Calcutta High Court (Appellete Side)
Mr. Khandakar Oliul Islam vs The State Of West Bengal And Ors on 7 March, 2022
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
07.03.2022
Court No.13
Item No.22
sp
WPA 2565 of 2022
Mr. Khandakar Oliul Islam
Vs.
The State of West Bengal and Ors.
(Through Video Conference)
Mr. Stadeep Bhattacharya,
Mr. Pratik Majumder
... For the Petitioner.
Ms. Jayeeta Sinha,
Mr. Sandip Mondal
... For the State.
Mr. Avishek Guha,
Ms. Akansha Chopra
... For the Respondent No.5.
The writ petitioner is aggrieved by the possession having been taken under Section 14 of the SARFAESI Act, 2002 of the secured assets by the District Magistrate, South 24 Parganas, situated and lying at 42B, First Floor, Braunfeld Lane, Mominpore, District- 24 Parganas (South), West Bengal, Kolkata - 27.
The bank is still holding the possession. It appears from the record that by an order dated July 24, 2018, the District Magistrate, South 24 Parganas has passed orders under Section 14 of the SARFAESI Act, 2002 directing one Naziruddin Sarkar, WBCS (Exe) to take possession of the secured assets and hand over the same to the bank with the help of police. The said order, for some reason, was not pursued.
2By a further order dated July 26, 2019, the District Magistrate, South 24 Parganas passed a further order authorizing one Pranabesh Mondal, WBCS (Exe) to take possession in place and stead of Naziruddin Sarkar. In the order, very strangely it was recorded that it would be valid only for three months.
The bank, by a communication dated November 15, 2019, had prayed for extension of validity of the order beyond three months.
Surprisingly, the District Magistrate, South 24 Parganas, for some unexplained reasons, sought to change, alter, interpolate and doctor the order dated July 26, 2019 and extend the validity thereof to 9 months. This bank did not pursue the office of the District Magistrate, South 24 Parganas thereafter until September 16, 2021 when it was requested that the secured assets should be handed over under Section 14 of the SARFAESI Act, 2002 in terms of the orders already passed by his office.
By a communication dated October 4, 2021, the office of the District Magistrate, South 24 Parganas directs one Maswood Alam, WBCS (Exe.) to take possession of the secured assets in place and stead of Pranabesh Mondal since the matter has been transferred. Possession of the secured assets has been handed over to the bank on February 10, 2021. 3
The writ petitioner, however, had approached the Debt Recovery Tribunal challenging the order dated July 26, 2019, which was dismissed.
The entire proceedings before the District Magistrate, have been challenged before this Court.
This Court finds in no uncertain terms that the office of the District Magistrate, South 24 Parganas had doctored and interpolated the order dated July 26, 2019. There is no valid or lawful explanation as to why this has been done. By reason of such interpolation, the District Magistrate, South 24 Parganas has sought to falsify his own records and alter the same without due process of law.
Counsel for the ICICI bank would argue that the possession having been handed over to the bank of the assets under the last order dated October 4, 2021, which refers to the original order dated July 24, 2018. The discrepancy that has occurred in the meantime is of no consequence. The entire proceedings need not be affected by reason of the said interpolation.
It is also argued that even assuming that there have been acts and omissions by the office of the District Magistrate, the bank should not suffer for the same and the possession of the secured assets with the bank should not be disturbed.
Having carefully considered the rival submissions of the parties, this Court is of the view that the 4 measures prescribed under the SARFAESI Act, 2002 and its Rules are indeed draconian in nature. The said Act confers sweeping, wide and extreme powers on a secured creditor to enforce its security to realize lawful dues. Such draconian laws call for strict interpretation.
The purpose or reason behind the office of the District Magistrate having doctored or interpolated its own orders, is not before this Court. This Court is not concerned with the same. The matter is subject to any enquiry that may be conducted by the State. However, one cannot lose sight of the fact that the beneficiary of the entire order was the ICICI bank. It is at the instance of the bank that the District Magistrate, South 24 Parganas was activated under Section 14 of the SARFAESI Act, 2002. A person cannot be allowed to benefit from a wrong even if he may not be responsible for the same. The interpolation of documents has occurred at the hands of the office of the District Magistrate, South 24 Parganas. The bank cannot be allowed to benefit from such act committed by a public authority, that is ex facie illegal if not fraudulent.
Fraud unravels all.
In that view of the matter, the entire proceedings under Section 14 of the SARFAESI Act, 2002 conducted before the District Magistrate, South 24 Parganas being Memo No. 839 (4/RM) dated July 24, 2018 shall stand 5 quashed and set aside. The bank shall not take any further steps with regard to secured assets.
Let a copy of this order be sent to the Chief Secretary of the State by the registry for appropriate action.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
(Rajasekhar Mantha, J.)