Jharkhand High Court
Baba Baidyanath Medical Trust vs State Of Jharkhand Through The Deputy ... on 1 August, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 121 of 2024
1. Baba Baidyanath Medical Trust, having its Head Office at DD-5,
Dhawandeep Building, Jantar Mantar Road, P.O. & P.S. Jantar Mantar,
District- Cental Delhi, New Delhi-110001, through its Trustee Devta
Kumar Pandey, son of Binod Kumar Pandey, aged about 44 years,
resident of Beside SKP Vidya Vihar School, Near Jubilee Ground, P.O. &
P.S. Deosang, District- Deoghar
2. Devta Kumar Pandey, son of Binod Kumar Pandey, aged about 44
years, resident of Beside SKP Vidya Vihar School, Near Jubilee Ground,
P.O. & P.S. Deosang, District- Deoghar ... Petitioners
-Versus-
1. State of Jharkhand through the Deputy Commissioner, Deoghar, P.O.,
P.S. & District- Deoghar
2. Sub-Divisional Officer, Deoghar, P.O., P.S. & District- Deoghar
3. Circle Officer, Deoghar, P.O., P.S. & District- Deoghar
4. Punjab National Bank, having its Head Office at Plot No.4, Sector 10,
Dwarika, P.O. & P.S. Dwarka, District- South West Delhi, New Delhi,
through its Chairman cum Managing Director, Plot No.4, Sector 10,
Dwarka, P.O. & P.S. Dwarka, District- South West Delhi, New Delhi
5. Assistant General Manager, Punjab National Bank, Main Road, P.O.
G.P.O., P.S. Kotwali, District- Ranchi
6. Nand Kishore Rai, Son of Shri Arjun Prasad Rai, resident of Village
Baghmari, P.O. & P.S. Baghmari, District- Deoghar ... Respondents
-----
PRESENT
HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioners : Mr. Ajit Kumar, Sr. Advocate
Ms. Shivani Jaluka, Advocate
Mr. Amit Sinha, Advocate
For the State : Mr. Ravi Prakash Mishra, A.C. to A.A.G.-II
For the Bank : Mr. P.A.S. Pati, Advocate
For Respondent No. 6 : Mr. Abhishek Krishna Gupta, Advocate
Mr. Rahul Kumar Mishra, Advocate
Ms. Neha Agrawal, Advocate
-----
C.A.V. on 25.07.2024 Pronounced on 01.08.2024
Heard Mr. Ajit Kumar, learned senior counsel appearing for the
petitioners, Mr. Ravi Prakash Mishra, learned counsel for the State, Mr. P.A.S.
Pati, learned counsel for the Bank and Mr. Abhishek Krishna Gupta, learned
counsel for respondent no.6.
2. The prayer in the writ petition is made for quashing of the entire
proceedings in Criminal Misc. Case No.29 of 2024 pending before
respondent no.2 on the ground the same is without jurisdiction and is in the
teeth of order of status quo passed on 24.02.2024 by the High Court in
W.P.(C) No.165 of 2024 and without impleading the necessary party i.e.
petitioner no.1. The further prayer is made for quashing the order dated
07.02.2024, contained in Annexure-8 passed by respondent no.2 in Criminal
Misc. Case No.29 of 2024, whereby, the scheduled property was attached
and respondent no.3 was appointed as the receiver of the scheduled
property. The prayer is also made for quashing of the warrant of attachment
dated 07.02.2024, contained in Annexure-9 issued under Section 146(1)
Cr.P.C. by respondent no.2 in Criminal Misc. Case No.29 of 2024.
3. Mr. Ajit Kumar, learned senior counsel appearing for the petitioners
submitted that petitioner no.1 is a registered Trust whose trustees are
citizen of India and petitioner no.2 is its Trustee who is looking affairs of
petitioner no.1-Trust. He submitted that respondent no.6 is a private
individual who had filed a complaint before respondent no.2 on the basis of
which Criminal Misc. Case No.29 of 2024 was instituted. He further
submitted that the land is situated at Village Mohanpur, Thana No.224,
Jamabandi No.11, P.S. Jasidih, District- Deoghar, Plot Nos.301, 309,
310/689, 63, 64, 65, 73, 75, 76, 77, 78, 79, 80, 87, 88, 193, 197, 204, 282,
308, 339, 340, 341, 352, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367,
368, 369, 370, 375, 381, 408, 417, 453, 81/685, 81 and 74 ad-measuring
an area of 26 acres and 50 decimals along with land, building, structures
including all movable items, medical machines and equipment, hospital
fixtures and furniture (scheduled property) belonged to M/s Paritran Medical
College and Hospital. M/s Paritran Medical College and Hospital had
mortgaged the scheduled property for seeking financial assistance of Rs.93
Crores from the consortium of Banks of which respondent no.4 was the
leading Bank and United Bank of India and Oriental Bank of Commerce
were members of the consortium for implementation of project. He then
submitted that M/s Paritran Medical College and Hospital was unable to
repay the loan amount and the loan account was declared NPA by Punjab
National Bank on 31.03.2011, Union Bank of India on 30.09.2010 and
Oriental Bank of Commerce on 31.12.2010, thereafter, the Banks filed O.A.
No.154 of 2013 before the Debts Recovery Tribunal, Ranchi for recovery of
a sum of Rs.1,41,39,09,761.56/- (Rupees One Hundred and Forty One
Crores Thirty Nine Lakhs Nine Thousand Seven Hundred and Sixty One and
Fifty Six Paise). The said O.A. was allowed by the Debts Recovery Tribunal,
Ranchi vide order dated 26.06.2015 and recovery certificate was issued for
recovery of an amount of Rs.1,41,39,09,761.56/- (Rupees One Hundred and
Forty One Crores Thirty Nine Lakhs Nine Thousand Seven Hundred and
Sixty One and Fifty Six Paise) and, thereafter, demand notice dated
13.07.2015 was issued by the Recovery Officer, Debts Recovery Tribunal,
Ranchi wherein M/s Paritran Medical College and Hospital was called upon
to pay the certificate amount. The Recovery Officer vide order dated
13.04.2016 issued the warrant of attachment for attachment of immovable
property mortgaged with the consortium Bank which was forwarded to the
Recovery Inspector and another warrant of attachment of movable
properties was issued on 27.10.2016 and receiver was appointed for
preparation of inventory of movable properties. He further submitted that
the Recovery Officer, Debts Recovery Tribunal and Bank have thereafter
taken repeated efforts to auction the scheduled property. The scheduled
property was again put to auction vide order dated 08.11.2023 and the
auction schedule was fixed for 20.12.2023. He submitted that before the
date of auction sale, one interlocutory application was filed by M/s Paritran
Medical College and Hospital before the Recovery Officer on 18.12.2023 for
stay of the auction on 20.12.2023, which was rejected on 19.12.2023. He
further submitted that the auction was taken place on 20.12.2023 and
petitioner no.1 was declared successful bidder and the order of confirmation
of the sale along with the certificate of sale was issued in favour of
petitioner no.1 on 23.01.2024, contained in Annexure-2. By way of drawing
attention of the Court to Annexure-4, which is the order passed by the High
Court in W.P.(C) No.165 of 2024, he submitted that the said writ petition
was filed under Article 226 of the Constitution of India by M/s Paritran
Medical College and Hospital, in which, petitioner no.1 was not made party-
respondent. The said writ petition was listed on 24.01.2024 at 04:00 P.M.
He submitted that the petitioners came to know about listing of the said
matter. It was submitted that the petitioner is the auction purchaser of the
scheduled property and he has not been impleaded as respondent in the
said writ petition and the Bank has also submitted that the possession of
the schedule property has been handed over to petitioner no.1 at around
03:00 P.M. and recording the said submission, the High Court passed the
order of status quo over the scheduled property on 24.01.2024 and the
matter was further directed to be listed on 30.01.2024. The respondent-
Punjab National Bank filed counter affidavit in the said writ petition,
wherein, it was stated that at 03:17 P.M., the possession of the scheduled
property was handed over to petitioner no.1. He further submitted that in
violation of the order of status quo passed by the High Court, the Guard of
M/s Paritran Medical College and Hospital, who is respondent no.6 in the
present writ petition, filed an application before respondent no.2 on
27.01.2024 against petitioner no.2 for recovery of possession of the
scheduled property alleging therein that petitioner no.2 has illegally taken
the possession of the scheduled property on 24.01.2024 at 05:00 P.M.,
thereafter, respondent no.2 on the basis of the application filed by
respondent no.6 initiated a proceedings under Section 145 Cr.P.C. against
petitioner no.2, which was registered as Criminal Misc. Case No.29 of 2024.
He then submitted that petitioner no.1 was not impleaded as party-
respondent in the said proceeding under Section 145 Cr.P.C., whereas, the
said property was already handed over to petitioner no.1 on 24.01.2024 at
03:17 P.M. Vide order dated 27.01.2024, notices were issued upon petitioner
no.2 and respondent no.6 and the matter was posted for 07.02.2024 by
respondent no.2. He submitted that no notice with regard to the proceeding
in Criminal Misc. Case No.29 of 2024 was however served upon petitioner
no.2 and without verifying the same and without providing opportunity of
hearing to petitioner no.2, the order dated 07.02.2024 has been passed by
respondent no.2, wherein, the scheduled property has been attached and
respondent no.3 has been appointed as receiver under Section 146 Cr.P.C.
He submitted that the petitioners were unaware of the proceeding initiated
by respondent no.2 on the application filed by respondent no.6 and they
came to know about the order dated 07.02.2024 later on. He submitted that
in this background, the initiation of proceeding under Section 145 Cr.P.C. is
without jurisdiction and in violation of the order passed by the High Court
dated 24.01.2024 in W.P.(C) No.165 of 2024. He submitted that the said
proceeding was bad in law as the petitioners were not made party and they
were not heard and in spite of that, the order has been passed. He also
submitted that the possession was handed over to petitioner no.1 on
24.01.2024 at 03:17 P.M., as such, the contention of respondent no.6 was
not correct that by 05:00 P.M., M/s Paritran Medical College and Hospital
was in possession. He further submitted that respondent nos. 1 to 3 by way
of biasness and malafide intention, have passed such order in violation of
the order of the High Court as the auction sale was in favour of the
petitioners and sale certificate was also issued. He submitted that the entire
proceeding is vitiated on the ground of principle of natural justice also. He
submitted that the interlocutory application being I.A. No.1006 of 2024 was
filed in W.P.(C) No.165 of 2024 by M/s Paritran Medical College and Hospital
for initiation of contempt against petitioner no.2 for violating the order
dated 24.01.2024 passed by the High Court, however, the writ petition itself
was dismissed on the ground of maintainability and no contempt proceeding
was initiated vide order dated 13.02.2024. He submitted that although
against the order dated 13.02.2024, L.P.A. has been preferred and in that
appeal the judgment is reserved, however, the same has got no concern so
far as the present writ petition is concerned. He submitted that once the
auction sale was in favour of the petitioners and certificate was also issued
and the Recovery Officer has already handed over the said property, the
respondent, if he was aggrieved, he was having remedy of filing an appeal
under Section 30 of the Recovery of Debts and Bankruptcy Act, 1993. On
the maintainability of Sections 145 and 146 Cr.P.C., he submitted that the
authority concerned has got no jurisdiction in the facts and circumstances of
the present case. He relied upon the judgment passed by the Hon'ble
Supreme Court in the case of Shanti Kumar Panda v. Shakuntala Devi,
reported in (2004) 1 SCC 438. He referred paragraph 23 of the said
judgment, which reads as under:
"23. For the purpose of legal proceedings initiated before
a competent court subsequent to the order of an Executive
Magistrate under Sections 145/146 of the Code of Criminal
Procedure, the law as to the effect of the order of the
Magistrate may be summarized as under:
(1) The words "competent court" as used in sub-
section (1) of Section 146 of the Code do not
necessarily mean a civil court only. A competent
court is one which has the jurisdictional competence
to determine the question of title or the rights of the
parties with regard to the entitlement as to
possession over the property forming the subject-
matter of proceedings before the Executive
Magistrate:
(2) A party unsuccessful in an order under Section
145(1) would initiate proceedings in a competent
court to establish its entitlement to possession over
the disputed property against the successful party.
Ordinarily, a relief of recovery of possession would be
appropriate to be sought for. In legal proceedings
initiated before a competent court consequent upon
attachment under Section 146(1) of the Code it is
not necessary to seek relief of recovery of
possession. As the property is held custodia legis by
the Magistrate for and on behalf of the party who
would ultimately succeed from the court, it would
suffice if only determination of the rights with regard
to the entitlement to the possession is sought for.
Such a suit shall not be bad for not asking for the
relief of possession.
(3) A decision by a criminal court does not bind
the civil court while a decision by the civil court binds
the criminal court. An order passed by the Executive
Magistrate in proceedings under Sections 145/146 of
the Code is an order by a criminal court and that too
based on a summary enquiry. The order is entitled to
respect and wait before the competent court at the
interlocutory stage. At the stage of final adjudication
of rights, which would be on the evidence adduced
before the court, the order of the Magistrate is only
one out of several pieces of evidence.
(4) The court will be loath to issue an order of
interim injunction or to order an interim arrangement
inconsistent with the one made by the Executive
Magistrate. However, to say so is merely stating a
rule of caution or restraint, on exercise of discretion
by court, dictated by prudence and regard for the
urgent/emergent executive orders made within
jurisdiction by their makers; and certainly not a tab
on the power of court. The court does have
jurisdiction to make an interim order including an
order of ad interim injunction inconsistent with the
order of the Executive Magistrate. The jurisdiction is
there but the same shall be exercised not as a rule
but as an exception. Even at the stage of passing an
ad interim order the party unsuccessful before the
Executive Magistrate may on material placed before
the court succeed in making out a strong prima facie
case demonstrating the findings of the Executive
Magistrate to be without jurisdiction, palpably wrong
or self-inconsistent in which or the like cases the
court may, after recording its reasons and
satisfaction, make an order inconsistent with, or in
departure from, the one made by the Executive
Magistrate. The order of the court -- final or
interlocutory, would have the effect of declaring one
of the parties entitled to possession and evicting
therefrom the party successful before the Executive
Magistrate within the meaning of sub-section (6) of
Section 145."
Relying on the above judgment, he submitted that the proceeding
under Section 145 Cr.P.C. itself was bad in law.
On the point of Section 146 Cr.P.C., learned senior counsel appearing
for the petitioners further relied upon the judgment passed by the Hon'ble
Supreme Court in the case of Ashok Kumar v. State of Uttarakhand
and others, reported in (2013) 3 SCC 366. He referred paragraphs 9, 10
and 11 of the said judgment, which read as under:
"9. The above order would indicate that the SDM has, in
our view, wrongly invoked the powers under Section 146(1)
CrPC. Under Section 146(1), a Magistrate can pass an order
of attachment of the subject of dispute if it be a case of
emergency, or if he decides that none of the parties was in
such possession, or he cannot decide as to which of them
was in possession. Sections 145 and 146 of the Criminal
Procedure Code together constitute a scheme for the
resolution of a situation where there is a likelihood of a
breach of the peace and Section 146 cannot be separated
from Section 145 CrPC. It can only be read in the context of
Section 145 CrPC. If after the enquiry under Section 145 of
the Code, the Magistrate is of the opinion that none of the
parties was in actual possession of the subject of dispute at
the time of the order passed under Section 145(1) or is
unable to decide which of the parties was in such
possession, he may attach the subject of dispute, until a
competent court has determined the right of the parties
thereto with regard to the person entitled to possession
thereof.
10. The ingredients necessary for passing an order under
Section 145(1) of the Code would not automatically attract
for the attachment of the property. Under Section 146, a
Magistrate has to satisfy himself as to whether emergency
exists before he passes an order of attachment. A case of
emergency, as contemplated under Section 146 of the
Code, has to be distinguished from a mere case of
apprehension of a breach of the peace. The Magistrate,
before passing an order under Section 146, must explain
the circumstances why he thinks it to be a case of
emergency. In other words, to infer a situation of
emergency, there must be material on record before the
Magistrate when the submission of the parties is filed,
documents produced or evidence adduced.
11. We find from this case that there is nothing to show
that an emergency exists so as to invoke Section 146(1)
and to attach the property in question. A case of
emergency, as per Section 146 of the Code has to be
distinguished from a mere case of apprehension of breach
of peace. When the reports indicate that one of the parties
is in possession, rightly or wrongly, the Magistrate cannot
pass an order of attachment on the ground of emergency.
The order acknowledges the fact that Ashok Kumar has
started construction in the property in question, therefore,
possession of property is with the appellant Ashok Kumar,
whether it is legal or not, is not for the SDM to decide."
By way of relying on the above judgments, he submitted that in
absence of any report, the orders have been passed and the possession was
in favour of the petitioners rightly or wrongly, the learned Magistrate was
not required to pass an order of attachment on the ground of emergency.
On these grounds, learned senior counsel appearing for the
petitioners submitted that the entire criminal proceeding may kindly be
quashed.
4. Per contra, Mr. Ravi Prakash Mishra, learned counsel appearing for the
respondent-State submitted that the order was well within jurisdiction and
in view of that, respondent no.2 has rightly passed the order. By way of
referring the order dated 07.02.2024, he submitted that the report and the
concern of law and order was raised by the Special Branch, Ranchi and the
Circle Officer has also pointed out the same and, thereafter, the said order
has been passed and, as such, the order is in accordance with law and this
Court may not interfere with the writ petition.
5. Mr. Abhishek Krishna Gupta, learned counsel appearing for
respondent no.6 submitted that the petitioners have suppressed the
material fact in the order dated 23.01.2024 of the Recovery Officer in R.C.
Case No.236 of 2015 to the effect that the Deputy Commissioner, Deoghar
was also directed to be involved in the process of handing over the
possession of the property to the auction purchaser. He further submitted
that status quo order was passed by the High Court in W.P.(S) No.165 of
2024 and M/s Paritran Medical College and Hospital categorically stated that
possession of the property has not yet been taken by the auction purchaser.
He submitted that the incident took place at 05:00 P.M. on 24.01.2024 at
M/s Paritran Medical College, Jasidih, Deoghar and for that criminal incident,
one FIR being Jasidih P.S. Case No.30/2024 was also registered. He also
submitted that on 25.01.2024, an application with regard to the incident
dated 24.01.2024 was received by the Deputy Commissioner, Deoghar along
with an Advocate Certificate and, thereafter, the Deputy Commissioner has
forwarded the matter to the Circle Officer, Deoghar vide letter dated
27.01.2024 with direction to submit an Inquiry Report. He submitted that
respondent no.6 submitted an application on 27.01.2024 before respondent
no.2 with regard to Jasidih P.S. Case No.30/2024 and requested for
immediate intervention and, thereafter, Criminal Misc. Case No.29/2024
between Nand Kishore Rai and Devta Kumar Pandey and others was
registered under Section 145 Cr.P.C. He submitted that respondent no.2
after hearing the parties and perusing the report of the Officer-in-Charge of
Jasidih Police Station and report of Special Branch, Ranchi as well as the
report of the Circle Officer, passed an under under Section 146 Cr.P.C.
relating to attachment and appointment of receiver and, therefore, the
order has been passed in emergency situation and, as such, there is no
illegality in the order. He submitted that rightly the receiver was appointed.
On these grounds, he submitted that there is no illegality in the order and,
as such, this writ petition may kindly be dismissed.
6. Mr. P.A.S. Pati, learned counsel for the respondent-Punjab National
Bank submitted that the finance facility was extended to M/s Paritran
Medical College and Hospital by the Bank and the Punjab National Bank was
consortium leader. He submitted that the property in question was
auctioned on 20.12.2023 and sale certificate was also issued in favour of
the petitioner no.1 on 23.01.2024 and pursuant to that, the Recovery
Officer, Debts Recovery Tribunal, Ranchi has handed over peaceful physical
possession to petitioner no.1 at 03:17 P.M. on 24.01.2024, which is evident
from the memo drawn by the Advocate Commissioner on 24.01.2024. He
submitted that there was no exceptional reason or ground in favour of
respondent no.6. The auction took place on 20.12.2023 and the procedures
are prescribed under the Recovery of Debts and Bankruptcy Act, 1993 how
to proceed further. The sale was confirmed on 23.01.2024 and the sale
certificate was issued in favour of petitioner no.1 which becomes absolute
and the sale has been conducted as per the provision of 2 nd and 3rd schedule
of the Income Tax Act, 1961. He further submitted that the respondent no.6
has not preferred any appeal under the Recovery of Debts and Bankruptcy
Act, 1993 and the proceedings under Sections 145 and 146 Cr.P.C. were
drawn, which were without jurisdiction. On these grounds, he submitted
that there is no merit in the contention of the respondent no.6 and this
Court may pass appropriate order.
7. In view of the above submissions of the learned counsel for the
parties, the Court has gone through the materials on record. Admittedly, the
said property of M/s Paritran Medical College and Hospital was mortgaged
with three Banks and Punjab National Bank was consortium Bank and the
said Hospital failed to repay the amount of loan and pursuant to that the
loan account was declared NPA. Thereafter, the Bank instituted O.A. No. 154
of 2013 for recovery of amount in which, direction was issued vide order
dated 26.06.2015 to pay the amount to the tune of Rs.1,41,39,09,761.56/-
(Rupees One Hundred and Forty One Crores Thirty Nine Lakhs Nine
Thousand Seven Hundred and Sixty One and Fifty Six Paise) and recovery
certificate was issued and when the amount was not paid within the
stipulated time, the Recovery Officer vide order dated 13.04.2016 issued the
warrant of attachment. M/s Paritran Medical College and Hospital has also
filed an interlocutory application for stay of the auction dated 20.12.2023,
which was rejected and pursuant to that, petitioner no.1 was declared
successful bidder and certificate of sale was issued in favour of petitioner
no.1 on 23.01.2024. In the meantime, the said M/s Paritran Medical College
and Hospital filed the writ petition under Article 226 of the Constitution of
India being W.P.(C) No.165 of 2024 in which status quo order was passed
on 24.01.2024 at 04:00 P.M. The cause-list is annexed with the writ petition,
contained in Annexure-3, which clearly suggests that the matter was listed
at 04:00 P.M. before the concerned Bench. On the submission of the
learned counsel for the Bank, it was observed in the said writ petition vide
order dated 24.01.2024 that the possession has been handed over to the
auction purchaser at around 03:00 P.M. on 24.01.2024 and status quo order
was passed. The documents on record further suggest that the order of
preparation of inventory of assets and handing over the peaceful possession
of scheduled property has taken place on 24.01.2024 at 03:17 P.M. by the
Advocate Commissioner, which was in presence of three witnesses, who
have signed the said document and the auction purchaser has also signed
on the said document. Thus, it is crystal clear that the said handing over
process was already completed on 24.01.2024 at 03:17 P.M. in favour of
petitioner no.1, which was also observed in the order of the High Court
dated 24.01.2024 and the High Court passed the order of status quo. Thus,
the possession of the petitioners are proved on that day, however, on the
application of respondent no.6 of the same day at 05:00 P.M., the
proceeding under Section 145 Cr.P.C. was initiated on 27.01.2024 and it was
posted for 07.02.2024 and on 07.02.2024, respondent no.2 has passed the
order of attachment under Section 146(1) Cr.P.C. and respondent no.3 was
appointed as receiver. Looking into the order dated 27.01.2024 passed
under Section 145 Cr.P.C. as well as the order dated 07.02.2024, the Court
finds that the petitioners have not been provided any opportunity of hearing
and in absence of that, the said two orders have been passed.
8. For deciding the proceeding under Section 145 Cr.P.C., the Court is
required to keep in mind the availability of prima facie case, balance of
convenience and the irreparable injury and should have regard to the
materials in the affidavit, documents and pleadings and, thereafter, the
orders are required to be passed. Sub-section (1) of Section 145 Cr.P.C.
clearly speaks that the concerned party in such dispute is required to be
noticed to attend the Court in person or by pleader, on a specified date and
time and written statements of claims are required to be filed and,
thereafter, the proceeding under Section 145 Cr.P.C. can proceed. In
absence of all these things, the order has been passed without providing
opportunity of hearing to the petitioners.
9. Further, the order under Section 146 Cr.P.C. can be passed if the
learned Magistrate come to a conclusion that nobody is in possession and it
cannot be decided which of the parties are in possession. Section 146
Cr.P.C. cannot be separated from Section 145 Cr.P.C. and on these points,
the judgments relied by the learned senior counsel appearing for the
petitioners in the cases of Shanti Kumar Panda and Ashok Kumar
(supra) are in favour of the petitioners.
10. Further, when status quo order was passed by the High Court and by
03:17 P.M. itself, the petitioners were put in possession of the property in
question, in violation of the order of the High Court, all these orders have
been passed, however, the said writ petition was dismissed later on.
11. Admittedly, the case is arising out of auction sale and in terms of
Section 30 of the Recovery of Debts and Bankruptcy Act, 1993, if anybody is
aggrieved, he is having remedy of filing an appeal and without availing the
same, all these proceedings were initiated at the instance of respondent
no.6 without providing any opportunity of hearing to the petitioners, which
clearly suggests that these orders have been passed arbitrarily without
following mandate of law.
12. When a property is sold by public auction in pursuance of an order of
the Court and the bid is accepted and the sale is confirmed by the Court in
favour of the purchaser, the sale becomes absolute and the title vests in the
purchaser. A sale certificate is issued to the purchaser only when the sale
becomes absolute. The sale certificate is merely the evidence of such title.
It is well settled that when an auction purchaser derives title on
confirmation of sale in his favour and a sale certificate is issued evidencing
such sale and title, no further deed of transfer from the Court is
contemplated or required. The sale certificate itself was issued, though such
a sale certificate issued by a Court or an officer authorised by the Court,
does not require registration. A reference may be made to the judgment
passed by the Hon'ble Supreme Court in the case of B. Arvind Kumar v.
Govt. of India and others , reported in (2007) 5 SCC 745, wherein, in
paragraph no.12, these aspects have been answered by the Hon'ble
Supreme Court. Paragraph 12 of the said judgment reads as under:
"12. The plaintiff has produced the original registered
sale certificate dated 29-8-1941 executed by the Official
Receiver, Civil Station, Bangalore. The said deed certifies
that Bhowrilal (father of the plaintiff) was the highest
bidder at an auction-sale held on 22-8-1941, in respect of
the right, title, interest of the insolvent Anraj Sankla,
namely, the leasehold right in the property described in the
schedule to the certificate (suit property), that his bid of Rs
8350 was accepted and the sale was confirmed by the
District Judge, Civil and Military Station, Bangalore on 25-8-
1941. The sale certificate declared Bhowrilal to be the
owner of the leasehold right in respect of the suit property.
When a property is sold by public auction in pursuance of
an order of the court and the bid is accepted and the sale
is confirmed by the court in favour of the purchaser, the
sale becomes absolute and the title vests in the purchaser.
A sale certificate is issued to the purchaser only when the
sale becomes absolute. The sale certificate is merely the
evidence of such title. It is well settled that when an
auction-purchaser derives title on confirmation of sale in his
favour, and a sale certificate is issued evidencing such sale
and title, no further deed of transfer from the court is
contemplated or required. In this case, the sale certificate
itself was registered, though such a sale certificate issued
by a court or an officer authorised by the court, does not
require registration. Section 17(2)(xii) of the Registration
Act, 1908 specifically provides that a certificate of sale
granted to any purchaser of any property sold by a public
auction by a Civil or Revenue Officer does not fall under the
category of non-testamentary documents which require
registration under sub-sections (b) and (c) of Section 17(1)
of the said Act. We therefore hold that the High Court
committed a serious error in holding that the sale
certificate did not convey any right, title or interest to
plaintiff's father for want of a registered deed of transfer. "
13. Admittedly, in the case in hand, on the Court's order, the Advocate
Commissioner has been handed over the scheduled property to the
petitioners on 24.01.2024 at 03:17 P.M.
14. The Court finds that the contention of the learned counsel appearing
for respondent no.6 that the involvement of the Deputy Commissioner was
necessary, the same is misconceived one. The Recovery Officer has also
directed that Certificate Holder Bank to assist the Advocate Commissioner
and help him to liaise with the authorities for peaceful possession of the
property and peaceful possession has already been handed over in line of
the Court's order. Since by the order of the Court, the possession has been
handed over in presence of the Advocate Commissioner as well as of the
witnesses, the stage of Section 14 of the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002 has not
come and the involvement of the Deputy Commissioner was rightly not
called upon.
15. In view of the above facts, reasons and analysis, the Court finds that
the entire criminal proceedings under Sections 145 and 146 Cr.P.C. are
vitiated as without following due process of law, the proceedings were
initiated and the orders have been passed which cannot sustain in the eyes
of law and, as such, the entire criminal proceedings arising out of Criminal
Misc. Case No.29 of 2024, pending before respondent no.2 as well as the
the order dated 07.02.2024, contained in Annexure-8 passed by respondent
no.2 in Criminal Misc. Case No.29 of 2024 and the warrant of attachment
dated 07.02.2024, contained in Annexure-9 issued by respondent no.2 in
Criminal Misc. Case No.29 of 2024 are, hereby, quashed.
16. Accordingly, this petition is allowed and disposed of.
17. Pending I.A., if any, is disposed of.
(Sanjay Kumar Dwivedi, J.)
High Court of Jharkhand, Ranchi
Dated: the 01st day of August, 2024
Ajay/ A.F.R.
