Delhi High Court - Orders
State Bank Of India Through: Sudhir ... vs Commissioner Of Police & Ors on 21 January, 2022
Author: Rajnish Bhatnagar
Bench: Rajnish Bhatnagar
(VIA VIDEO CONFERENCING)
$~70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1726/2021 AND CRL.M.A. 263/2022
STATE BANK OF INDIA THROUGH: SUDHIR KUMAR ASST.
GENERAL MANAGER & ORS. ..... Petitioner
Through: Mr. S L Gupta, Advocate with Ms.
Pragati Srivastava, Advocate.
versus
COMMISSIONER OF POLICE & ORS. ..... Respondent
Through: Mr. R. S. Kundu, ASC for the State
with SI Ravi Kumar, PS Barakhamba
Road.
Mr. Madhav Khurana, Ms. Divya and
Ms. Sayesha Suri, Advocates for R-3.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
% 21.01.2022
1. The present writ petition is filed by the petitioner under Article 226 of the Constitution of India read with Section 482 Cr.P.C. seeking following reliefs:
A. To call for the records of the Cr. Case no. 5714 of 2021 Titled as M/s LR Builders Pvt. Ltd. Vs Sudhir Kumar and Ors (PS. Barakhambha Road) and to set aside the order dated 02.09.2021.
B. To hold that the right to retain the Original Title Deeds of the Petitioner Bank should not be interfered and the Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:16.02.2022 19:37 (VIA VIDEO CONFERENCING) Petitioner Bank be facilitated to recover its dues. C. To order the Respondent no. 1 & 2 to not to unnecessary harass the officers of the Petitioner Bank. D. Any other order or orders as this Hon'ble Court may deem fit and proper be also passed in favour of the Petitioners and against the Respondents.
2. It is submitted by counsel for the petitioner that the powers available to the Magistrate under Section 156(3) of Cr.P.C. are very limited and the Magistrate has no power to pass the order directing the IO to take the possession of the Original Title deeds which are highly valuable. It is further submitted that if the Respondent no. 3 had disclosed before the learned MM all true facts regarding his liability of Rs. 145.48 crores towards the petitioner-bank and the restrain order dated 19.04.2021 passed by the Hon'ble Debts Recovery Tribunal-II Delhi in OA no. 364 of 2016 for attachment of the property then the learned MM would not have passed the part of the order dated 02.09.2021 directing IO to take documents. It is further submitted that petitioner-bank has the Banker's Lien under Section 171 of the Indian Contract Act to retain the Title Deeds towards its unpaid due. It is further submitted that the petitioner is holding the Title Deeds as security for the recovery of its huge dues and in any case the Title Deeds of the property reaches to the hands of the respondent no. 3, who has stood guarantor to the loan, the same can be misused and the petitioner-bank will not be in the position to recover the huge public money. It is further submitted by the counsel for the petitioner that the facts of the case Sakiri Vasu vs State of UP (2008) 2 SCC 409 decided by the Hon'ble Supreme Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:16.02.2022 19:37 (VIA VIDEO CONFERENCING) Court of India, are not applicable to the facts of the present case.
3. Counsel for the petitioner relied upon the following judgments to contend that petitioner being a bank holds a banker's lien over the property.
i. Raj Kumar & anr. Vs Syndicate Bank (2016) SCC Online DEL 4726 ii. Syndicate Bank vs Vijay Kumar (1992) 2 SCC 330 iii. Sadhna Gupta vs R.0 Gupta 2009 (112) DRJ 376 iv. State Bank of India vs Diwan Ji Buildwell (India) Pvt. Ltd.
111 (2004) DLT 267 v. The Indian Cotton Company Ltd. Vs Hury Poonjoo AIR 1937 BOM. 39 vi. R.D Saxena vs Bairam Prasad Sharma (2000) 7 SCC 264 vii. R K Agencies Ltd. Vs Central Bank of India AIR 1992 CAL.
193viii. State Bank of India vs Jayanthi, Aarthi Lakshmi & Sanjai Balaji AIR 2011 MAD. 179.
4. On the other hand, it is submitted by the learned ASC that no FIR has been registered till date, therefore as of now no documents are required by the police. It is further submitted that the purpose of these directions by the learned MM to handover the documents to a non-interested party is only to secure the possession of the title documents. Counsel for respondent no. 3 has submitted that the petitioner-bank has no locus to file the petition. He further referred to paragraph no. 6 and 7 of the ATR filed by the police in Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:16.02.2022 19:37 (VIA VIDEO CONFERENCING) court of learned MM.
5. In the instant case, application under Section 156(3) Cr.P.C. filed by respondent no. 3 is pending before Metropolitan Magistrate and till date no directions has been passed by Metropolitan Magistrate for registration of FIR. On my queries from the learned ASC, it is submitted that there are no allegations of cheating and fraud in regard to the documents in question upon which the petitioner-bank is claiming its lien. The petitioner-bank is aggrieved by the order dated 02.09.2021 passed by Metropolitan Magistrate which reads as follows:-
"Ld. Counsel for complainant has prayed before this Court to give directions to the police to take the possession of original title deeds of the property of the complainant (herein) and keep it in a safe custody till the final disposal of the instant complaint by this Hon'ble Court. She has further submitted that this Court has implied power under Section 156 (3) Cr.P.C. to give directions to police to take the custody of original title deeds of property.
The Hon'ble Supreme Court of India in the judgment Sakiri Vasu vs State of U.P. & Ors. decided on 07.12.2007 has held as under:
"In view of the abovementioned legal position, we are of the view that although Section 156 (3) is very briefly worded, there is an implied power in the Magistrate under Section 156 (3) Cr.P.C. to order registration of a criminal offnce and / or to direct the officer in charge of Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:16.02.2022 19:37 (VIA VIDEO CONFERENCING) the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156 (3) Cr. P. C., we are of the opinion that they are implied in the above provision."
In this case, no comprehensive ATR has been filed till yet. Today, status report has received in which the IO has requested that some more time is required to file comprehensive ATR. Complainant in this case has apprehension that the original title deeds of property may be destroyed or used for ulterior purposes. In view of these facts and above stated judgment of Hon'ble Supreme Court of India, I am of the opinion that for proper investigation of this case, IO must take the custody of original title deeds of property in his custody till the final disposal of the complaint.
In view of above discussion, application of complainant seeking interim relief is allowed and concerned IO is hereby directed to take the custody of original title deeds of the property and keep it in a safe custody till the final disposed of the complaint. Put up for compliance report and filing of comprehensive ATR by IO on 20.09.2021. Due to Covid-19, to maintain social distancing, a longer date is given."
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:16.02.2022 19:37(VIA VIDEO CONFERENCING)
6. Main contention of the counsel for the petitioner is that the respondent no. 3 has stood as guarantor to the loan taken by M/s PP Jewellers (Exports) & M/s PP Jewellers (Delhi) to the tune of Rs.145.48 Crores. It has also come on record that no stay has been granted by DRT-II where application for recovery of the amount has been filed by the petitioner bank.
7. Vide order dated 02.09.2021, Metropolitan Magistrate directed the IO to take custody of the property documents of respondent no. 3 who is the guarantor to the loan without assigning any reasons for the same. It is also not the case that any fraud or forgery has been committed in regard to documents, order in respect of which has been passed by Metropolitan Magistrate. In the order dated 02.09.2021, Metropolitan Magistrate has observed that the complainant i.e respondent no. 3 herein has apprehension that original title deeds may be destroyed or used for ulterior purpose but Metropolitan Magistrate without due application of mind and assigning proper reason directed the IO to take the custody of the original documents, totally disregarding the fact that bank is retaining the documents as a security for a loan of Rs.145.48/- Crores and why the bank officials would destroy or use those documents for ulterior purposes as apprehended by respondent no. 3 and invite legal action against them. The petitioner bank being the secured creditor has lien over the property as mentioned in the judgment of Raj Kumar & Anr. V. Syndicate Bank (2016) SCC Online DEL 4726.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:16.02.2022 19:37(VIA VIDEO CONFERENCING)
8. Therefore, this part of the order of Metropolitan Magistrate wherein it has been directed that documents be handed over to IO is set aside. And in case IO requires those documents for any investigation purposes, he can move the court for such permission or he can approach the bank manager for investigation in regard to property documents in question after citing valid reason for requiring the same.
9. Counsel for respondent no. 3 during the course of arguments has laid much stress on paragraph no. 6 and 7 of the ATR filed by IO before Metropolitan Magistrate. As far as this contention of the counsel for respondent no. 3 is concerned same is irrelevant at this stage and arguments in this regard are alien to the present petition.
10. With these observations petition is disposed of. All pending applications (if any) are also disposed of.
RAJNISH BHATNAGAR, J JANUARY 21, 2022 AK Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:16.02.2022 19:37