Madras High Court
State Of Tamil Nadu vs New Golden Marketing Company on 1 April, 2021
C.M.A.No.118 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.118 of 2021
C.M.P.No.802 of 2021
State of Tamil Nadu,
Rep.by the Deputy Superintendent of Police,
Economic Offences Wing-II,
Cuddalore District. .. Appellant
vs.
1.New Golden Marketing Company,
No.93, Arcot Road,
Lakshmi Tower,
Kodambakkam, Chennai-24.
2.Govindaraj
3.Selvamani
4.Rajesh Kanna
5.Chelladurai
6.Murugan
7.S.Pauline
8.Benadict .. Respondents
1/11
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C.M.A.No.118 of 2021
PRAYER : Civil Miscellaneous Appeal filed under Section 11 of TNPID
Act, against the judgment and decree dated 28.10.2015 made in O.A.No.84
of 2010, passed by the Special Judge under TNPID Act, 1997, Chennai
For Appellant : Mr.Y.T.Aravind Gosh
Additional Government Pleader (CS)
For Respondent : Mr.E.Kannadasan for RR1 & 2
JUDGMENT
The judgment and decree dated 28.10.2015 passed in O.A.No.84 of
2010 is under challenge in the present Civil Miscellaneous Appeal.
2. The Deputy Superintendent of Police, Economic Offences Wing-II
filed an application under Section 8 of the TNPID Act for attachment of the
property which was transferred with malafide intention so as to defeat the
interest of the depositors.
3. The learned Additional Government Pleader made a submission that
the Financial Establishment in question commenced their business in the
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year 2009 and they collected huge amount from the depositors and failed to
return back the matured deposits as well as the interest. Thus, the Deputy
Superintendent of Police received many complaints from the depositors and
a criminal case was registered in Crime No.183 of 2010 dated 17.04.2010.
The case was transferred to the Economic Offences Wing-II, Cuddalore on
04.05.2010. Further, another complaint was filed that was registered as
Crime No.1 of 2010 on 08.05.2010. Accordingly, the case was numbered as
C.C.No.04 of 2012. 168 depositors have deposited their hard-earned money.
The amount defaulted by the Financial Company is about a sum of
Rs.2,39,23,000/-.
4. The learned Additional Government Pleader reiterated that the transfer
of immovable properties was done with malafide intention so as to defeat
the provision of the TNPID Act and affecting the rights of the depositors to
get refund of their deposits amount with interest. The subject property was
purchased by the second accused on 10.09.2009 in Doc.No.3708 of 2009 for
a sale consideration of Rs.25,00,000/-. Thereafter, the second accused
appointed the 4th respondent as Power Agent on 27.11.2009 in Document
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C.M.A.No.118 of 2021
No.2735 of 2009 dated 27.11.2009. The Power Agent sold the subject
property in favour of Chelladurai/5th respondent and Murugan/6th
respondent herein through Document No.2348 of 2010 dated 30.04.2010 for
a sale consideration of Rs.25 lakhs. It is pertinent to note that the criminal
case was registered on 17.04.2010 prior to the transfer of the subject
property in favour of the respondent Nos.5 and 6 by the 4th
respondent/Power Agent. Thus, the second accused was very much aware of
the sale. The Power Agent/4th respondent executed the sale deed after
registration of the criminal case. Thus, for all purposes, such a transfer is
malafide transfer. Therefore, the Deputy Superintendent of Police filed an
application under Section 8 of the TNPID Act for attachment of the
property.
5. The respondents 5 and 6, knowing the fact that the property is going to
be attached, suddenly sold the subject property in favour of the 7th
respondent in Document No.6267 of 2010 dated 18.11.2010. The Deputy
Superintendent of Police filed an application under Section 8 in August
2010 and the Government issued G.O.Ms.No.918 dated 30.12.2011 clearly
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C.M.A.No.118 of 2021
mentioned that the application under Section 8 was pending before the
Special Court. Thereafter, the 7th respondent executed the settlement deed
in favour of the 8th respondent on 22.08.2012. All these
accused/respondents colluded together and created several documents in
order to defraud the depositors. Therefore, the appeal is to be allowed.
6. The respondents pleaded that the transactions are bonafide one and the
respondents 5 and 6 were innocent purchasers. The property was sold to the
7th respondent who is an innocent purchaser. Thus, the attachment can be
raised and the appellant could not able to establish that the transfer was a
malafide transfer.
7. The Special Court adjudicated the issues with reference to the
documents and evidence produced by the parties. The Special Court formed
an opinion that the respondents 5 and 6 as well as the 7th respondent were
bonafide purchasers and there was no malafide transfer, as far as the subject
property is concerned. In this regard, the Special Court made a finding that
as per the provisions of Section 8 of the TNPID Act, the transfer of property
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C.M.A.No.118 of 2021
could be considered as malafide if it is transferred. Otherwise than in good
will for consideration. As far as the petition mentioned property is
concerned, it was sold for reasonable consideration. Otherwise the sale deed
Ex.P3 could have been impounded by the concerned office of the Sub-
Registrar for payment of additional stamp duty. Thus, Ex.P3/sale deed was
valid in accordance with the provisions of the Act. Therefore, the said
document was accepted by the Sub-Registrar, Virugambakkam. Thus, the
question of undervaluation does not arise at all. Regarding the malafide of
the transfer, no convincing evidence has been adduced by the side of the
petitioner to establish that the 5th and 6th respondents purchased the
property with malafide intention. Based on the findings, the petition filed
by the Deputy Superintendent of Police was dismissed.
8. This Court is of the considered opinion that Section 3 contemplates the
attachment of properties on default of return of deposits. Sub-clause 2 states
that "where the Government have reason to believe that any Financial
Establishment is acting in a calculated manner with an intention to defraud
the depositors". In the present case, the Government passed an order in the
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C.M.A.No.118 of 2021
year 2011 clearly mentioned that the application under Section 8 was
pending before the Special Court. Therefore, they have not included the
subject property in the Government order which was issued under Section 3
of the Act. However, the Special Court has not considered these aspects.
This apart, Section 8 also stipulates that " where the Special Court is
satisfied by affidavit or otherwise that there is reasonable cause for
believing that the said Financial Establishment has transferred (whether
after the commencement of this Act or not) any of the property otherwise
than in good faith and for consideration the Special Court may, by notice,
require any transferee of such property (whether or not he received the
property directly from the said Financial Establishment) to appear". Thus,
the requirement under the provision of Section 8 is that there is reasonable
cause for believing that such an Establishment has transferred any of the
property, otherwise than in good faith.
9. Let us now consider the facts in this context. The criminal case was
registered in Crime No.183 of 2010 dated 17.04.2010. Undoubtedly, the
second accused executed power of attorney in favour of the 4th respondent
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C.M.A.No.118 of 2021
prior to the registration of the criminal case on 27.11.2009. But the fact
remains that the Power Agent executed the sale deed in favour of the
respondents 5 and 6 only after the registration of the criminal case on
30.04.2010 in Document No.2348 of 2010. The question arises whether it is
sufficient to establish that the purchase of the property is by an innocent
purchaser. This Court is of the considered opinion that the innocence or
bonafide of the purchaser alone cannot be a consideration. If the Financial
Establishment or the accused transferred the property with an intention to
defeat the provision of the Act or to defraud the depositors, then even if the
purchaser is a bonafide purchaser, the property is bound to be attached. In
such cases, the Financial Establishment has cheated the purchasers also.
Thus, the pleadings in this regard by the third party purchasers alone are
insufficient. But the Special Court is bound to ensure that the transfer made
by the accused or by the Financial Establishment was made in good faith or
to defraud the depositors. If there is a reasonable cause to believe that the
transfer was made not in good faith, then the property is to be attached
under Section 8. The reasonable cause is the subjective satisfaction. It is not
possible for the Courts to cull out the opinion of these proprietors of the
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C.M.A.No.118 of 2021
Financial Establishment. Once the facts established reveal that there is a
reasonable cause to believe, then the attachment is to be made under Section
8 of the TNPID Act. Based on certain vagueness, the accused cannot be
allowed to escape from the clutches of law or the interest of the depositors
cannot be diluted.
10. In the present case, the subject property was transferred after the
registration of the criminal case by the Power Agent. Thereafter, 5th and 6th
respondent sold the property to the 7th respondent. 7th respondent settled
the property in favour of her son, who is the 8th respondent herein. Further,
the sale consideration was not utilized for the purpose of repayment of the
depositors. Thus, the transfer cannot be held as bona fide and there is a
reasonable cause to arrive a conclusion that the transfer was made not in
good faith, more so, to defraud the depositors. This being the facts and
circumstances, the trial Court has committed an error in making a finding
that the purchasers are the bona fide purchasers. Even in such cases, the
transfer of property is made by the Financial Establishments and such
transfer was not made in good faith, then the properties are to be attached. If
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at all the respondent Nos.5 to 8 are willing to raise the attachment, they are
at liberty to approach the Special Court by filing an appropriate application
and the attachment may be raised only in lieu of security and the security
must be to the satisfaction of the Special Court.
11. With these observations, the judgment and decree dated
28.10.2015 passed in O.A.No.84 of 2010 is set aside and the Civil
Miscellaneous Appeal stands allowed. No costs. Consequently, connected
miscellaneous petition is also closed.
01.04.2021
ssb
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
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C.M.A.No.118 of 2021
S.M.SUBRAMANIAM, J.
ssb
To
The learned Judge, Special Court for TNPID Cases, Chennai.
C.M.A.No.118 of 2021
01.04.2021
https://www.mhc.tn.gov.in/judis/
