Delhi District Court
Tasleem vs State And Ors on 22 November, 2023
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI.
CNR No. DLCT01-011886-2022
CR No. 445/2022
Tasleem
W/o. Sh. Wazir Ahmed
R/o. H. No. 2253/H, Mandir Wali Gali,
Shadipur, Patel Nagar, Delhi-18.
...... Revisionist
Vs.
1. The State
(Govt. of NCT of Delhi)
2. Bank of Baroda
Through its Manager/Authorize Person
Office at Ashok Vihar Branch,
30, Community Centre,
Ashok Vihar, Phase-I, Delhi-52.
3. Mr. Madhushudan Gupta
AGM of Bank of Baroda
Office at Ashok Vihar Branch,
30, Community Centre,
Ashok Vihar, Phase-I, Delhi-52.
...... Respondents
Date of institution of Revision : 20.08.2022
Date on which order reserved : 20.10.2023
Date on which order pronounced : 22.11.2023
CR No. 445/2022
Tasleem Vs. State & Ors. Page No. 1 of 12
ORDER
1. This is a revision petition u/s. 397 Cr. P.C. challenging the impugned order dated 18.05.2022 of the ld. M.M. Ms. Shivli Talwar (Central), vide which the application u/s. 156 (3) Cr. P.C. of the complainant was dismissed.
2. The brief facts of the case as per the revisionist are that R-2 bank had published a notice for auction of one room bearing private no.3 on 2nd floor without roof/terrace rights out of property bearing municipal no.5596 to 5598, 5621 to 5624, plot no. 34, ward no. XIV, situated at Basti Harphool Singh, Sadar Thana Road, Delhi-06 and the auction was fixed for 12.06.2018. The revisionist participated in the auction and became the successful bidder which was confirmed by R-2 bank through its e-mail ID. The revisionist deposited the entire amount of Rs.4,80,000/- with R-2 bank and the R-2 bank issued sale certificate, previous chain of property and possession receipt in favour of the revisionist and also handed over the key of the said property on 30.06.2018. It is alleged that R-2 bank handed over the peaceful and vacant possession of the aforesaid property to the revisionist. On 10.07.2018, the revisionist purchased stamp duty for execution of the sale deed and contacted R-3 who suggested to send the request through e-mail and the respondent requested for some time for execution of sale deed in favour of the revisionist. Thereafter, branch officer of the bank called the revisionist CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 2 of 12 and demanded previous chain of property and original possession receipt by stating that there is some correction required in possession receipt and believing his words, the revisionist handed over the previous chain of property and the original possession receipt to the respondent on 30.07.2018. The revisionist asked several times for return of the documents and for execution of sale deed but the bank did not give any proper reply. The revisionist filed a written complaint to the general manager of the bank regarding misleading and cheating on 03.08.2018 and also sent a written letter through speed post dated 08.08.2018 to R-3 for return of papers and for execution of sale deed but all in vain. It is further alleged that on 04.08.2018, when the revisionist visited the property, it was found to have been sealed by the respondents without any order of the Court. It is alleged that the belongings and goods of the revisionist were lying in that property i.e. Laptop, Desktop, LED and Microwave etc. It is alleged that the revisionist filed RTI and complaints to the police for initiating the action but no action was taken. It is alleged that R-2 and R-3 had grabbed the money of the revisionist and caused wrongful loss to him. It is alleged that R-2 and R-3 had wrongfully taken the documents i.e. previous chain of property and original possession receipt and they have committed the offence of cheating, forgery, criminal breach of trust, wrongful sealing and other offences. Therefore, the revisionist filed the complaint alongwith the application u/s. 156 (3) Cr. P.C. before the ld. Trial Court but CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 3 of 12 vide impugned order, the application u/s.156 (3) was dismissed and hence, the present revision petition has been filed by the revisionist.
3. It is contended by the ld. Counsel for the revisionist that the ld. Trial Court has failed to appreciate that the complaint filed by the revisionist discloses the commission of cognizable offences and the FIR is necessary for proper investigation. It is contended that the the ld. Trial Court has also failed to appreciate that R-2 and R-3 had taken the amount of Rs. 4.08 Lacs from the revisionist and issued the sale certificate, previous chain of property and possession receipt to the revisionist and thereafter, they handed over the keys of the property. It is further argued that after the issuance of sale certificate, the revisionist became the owner of the property but R-2 and R-3 had illegally taken the possession receipt and put their locks over the property illegally. It is argued that the respondents have sealed the property without the orders of the Court and police investigation is necessary as cognizable offences have taken place.
4. The Counsel for R-2 and R-3 submitted that the impugned property was mortgaged by the borrower but due to default, the account of borrower was classified as non performing asset and R-2 bank invoked the provisions of SARFAESI Act and R-3 took physical possession of the impugned property u/s.14 of SARFAESI Act and thereafter, auction was carried out on 12.06.2018 and the reserve price was fixed for Rs.4.8 CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 4 of 12 Lacs. It is submitted that during auction, the revisionist offered the reserve price and paid the same on 30.06.2018 and accordingly, R-3 issued and delivered sale certificate and possession of the impugned property to the revisionist on 30.06.2018. It is submitted that R-3 had not sought the consent of the borrower prior to the sale certificate and delivery of possession. It is further submitted that the borrower filed an S.A. u/s. 17 of SARFAESI Act challenging the sale before the Hon'ble DRT on the ground that the consent of the borrower was not obtained as the sale was at reserve price. It is submitted that on 23.07.2018, R-3 sought help of revisionist to hand over keys, sale certificate and all other documents to comply with the aforesaid provision of SARFAESI Act but the revisionist did not agree to the request of R-3 and as such the property was locked. It is further submitted that the revisionist has also filed an S.A. before the Hon'ble DRT u/s.17 of SARFAESI Act and therefore, two S.As are pending before the Hon'ble DRT in respect of the same issue. It is submitted that the issue involved is purely of civil nature and only the Hon'ble DRT has jurisdiction to adjudicate the issue as per SARFAESI Act. Ld. Counsel relied upon the following judgments :-
(a) Blue Coast Hotels Ltd. Vs. IFCI Ltd. & Another, dated 23.03.2016 &
(b) Jaganath Mahaprabhu LLP Vs. Jain Steel & Power Ltd. & Ors., decided on 30.03.2023.CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 5 of 12
5. In rejoinder, Counsel for revisionist argued that as per Rule 7 (2) of the Security Interest (Enforcement) Rules, 2002, once the auction purchaser paid the entire amount and the sale certificate is issued then the sale becomes absolute and the certificate of the sale so issued shall be prima facie evidence of title of the purchaser. It is argued that the bank officer has dishonestly misappropriated the said property and had put the locks over the said property illegally, thereby, misusing his official powers. It is further argued that there is no provision in SARFAESI Act which bars the filing of criminal complaint u/s. 156 (3) Cr. P.C. It is further argued that the consent of the borrower is not necessary, if the sale is confirmed at "reserve price". It is further argued that the consent is only required as per the proviso to Rule 9 (2) of Security Interest (Enforcement) Rules, 2002 only when the property is sold at a an amount lower than the reserve price. To support his arguments, ld. Counsel relied upon the judgments in case titled as Varghese Ukken v. State Bank of India, 2010 SCC OnLine Ker 4745 and Mahipal Singh Yadav vs. Union Bank of India, (2022) 1 HCC (Del) 292 and Rakesh Birani (D) Through LRs vs. Prem Narain Sehgal & Anr., Civil Appeal No. 3156/2018.
6. This Court has heard the rival contentions from both the sides and has gone through the judicial record.
7. It is settled law that where the complaint discloses commission of cognizable offence, FIR must be registered. If CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 6 of 12 the police declines to register an FIR, it is open to the complainant to approach the Magistrate u/s. 156 (3) Cr. P.C. for registration of complaint. Upon receiving any such application, the Magistrate may either direct the registration of FIR or he may proceed to examine the witnesses of the complainant u/s. 200 Cr. P.C. instead of directing an investigation u/s. 156 (3) Cr. P.C. The Magistrate has wide powers u/s. 156 (3) Cr. P.C. which ought to be exercised judicially towards meeting the ends of justice.
8. The Hon'ble High Court of Delhi in Subhkaran Laharuka and Anr. Vs. State and Anr., MANU/DE/1646/2010 laid down the guidelines for subordinate Courts for the procedure to be followed while dealing with the application u/s. 156 (3) Cr. P.C.
9. It is needless to mention that the Magistrate should be satisfied whether the direction of police investigation is necessary for collection of evidence which is neither in the possession of the complainant nor which can be produced by the witnesses on being summoned at the instance of the complainant or if the matter is such that which calls for investigation by a State agency, the ld. Magistrate may order registration of FIR u/s. 156 (3) Cr. P.C.
10. In the present case, it is not in dispute that the revisionist was the successful auction purchaser of the property duly auctioned by the R-2 and R-3 under the provisions of SARFAESI Act and the sale certificate confirming the sale CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 7 of 12 was issued by R-2 and R-3 to the revisionist. It is only thereafter, the R-2 and R-3 on the premise that since the sale was confirmed at the "reserved price", the consent of the borrower was required under Rule 9 of Security Interest (Enforcement) Rules, 2002, put locks upon the property thereby impinging upon the rights of the revisionist, which led to the filing of the complaint u/s. 156 (3) Cr. P.C. before the ld. MM by the revisionist and after dismissal of the same, led to the filing of the present revision petition.
11. At this juncture, it is important to note that once the R-2 and R-3 had confirmed the sale by issuing the sale certificate in favour of the revisionist being the successful auction purchaser, the sale became absolute and the rights accrued in favour of the revisionist. Rule 7 (2) of the Security Interest (Enforcement) Rules, 2002 provides as follows:-
"(2) On payment of sale price, the authorized officer shall issue a certificate of sale in the prescribed form as given in Appendix III to these rules specifying the movable secured assets sold, price paid and the name of the purchaser and thereafter the sale shall become absolute.
The certificate of sale so issued shall be prima facie evidence of title of the purchaser."
12. The SARFAESI Act or the Security Interest (Enforcement) Rules do not provide for any procedure for taking back the possession of the property which has been duly sold in auction and possession been handed over. The putting of the locks upon the property for which the sale was made absolute and possession been handed over by the bank, infers CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 8 of 12 that the R-2 and R-3 have prima facie exceeded and misused their powers given under Sarfasi Act.
13. Though R-2 and R-3 have taken shelter under Rule 9 of Security Interest (Enforcement) Rules, 2002, on the ground that consent of the borrower was required since the sale was at reserve price, however such ground seems baseless in view of the observations of the Hon'ble Supreme Court in Varghese Ukken case (Supra) which are very much relevant on the issue being delineated below for ready reference :-
"26. The scheme of the statute clearly reveals that, .............. There may be some other circumstances, like that the amount due to be realized may be far in excess than the reserve price of the property concerned, which also contemplates the situation where concurrence of the secured creditor is necessary, though the sale price is higher than the reserve price. The consent of the 'borrower/defaulter' becomes relevant only when the sale price happens to be lower than the reserve price, with regard to which, no prior intimation can be presumed as available to the borrower. The position is different with regard to the factum of 'reserve price', which is very much known to the borrower/defaulter right from the beginning and the only stipulation as contained in Rule 8 (6), as to the contents of the sale notification, is the stipulation of the 'reserve price' under sub clause (c), which is stated as the price below which, the property may not be sold. In other words, in view of the W.P. (C) No. 37498/2007 conspicuous absence of any specific bar in the Statute, it is very much possible to have the property sold for a 'lesser price' for which concurrence of the borrower defaulter is also simultaneously stipulated, alongwith the consent of the second creditor, which is the idea behind the 'second provisi' to Rule 9 (2)."
14. In Mahipal Singh Yadav case (Supra), it was observed as follows:-
CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 9 of 12"31. It does not stand to reason that when, .................... To read the second proviso to Rule 9(2) to mean that even for confirmation of a sale on the reserve price (being the highest received bid price), the consent of the borrower is must, would go against the concept of fixation of a reserve price. As is clear from a reading of Rule 8 aforesaid, reserve price is the price below which the property may not be sold. The second proviso to Rule 9(2) would become relevant and be attracted, only if the case is not covered by the first proviso, namely, where the amount offered towards sale price is equal to, or more than the reserve price specified under sub-rule (5) of Rule 8. It is only when the offered sale price is lower than the reserve price, that the second proviso comes into play, and in such a situation, without the consent of the borrower and the secured creditor, the authorized officer cannot confirm the sale."
15. From the abovementioned precedents, it is amply clear that no consent of the borrower is required if the sale is at the reserve price and the consent of the borrower is required only when the sale is below the reserve price. In the present case, the sale was at the reserve price and the possession was already handed over to the auction purchaser, thus, there was no question of obtaining consent of the borrower. The action of R-2 and R-3 of putting locks upon the impugned property, therefore, seems to be prima facie illegal. After the confirmation of sale and handing over of the possession of the property, the rights accrued in favour of the auction purchaser which cannot be defeated by the improper action of R-2 and R-3 of putting locks upon the impugned property. Hence, the action of R-2 and R-3 seems to be in excess and misuse of their powers provided under the SARFAESI Act and as such prima facie wrong seems to have been committed by R-2 and CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 10 of 12 R-3.
16. Now, coming to the question whether the registration of FIR in the present case is necessary or not, in this context, it is to be noted that the dispute is with regard to the possession of the property which was the subject matter of auction sale and misuse or exceeding of the powers of the bank and its official. The evidence is documentary in nature which is within the reach of the complainant and which can be easily summoned by the Court in evidence. The identity of the accused persons is also not in dispute. Both the parties have also approached the Hon'ble DRT on the same issue and the Hon'ble DRT is already seized of the matter, the decision of which is likely to put the controversy at rest.
17. Therefore, this Court is of the considered view that police intervention is not necessary in the present case. The revisionist can very well prove his case by leading the evidence in the Court and the Court can also order investigation u/s. 202 Cr. P.C. if the need arises.
18. For the foregoing reasons, the impugned order passed by the ld. Trial Court is upheld and the revision petition is hereby dismissed.
19. Copy of this order alongwith the TCR be sent to the ld. Trial Court.
20. Copy of this order be given dasti to both the parties.
CR No. 445/2022 Tasleem Vs. State & Ors. Page No. 11 of 1221. Revision file be consigned to Record Room.
Digitally signed by SUSHIL SUSHIL ANUJ
Announced in the open ANUJ TYAGI
Date: 2023.11.28
Court on 22nd November, 2023 TYAGI 15:32:42 +0530
(SUSHIL ANUJ TYAGI)
ASJ-04/CENTRAL/DELHI
22.11.2023(VR)
CR No. 445/2022
Tasleem Vs. State & Ors. Page No. 12 of 12