 while creating equitable mortgage for securing financial
assistance for and in favour of respondent Nos. 3 and 4. It is to be
noted here that inter office letter dated 19.4.2005 issued by the Dy.
General Manager of the respondent bank clearly mentions that the
lessees have no interest in the loan sanctioned to M/s. Zoom
Developers Private Limited-respondent No.3 and they should give
consent to vacate the premises as and when called upon by the bank.
That, the undertaking should be confirmed by the bank and it should
be notarized. It thus makes clear that on 19.4.2005 the alleged letter
dated 1.4.2005 was not in existence and was not submitted by
respondent Nos. 2 to 4 to the bank while processing the loan. It
therefore clearly appears that the said letter dated 1.4.2005 came on
record/existence after 19.4.2005. It further appears to us that the
31 /38 WP-5252-2015
respondent bank after accepting the documents from respondent
Nos. 3 and 4 and after receipt of the said purported letter dated
1.4.2005 has bona-fide granted the financial credit facility for and in
favour of respondent Nos. 3 and 4.
14) It is further to be noted here that the lease of the suit
property which is in favour of the petitioners will came to an end on
1.9.2019 and therefore, the petitioners giving consent for vacating
the suit premises prior to its expiry in favour of respondent Nos. 2 to
4 on 1.4.2005, according to us does not arise. It is improbable that
the petitioners would voluntarily relinquish and/or surrender their
valuable rights in the year 2005 i.e. approximately 14 years prior to
the expiry of the lease period in favour of respondent No.2. The
record reveals that the petitioners after receipt of the notice dated
12.11.2011 which was accompanied by letter dated 1.4.2005 sent
the said letter dated 1.4.2005 to the State Examiner of Questioned
Documents, Bhopal for expert opinion on the point as to whether the
said letter was signed by them or was a forged one and the State
Examiner of Questioned Documents Bhopal vide its report dated
13.10.2011 has confirmed that the said document is forged one and
does not contain signatures of the petitioners and their mother. The
CBI while submitting the charge sheet in respect of the crime
registered with it at the instance of respondent No.1 bank in crime
bearing No.RC/BD-1/2014-E-0008 of CBI BS and FC, New Delhi 2833,
while narrating the brief facts of the case, has in Para 10 mentioned
32 /38 WP-5252-2015
about the said fact. It is to be noted here that after lodgment of the
first information report with Palasia Police Station bearing CR
No.499/2011 for the offence punishable under Section 420, 460, 468,
471 and Section 120B of the I.P.C. the accused persons therein
namely Vijay Choudhary, Sharad T. Kabra. Biharilal Kejriwal and Smt.
Manjiri wife of Vijay Choudhary preferred pre-arrest bail applications.
The High Court of Madhya Pradesh Bench at Indore while rejecting
the said applications in its order dated 17.11.2011 has held that, as
per the report of the hand writing expert, consent letter was never
signed by the complainant/objector. That the applicants therein are
the authors of the situation. The allegations against them that they
prepared forged and fabricated three letters of consent dated
1.4.2005 and on the basis of the said letter they obtained loan from
the bank and due to their said conduct lessees were dispossessed
from the property in question. The High Court has further held that
the applicants therein have adopted novel method to disposses the
lessees by preparing a forged and fabricated consent letter. It is
important to note here that the CBI in their memo of charge sheet
has categorically stated that the original letter dated 1.4.2005
purported to have been written by Smt. Nirmaladevi, Shri. Mahaindra
Chandrasen and Shri. Sharad Chanrdasen was seized under seizure
panchanama dated 26.8.2011 from Shri. Sharma then Branch
Manager of Union Bank of India, Andheri (E), Branch, Mumbai.
15) There is another facet of the letter dated 1.4.2005. That
33 /38 WP-5252-2015
the said letter has a seal of Notary affixed on it dated 2.4.2011.The
petitioners have since the date of receipt of the said letter dated
1.4.2005 on 17.2.2011 have disputed their signatures on it and the
said fact has been prima facie established by the report of the
handwriting expert and in such circumstances, the alleged seal of
notary put on the said letter dated 1.4.2005 creates doubt in the
mind of this Court about its genuineness. Assuming for the sake of
argument that the said letter was written by the petitioners, in that
eventuality, for the said voluntary act on behalf of the petitioners,
according to us notarizing such a document was of no consequence.
In view of the aforestated reasons, according to us the said letter
dated 1.4.2005 loses its significance and needs to be kept aside for
our consideration while evaluating the material evidence on record.
16) The bank in its pleadings since beginning has taken
consistent stand that in pursuance of the said letter dated 1.4.2005,
the petitioners handed over the vacant and peaceful possession for
and in favour of the bank on 6.4.2011. The bank in its reply before
the DRT had admitted about the presence of police personnel at the
site i.e. at the suit property on 6.4.2011.The documents on record
further reveals that in pursuance of the letter issued by the bank with
a request of provide police protection, the police had been to the suit
property on 6.4.2011. As stated earlier, it is submitted on behalf of
the bank that the bank had sought police protection only by way of
abundant caution and to avoid any untoward incident which might
34 /38 WP-5252-2015
take place at the last moment. The police constable /Home guards
namely Shri. Purshottam Singh and Smt. Kalpana with other persons
were present at the suit property on 6.4.2011 and are signatories to
the panchanama effected by the officers of the bank after taking
possession. In the panchanama dated 6.4.2011 signed by Smt.
Kalpana, a police constable, on the internal page No. 2, it is
handwritten between last two paragraphs that "Physical possession
of the property was delivered voluntarily". The CBI during the course
of investigation of the crime has recorded the statements of Smt.
Kalpana and Smt. Mangania Meshram who were present at the suit
property on 6.4.2005 and these two witnesses in their statements
dated 5.3.2015 have categorically stated that when they signed on
the second page of the panchanama in between the said two
portions, nothing was written there. That they have signed the
panchanama after bank officers explained it in Hindi about its
contents. Thus, it is prima facie, abundantly clear that when the bank
officers recorded the panchanama dated 6.4.2011 allegedly at the
suit property, the sentences "physical possession of the property was
delivered voluntarily" appearing in the panchanama signed by Smt.
Kalpana was not there and it is either interpolation or addition
effected by the bank officers subsequently. Thus, according to us, the
bank has created scene of taking alleged voluntary possession from
the petitioners and without following mandatory provisions of the
Securitization Act. It is the specific case of the petitioners that on
35 /38 WP-5252-2015
6.4.2011 they have been physically evicted from the suit property by
the bank officers along with recovery agents and police personnel.
Advocate Shri. Dilip Sharma who was called by the petitioners at the
suit property on 6.4.2011 and who was present at the time of taking
possession has also filed an affidavit before the Court to that effect.
17) After scrutinizing the entire material/documents available
on record, we are of the considered opinion that the respondent bank
has taken the possession of the suit property unceremoniously and
without following due process of law. The documents available on
record clearly shows that the petitioners have been forcibly evicted
from the suit property in question.
18) The aforesaid discussion on facts will unequivocally lead
to a positive conclusion that the concerned officers of respondent
No.1 in utter violation of the provisions of the SARFAESI Act have
indulged into taking possession of the suit property and the
petitioners have been evicted from the suit property
unceremoniously and forcibly and therefore, we are of the
considered opinion that Section 29 of the SARFAESI Act squarely
applies in the present case. We therefore, grant liberty to the
petitioners to file complaint as contemplated under Section 29 of the
SARFAESI Act and any other law prevailing in the field against Shri. R.
Ramnathan Assistant General Manager and the Authorized Officer
and Shri. Sanjay Satpathi, and Law Officer of respondent No.1 Bank,
for taking forcible possession who were present at the time of taking
36 /38 WP-5252-2015
possession and any other person related with the said offence, if so
advised. The directions to that effect given by the DRAT by its order
dated 14.10.2014 in Para 11 are maintained to that extent. However,
the further directions issued by the DRAT to the District Magistrate to
consider and take cognizance if the complaint is made and to secure
the presence of the said persons and dispose of the case according to
law is hereby quashed and set aside. as such a direction is against
the settled cannons of law.
19) As far as Civil Application NO.2088/16 filed by respondent
No.2-Rajat Infrastructure for initiating the inquiry against the
petitioners under Section 340 of the Cr.P.C. for the alleged offence
under the various sections of the Indian Penal Code is concerned, the
petitioners in their reply to the said civil application, at Page 93 has
categorically stated that while taking photo copy of the said
document i.e. letter dated 1.4.2005 which is annexed at Page No. 76
in C.A. No.2088/2016 and Page No.80 in W.P. No.5252/2015 some
error is crept in and some portion of the original letter which is at
Page No. 75 of C.A. No.2088/2016 has remained to be copied and
therefore, by no stretch of imagination is an attempt to mislead this
Court. It is to be noted here that affiant of the said application Shri.
Vijay Choudhary is the Director of Respondent Nos. 2 to 4 and was
interested in securing the loan from the financial institution i.e.
respondent No.1 Bank. It appears from the record that the said affiant
along with other persons was instrumental in submitting the said
37 /38 WP-5252-2015
letter dated 1.4.2005 to the bank for securing the financial
assistance. As stated earlier, the CBI during the course of
investigation has found that the signatures of the petitioners on the
said letter dated 1.4.2005 are forged one. It clearly appears to us that
the affiant of CA. No.2088/2016 Shri. Vijay Choudhary wants to lay a
foundation for creating his defence in the criminal case/trial wherein
the CBI has already submitted a charge sheet before the Court of
competent jurisdiction at Indore and/or to pressurize the petitioners
from resiling from their statements given to the police/CBI. As stated
earlier the High Court of Madhya Pradesh, Bench at Indore, has
observed adversely against the said applicants namely Vijay
Choudhary and other applicants therein while rejecting their pre
arrest bail application by an order dated 17.11.2011. Even otherwise
on independent scrutiny of the said two documents which are at
Page No.s 76 of C.A.No.2088/2016 and 80 of W.P. NO.5252/2015 on
one hand and Page No. 75 of C.A. No.2088/2016 on other hand we
find that there is substance in the submission of the petitioners, that
while taking a photo copy, certain portion i.e. signature of one person
has remained to be copied out and in our opinion no case is made out
at all to initiate any enquiry under Section 340 of the Cr.P.C. In our
considered opinion, the said application deserves to be dismissed in
limine.
38 /38 WP-5252-2015
20) Hence, the following order.
a) Writ Petition No.5252 of 2015 is allowed and respondent
No.1-Bank is hereby directed to restore the possession of the suit
property in favour of the petitioners forthwith and in any case within
a period of fifteen days from today.
b) Writ Petition No.54/2015 preferred by the respondent
No.1-bank is partly allowed and while reserving the right of the
petitioners in W.P. No.5252/2015 to file appropriate complaint and/or
to adopt proceedings as contemplated under Section 29 of the
SARFAESI Act and any other law in force, the observations made by
the DRAT in its order dated 14.10.2014 in Para No.11, to the extent
that, "In turn the District Magistrate is directed to consider and take
the cognizance if the complaint is made and to secure the presence
of above person by issuing NBW and dispose of the case according
to law", are quashed and set aside.
The rest of the directions issued by the DRAT in Para 11
are maintained.
c) Civil Application No.2088/2016 being dehores of any
merits is dismissed in limine.
d) In view of the order passed in W.P. N.5252 of 2015 civil
application No.3188 of 2016 does not survive and the same is
disposed of.
e) No order as to costs.
(A.S.GADKARI, J.) (R.M. BORDE, J.)
