Punjab-Haryana High Court
Cfm Asset Reconstruction Private ... vs State Of Punjab And Another on 3 April, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
Neutral Citation No:=2024:PHHC:045544
2024:PHHC:045544
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-15931-2024 (O&M)
Date of Decision: 03.04.2024
CFM Asset Reconstruction Private Limited ..................Petitioner
Versus
State of Punjab & another ................Respondents
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present: Mr. Akshay Bhan, Senior Advocate, with
Mr. Suvir Tandon, Advocate, for the petitioner.
GURVINDER SINGH GILL, J.
1. The petitioner seeks quashing of FIR No.23 dated 20.03.2024 registered at
Police Station Punjab Agriculture University, Police Commissionerate
Ludhiana, under Sections 420, 465, 467, 468, 471, 120-B IPC and Section
82 of the Registration Act (Annexure P-23) and all consequential
proceedings emanating therefrom.
2. Before proceeding to refer to the allegations in FIR, it will be appropriate to
state a few facts, as may be discerned from perusal of this petition. It is
borne out that in the year 2012, M/s Venus Texspin Limited (for short - 'the
Company') availed credit facility from the Union Bank of India (for short -
'the Bank'); that the said Company was engaged in the business of Textile
Industry; that respondent No.2 Sanjay Gupta/complainant was a co-sharer in
the company; on 31.01.2016, the Bank declared the loan account of the
Company as a Non Performing Asset (for short - 'NPA'); resultantly, the
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Company was called upon to pay its dues or face proceedings under the
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest (SARFAESI) Act, 2002; that a Demand Notice dated
05.02.2016 under Section 13 (2) of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 was issued
and symbolic possession of the secured asset assumed under Section 13 (4)
of the Act, 2002, on 11.04.2016; that on 24.04.2018, the Company's debt
was assigned to the petitioner (hereinafter referred to as 'the Financial
Creditor'). The petitioner CFM Asset Reconstruction Company is thus, an
assignee of the Bank in view of the Assignment Agreement dated
24.04.2018 (Annexure P-1). The petitioner CFM-ARC had arrived at a
settlement with respondent No.2 and other co-sharers/Directors on
18.09.2018 (Annexure P-2).
3. On an earlier occasion, when the petitioner was proceeding to sell the
collateral security i.e. the mortgaged property, respondent No.2 Sanjay
Gupta had approached this Court by way of filing a writ petition i.e. CWP-
18377-2021, which was disposed off on 16.09.2021 by passing the
following order:
"The guarantor is assailing the action of the secured creditor in proceeding
to sell the collateral security, i.e. mortgaged property of the guarantor by
way of private treaty without consent of the guarantor and at a price, which
is much lower than the valuation reports.
Notice of motion for 28.10,2021.
Mr. Charanjiv Singh Pasricha, Advocate, appears and waives off notice on
behalf of sole respondent.
Let the reply by way of affidavit be filed by the next date of hearing.
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It is ordered that any action qua the property in question shall be subject to
the decision of the present writ petition."
4. The FIR in question was lodged at the instance of respondent No.2 Sanjay
Gupta and Avinisha Gupta, wherein it is stated that they had been running a
joint family business with their brother Ajay Gupta. However, a dispute
arose with Ajay Gupta in the year 2021 leading to filing of a writ petition
before this Court i.e. CWP-18377-2021, wherein certain interim directions
were issued on 16.09.2021 to the effect that any action taken qua the
property in question i.e. Plot No.20, Garden Enclave, City South measuring
4082 square yards situated at Ayali Khurd, Tehsil & District Ludhiana,
would be subject to decision of the writ petition. Thereafter, the
complainant by moving an application apprised the revenue authorities i.e.
the Tehsildar (West) about the said order for the purpose of incorporating
the same in the revenue record. It is further the case of the complainant that
on 03.02.2023 appropriate directions were issued by the concerned Tehsildar
to the Patwaris to incorporate the entries with regard to order dated
16.09.2021 in the revenue record and rapat No.277 dated 08.02.2023 with
regard to the compliance was recorded. It is alleged that the accused,
however, forged the revenue record and removed the entries recorded vide
rapat No.277 dated 08.02.2023 with regard to order dated 16.09.2021 and
got executed a registered sale deed with respect to the property in question
on 15.02.2023.
5. Learned senior counsel appearing on behalf of the petitioner submits that it
is a case where the complainant having been declared a defaulter of loan
with respect to the accounts of Venus Texspin Limited and the said loan
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having been assigned to the petitioner-company being an Asset
Reconstruction Company of Union Bank of India and as such, sale, if any, of
the property in question has been made in discharge of its functions and
there is no mala fide in the same. Learned senior counsel submits that in any
case all such actions are protected under Section 32 of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 and consequently, lodging of an FIR is nothing, but an abuse of
process of law and that the complainant is trying all antics and is creating
hurdles for the purpose of realization of loan by sale of the property in
question. Learned senior counsel in order to hammer forth his aforesaid
submissions places reliance upon a judgment of Hon'ble Apex Court
reported as K. Virupaksha & another Vs. State of Karnataka & another, 2020
(4) SCC 440.
6. This Court has considered the aforesaid submissions and has also gone
through the judgment pressed into service on behalf of the petitioner.
7. A perusal of the FIR would show that specific and categoric allegations with
regard to tampering with the revenue record have been leveled so as to
facilitate the execution of the sale deed. The question as to whether any
omission of relevant entry is intentional or is just on account of oversight, is
a question of fact, which can only be ascertained on the basis of evidence
collected during investigation. It will not be out of place to mention that
while the writ petition i.e. CWP-18377-2021, wherein interim directions had
been issued on 16.09.2021, was disposed off on 31.07.2023 (Annexure P-
19), the public notices dated 26.05.2022, 23.06.2022 & 16.12.2022
(Annexures P-9, P-10 & P-12), though issued before withdrawal of writ
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petition, do not refer to any 'lis pendens'. In any case, this Court is not
expected to embark upon mini trial to return a finding on factual aspects.
8. As far as judgment pressed into service on behalf of the petitioner i.e. K.
Virupaksha's case (supra) is concerned, a perusal of the same shows that in
the cited case there is not even a whisper of any allegation pertaining to any
forgery. Section 32 of the SARFAESI Act certainly cannot be a protective
umbrella even in a case where criminal offences as serious as forgery are
alleged to have been committed, as in the present case. Thus, Section 32 of
the SARFAESI Act would not be attracted to the facts of the present case.
The matter is at its nascent stage of investigation, the FIR having been
lodged merely about fortnight back. Under these circumstances, this Court
does not find any ground to quash the FIR in question. The instant petition
is sans merit and is hereby dismissed.
03.04.2024 ( GURVINDER SINGH GILL )
Vimal JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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