Bombay High Court
Manindra Chandrasen And Anr vs Union Bank Of India And Ors on 10 March, 2017
Author: A.S.Gadkari
Bench: R.M. Borde, A.S. Gadkari
1 /38 WP-5252-2015
Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETTION NO.5252 OF 2015
WITH
CIVIL APPLICATION No.3188 of 2015
1 Mahindra Chandrasen, son of Late
Shri.Chandrasen, adult, Indian Inhabitant
having address at flat No.202,
Surya Apartments, 193,Saket Nagar,
Indore 452018.
2 Sharad Chandrasen, son of Late
son of lte Shri. Chandrasen, lso adult,
Indian Inhabitant, having address at 49,
Manishpuri, Indre 452018.
...Petitioners.
vs.
1 Union Bank of India, a body Corporate
constituted under the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970 having
their Head Office at 239, Vidhan Bhavan Marg,
Mumbai 400 021. and having their Branch amngst
and other places at Andheri (East) Bench, Sir P.M.Road,
Andheri (E), Mumbai 400069.
2 Rajat Infrastructure Private Ltd.,
a company incorporated under the
Companies Act 1956 having Registered Office
at 12/2,RNT Marg, Chetak Centre, Indore 452001,
Madhya Pradesh and Mumbai Office at A053,
Road No.1, MIDC Industrial Area, Marol,
Andheri (E), Mumai 400 093.
3 Zoom Developers Private Limited,
company incorporated under the
Companies Act, 1956 having project office
at A-53, Road No.1,MIDC Industrial Area,
Marol, Andheri (East),
Mumbai 400 093.
4 Zoom Vallabh Steel Limited,
also a Company incorporated under the
Companies Act, 1956 having its Project
Office at -53,Road No.1, MIDC
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Industrial Area, Marol, Andheri(E),
Mumbai 400 093.
WITH
CIVIL APPLICATION NO.2088 OF 2016
IN
WRIT PETITION NO.5252 OF 2015
Rajat Infrastructure Private Ltd.,
a company incorporated under the
Companies Act 1956 having Registered Office
at 12/2,RNT Marg, Chetak Centre, Indore 452018,
Madhya Pradesh and Mumbai Office at A-53,
Road No.1,MIDC Industrial Area, Marol,
Andheri (E), Mumai 400 093.
..Applicant (Org.) Respondent No.2
IN THE MATTER BETWEEN
1 Mahindra Chandrasen, son of Late
Shri.Chandrasen, adult, Indian Inhabitant
having address at flat No.202,
Surya Apartments, 193, Saket Nagar,
Indore 452018.
2 Sharad Chandrasen, son of Late
Shri. Chandrasen, also adult,
Indian Inhabitant, having address at 49,
Manishpuri, Indre 452018.
...Petitioners.
VS.
1 Union Bank of India, a body Corporate
constituted under the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970 having
their Head Office at 239, Vidhn Bhavan Marg,
Mumbai 400 021. and having their Branch amongst
and other places at Andheri (East) Brnch, Sir P.M. Road,
Andheri (E), Mumbai 400069.
2 Rajat Infrastructure Private Ltd.,
a company incorporated under the
Companies Act 1956 having Registered Office
at 12/2,RNT Marg, Chetak Centre, Indore 452001,
Madhya Pradesh and Mumbai Office at A053,
Road No.1,MIDC Industrial Area, Marol,
Andheri (E), Mumbai 400 093.
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3 /38 WP-5252-2015
3 Zoom Developers Private Limited,
company incorporated under the
Companies Act, 1956 having project office
at A-53, Road No.1,MIDC Industrial Area,
Marol, Andheri (East),
Mumbai 400 093.
4 Zoom Vallabh Steel Limited,
also a Company incorporated under the
Companies Act, 1956 having its Project
Office at -53,Road No.1, MIDC
Industrial Area, Marol, Andheri(E),
Mumbai 400 093.
..Respondents.
WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 54 of 2015
Union Bank of India, a body Corporate
constituted under the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970 having
their Head Office at 239, Vidhan Bhavan Marg,
Mumbai 400 021. and having their Branch amongst
and other places at Andheri (East) Branch, Sir P.M. Road,
Andheri (E), Mumbai 400069.
Through Mrs. Sreekala L.K.,
the Assistant General Manager
and the Authorized Officer. ...Petitioner.
Vs.
1 Smt. Nirmala Devi,
wife of late Shri.Chandrasen,
Aged about 88 years, resident of 7,
Manoraaganj, Opposite DIG Bunglow,
A.B.Road, Indore,M.P.
2 Mahindra Chandrasen, son of Late
Shri.Chandrasen, adult, Indian Inhabitant
having address at flat No.202,
Surya Apartments, 193, Saket Nagar,
Indore 452018.
3 Sharad Chandrasen, son of Late
Shri. Chandrasen, also adult,
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4 /38 WP-5252-2015
Indian Inhabitant, having address at 49,
Manishpuri, Indre 452018.
4 Rajat Infrastructure Private Ltd.,
a company incorporated under the
Companies Act 1956 having Registered Office
at 12/2,RNT Marg, Chetak Centre, Indore 452001,
Madhya Pradesh and Mumbai Office at A053,
Road No.1,MIDC Industrial Area, Marol,
Andheri (E), Mumai 400 093.
5 Zoom Developers Private Limited,
company incorporated under the
Companies Act, 1956 having project office
at A-53, Road No.1,MIDC Industrial Area,
Marol,Andheri (East),
Mumbai 400 093.
6 Zoom Vallabh Steel Limited,
also a Company incorporated under the
Companies Act, 1956 having its Project
Office at -53,Road No.1, MIDC
Industrial Area, Marol, Andheri (E),
Mumbai 400 093.
...Respondents.
Mr. Mustafa Doctor, Sr. Advocate along with Mr. Rohit Gupta and Mr.
Vinod Kothari and Pinaz Merchant i/by T.N.Tripathi & Co. and M/s.
Apex Law Partners for the Petitioners in W.P.No.5252/2015 and for
Respondent Nos. 2 and 3 in W.P. No.54/2015 and for Applicants in
CAW No.3188 of 2015.
Mr. Vikram Chaudhari,Sr. Advocate along with Mr. Harshit Seth,
Mr.Rishi Senghal, Ms.Akshata Chavan, Mrs. Shashikant Kadam,
Mr.Satraj Singh Gill, Ms. Pragati Sharma i/byR.Rmesh for Respondent
No.2 inW.P.No.5252/2015 and for Applicant in CAW No.2088 of 2016.
Ms. Rajani Iyer, Sr. Advocate with Mr. Nainesh Amin for Respondent
No.1 in WP No.5252/2015 and for Petitioner in W.P. No.54/2015 and
for Respondent No.1 in Civil Application No.2088/2016 and Civil
Application No.3188/2015.
CORAM : R.M. BORDE AND
A.S. GADKARI, JJ.
DATE : Reserved on 24th January,2017
Pronounced on 10th March, 2017
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JUDGMENT( Per A.S.Gadkari, J.):
1) The petitioners in Writ Petition No.5252 of 2015 have questioned the correctness of that part of the Judgment and Order of the Debt Recovery Appellate Tribunal dated 14.10.2014 passed in Appeal No.206 of 2012 to the extent of setting aside the order dated 7.9.2011 passed by the Debt Recovery Tribunal-III, Mumbai in Securitization Application No.107 of 2011, thereby denying the restoration of possession of the suit property and for other consequential reliefs. The applicant in Civil Application No.2088 of 2016 is respondent No.2 in W.P.No.5252 of 2015 and by the said application the applicant/respondent No.2 has prayed that, an action as contemplated under Section 340 of the Code of Civil Procedure may be initiated against the petitioners in Writ Petition No.5252 of 2015, for the offences under Section 177, 182, 193, 199 and 209 of the Indian Penal Code. Writ Petition No.54 of 2015 has been filed by the Bank, who is respondent No.1 in W.P. No.5252 of 2015,praying for an appropriate writ, order or directions to quash and set aside and to expunge that part of the impugned orders dated 7.9.2012 and 14.10.2014 passed by the Debt Recovery Tribunal-III, Mumbai and Debt Recovery Appellate Tribunal, Mumbai, respectively, holding that the petitioner bank had taken forcible possession of the secured assets and for quashing the findings and remarks made in Para Nos. 10 and 11 of the Judgment and Order dated 14.10.2014 passed by the Debt Recovery Appellate Tribunal, Mumbai.
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2) Heard the learned counsel for the respective parties at length and also perused the entire record made available before us minutely and in pursuance of the directions issued by the Hon'ble Supreme Court of India dated 29.8.2016 in Special Leave to Appeal No.8484 of 2016, the petitions are taken up for final hearing.
3) For the sake of brevity, hereinafter, the property in question will be termed as "Suit property; the petitioners in Writ Petition No.5252 of 2015 will be termed as "Lessees"; the respondent No.1 in Writ Petition No.5252 of 2015 and petitioners in Writ Petition No.54 of 2015 will be termed as "Bank"; the respondent No.2 in Writ Petition No.5252 of 2015 and applicant in Civil Application No.2088 of 2016 and respondent No.4 in Writ Petition No.54 of 2015 will be termed as "Respondent No.2-Rajat Infrastructure"and the respondent Nos. 3 and 4 in Writ Petition No.5252 of 2015 and respondent Nos. 5 and 6 in Writ Petition No.54 of 2016 will be termed as "Respondent No.3 and 4 borrowers" in the following paragraphs.
4) The facts which can be enumerated from the record and are necessary to decide the present petition, can briefly be stated as under:-
a) The State of Holkar (Maharaja Shri. Holkar) granted an Inami land admeasuring 2.18 acres equivalent to 10,464 sq. yards, situated at 7, Manoramaganj, Indore, Madhya Pradesh ( the suit property) in the year 1910 to Shri.Suryanarayanji Shastri Dravid. On 13.11.1920 Shri. Suryanaraynji Dravid leased out the said property ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 :::
7 /38 WP-5252-2015 to Shri. Amolakchand Ajmera. That, on 13.1.1934 Shri. Amolakchand Ajmera transferred the lease in favour of Shri. Ayodhya Prasad Bhargav. By a registered deed dated 2.9.1939 Shri. Ayodhya Prasad Bhargav transferred his lease hold interest in the suit property in favour of Shri. Swayambar Lal for the residuary period which will be expiring on 1.9.2019. After acquiring the aforesaid property Shri. Swayambar Lal constructed bunglows and houses on the suit property. There are eight tenants in the said property occupying different houses and service quarters. The bungalows situated at the suit property were in actual physical possession and use of the petitioners. That, the property has ever since been in physical possession of the family members of Shri. Syamambar Lal till they were dispossessed from the suit property as stated herein below. After the death of Shri. Swayambar Lal, the leased hold rights of the suit property devolved on Smt. Nirmaladevi and the petitioners therein.
b) That by diverse sale deeds dated 24.10.1988, the Drvaid family sold its reversionary rights in the said property to respondent No.2. The sale deed dated 24.10.1988 expressly refers to the lease hold rights and the possession of the petitioners in the suit property, It further recites that, cost of improvement to the suit property being borne by the lessee. On 14.10.1994, the respondent No.2 approached the petitioners for development of the suit property and a Memorandum of Understanding was executed between the parties. ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 :::
8 /38 WP-5252-2015 The Memorandum of Understanding reiterates and confirmed that, the petitioners are occupying the suit property as lessees and will continue to remain in possession. That, the respondent No.2 will have no right to possession. It was further clearly agreed that Part A of the constructed premises will be handed over to the petitioners and only thereafter the petitioners will hand over the possession of the bunglow which they were occupying, to respondent No.2. It was also agreed that in the event of delay in construction, respondent No.2 will pay the compensation to the petitioners.
c) That, on 15.4.2005, the respondent No.2 mortgaged its interest in the suit property to respondent No.1 Bank to secure certain credit facilities which were granted to respondents No. 3 and
4. The petitioners are neither parties nor they were having any privy to the said mortgage. The leasehold rights of the petitioners are not the subject matter of the alleged mortgage.
d) As the respondent Nos. 3 and 4/borrowers, failed to repay the financial assistance provided to them by respondent No.1, on 25.10.2010 and 11.11.2010, respondent No.1 issued notices to respondent Nos. 3 and 4 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 (for short, the SARFAESI Act). The record reveals that respondent No.1 did not issue or serve any notice under the SARFASI Act, to the petitioners, simultaneously with respondent Nos. 3 & 4.
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e) That, on 12.2.2011, the respondent No.1 Bank addressed a letter as contemplated u/s. 13(2) of the SARFAESI Act, to the petitioners calling upon them to deliver the possession of the suit property. The said demand was made on the basis of a letter dated 1.4.2005 purportedly signed by the petitioners and their mother Smt. Nirmaladevi consenting to the alleged mortgage for the dues of respondent Nos. 2 and 3 and to deliver the possession of the suit property.
f) The petitioners immediately replied the said letter dated 12.2.2011 by their reply dated 18.2.2011 and denied having executed or signed the alleged letter dated 1.4.2005 and informed the bank, that the said letter is a forged, false and fabricated document. The petitioners also lodged their protest from delivering the possession of the said property to respondent No.1-bank.
g) The petitioners obtained a report from the handwriting exert on 22.2.2011 and thereafter on 26.2.2011 lodged a written complaint with the Palasia Police Station, Indore, Madhya Pradesh in respect of the alleged forged and false document dated 1.4.2005 and requested the concerned police to investigate the matter. The record further reveals that the petitioners also lodged a complaint with the Superintendent of Police, Indore about their signatures being forged in the purported letter dated 1.4.2005.
h) That, on 6.4.2011 the bank officers along with recovery agents and police personnel/Home guards, came to the suit property ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 10 /38 WP-5252-2015 and dispossessed the petitioners from their residential premises without their consent. It is the case of respondent No.1 bank that, in furtherance of letter dated 1.4.2005 the petitioners and their mother Smt. Nirmaladevi handed over the vacant and peaceful possession of the suit property to the Officers of respondent No.1 bank and a detailed panchanama to that effect dated 6.4.2011 has also been drawn.
i) That, the petitioners after taking appropriate legal advise from their Advocate at Jabalpur filed Securitization Application No.107 of 2011 before the Debt Recovery Tribunal-III, Mumbai on 12.4.2011 praying for quashing and setting aside the demand notices dated 25.10.2010 and 11.11.2010 under Section 13(2) of the SARFAESI Act and the measures for taking physical possession of the suit property on 6.4.2011 under Section 13(4) of the SARFAESI Act and also prayed for restoration of the possession of the suit property. The petitioners also prayed for compensation for the illegal act of the bank and for other consequential reliefs. The respondent No.1 bank filed its reply dated 5.5.2011 to the said S.A.No.107 of 2011 and opposed for grant of any reliefs. The respondent Nos. 2,3 and 4 also filed their reply on 10.5.2011 and opposed the said application of the petitioners.
j) It appears from the record that on the basis of the complaint lodged by the petitioners with Palasia Police Station,Crime NO.499/2011 came to be registered. It further appears from the ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 11 /38 WP-5252-2015 record that on the basis of the complaint lodged by respondent No.1 bank, CBI also initiated investigation and the crime registered with Palasia Police Station was also taken over by CBI for investigation. That, the pre-arrest bail applications for the offence under Sections 420, 467, 468,471 and 120B of the I.P.C. preferred by Vijay Choudhary, Biharilal B.Kejriwal and Mrs. Manjiri Vijay Choudhary-the Directors of respondent Nos. 2 to 4 came to be rejected by the High Court of Madhya Pradesh, Bench at Indore, by its order dated 17.11.2011, on the ground that, prima facie case is made out against the said applicants and looking to the seriousness of the offence and their involvement in the crime. It is also observed by the Madhya Pradesh High Court, that the said applicants adopted a novel method to dispossess the lessees by preparing the false and fabricated letter.
k) The petitioners filed W.P.No.3392/2012 in this Court for expediting the hearing of S.A.No.107 of 2011 which was pending on the file of Debt Recovery Tribunal-III, Mumbai. This Court by its order dated 30.4.2012 directed the Debt Recovery Tribunal to hear and decide the application of the petitioners expeditiously.
l) The Debt Recovery Tribunal-III, Mumbai by its judgment and order dated 7.9.2012 partly allowed the said S.A.No.107 of 2011, with directions to the bank to restore the possession of the suit property to the petitioners. The Debt Recovery Tribunal while allowing the said application has held that respondent No.2 has recognized the petitioners as lessees and the claim of the petitioners that they ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 12 /38 WP-5252-2015 were in possession and enjoyment of the property as lessees was approved by them. That, the petitioners being lessees cannot be thrown out of the premises unceremoniously, without due process of law. It has further held that the bank has taken physical possession of the property forcibly and the petitioners being lessees in possession of the property were entitled for restoration of possession.
m) The respondent bank, feeling aggrieved by the Judgment and order dated 7.9.2012 passed by the DRT-III, preferred an Appeal No.206/2012 before the Debt Recovery Appellate Tribunal (DRAT), Mumbai. The DRAT by its judgment and order dated 14.10.2014 was pleased to dispose of the said appeal by holding that, in view of the Judgment of the Supreme Court in the case of Harshad Goverdhan Sondagar vs. International Assets Reconstruction Co. Ltd. and ors. reported in (2014) 6 S.C.C. 1 the possession cannot be handed over to the tenant/licensee and therefore, that part of the order passed by the DRT directing restoration of possession is set aside. The DRAT has categorically held that any how the forcible possession has been taken on 6.4.2011 and therefore, in view of Section 29 of the SARFAESI Act the petitioners may file application before the Competent Authority not below the rank of Chief Judicial Magistrate for violation of the provisions of the said Act. The DRAT has further issued certain directions in Para 11 of the said Judgment and Order dated 14.10.2014.
n) The record further reveals that Smt. Nirmaladevi, original ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 13 /38 WP-5252-2015 applicant No.1 before the DRT and the mother of the petitioners herein expired on 5.2.2014 leaving behind petitioners as the legal heirs. The petitioners filed the present petition on 16.3.2015.The present petition is admitted by this Court on 17.12.2015 however, no interim relief was granted.
o) The order dated 17.12.2015 passed by this Court, refusing to grant interim relief was challenged by the petitioners before the Supreme Court. The Hon'ble Supreme Court by its order dated 29.8.2016 directed this Court to hear and decide the present petition as expeditiously as possible.
5) Shri. Doctor, the learned Senior Counsel appearing for the petitioners submitted that after receipt of notice under Section 13(2) of the SARFAESI Act dated 12.12.2011 which was accompanied with the letter dated 1.4.2005, alleged to have been signed by the petitioners and Smt. Nirmaladevi, by which they had consented to the alleged mortgage and to deliver the possession of the suit property, the petitioners immediately replied the same by their letter dated 18.2.2011 and protested from taking possession and/or any steps to take possession of the suit property. He submitted that after receipt of the report of the hand writing export, the petitioners lodged complaint with the Palasia Police Station, for forging and fabricating the said letter dated 1.4.2005 which is the main document in question in the present matter. He submitted that once the petitioners lodged their protest in writing from handing over the ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 14 /38 WP-5252-2015 possession to respondent No.1 bank by their letter dated 18.2.2011, it was necessary and incumbent on the part of the respondent Bank to take recourse to obtain an order under Section 14 of the SARFAESI Act from the Chief Judicial Magistrate or the District Magistrate before taking possession of the suit property. He submitted that assuming for the sake of argument that letter dated 1.4.2005 allegedly signed by the petitioners and Smt. Nirmaladevi is a genuine letter, then also in view of the protest lodged by the petitioners by their letter dated 18.2.2011 the respondent bank, before taking any measures under Section 13(4) of the Act ought to have obtained an order under Section 14 of the said Act. He submitted that as a matter of fact the bank has not lawfully adopted any of the measures as contemplated under Section 13(4) and 14 of the Act and on 6.4.2011 the officers of the bank along with recovery agents and police personnel physically barged into the premises of the petitioners and evicted them forcibly. He submitted that when the petitioners filed S.A. No.107/2011 on 12.4.2001 the decision in the case of Harshad Goverdhan Sondagar vs. International Assets Reconstruction Company Ltd. and ors reported in (2014) 6 SCC 1 which was decided on 3.4.2014 was not in the field and therefore, their application before the DRT-III Mumbai under Section 17 of the SARFAESI Act was maintainable, as the DRT according to him was having jurisdiction to adjudicate upon the same. He further submitted that the DRT has rightly applied the ratio of the judgment in the case of Clarity Gold ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 15 /38 WP-5252-2015 Pvt. Ltd. Vs. State Bank of India reported in 2011(2) Maharashtra Law Journal 778 and had directed to restore the possession of the premises. He submitted that the amended provisions of Section 17(3) of the SARFESI Act have came into effect from 1.9.2016 and it has retrospective effect in applicability. He submitted that where a law is enacted for the benefit of a community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. He submitted that a class of tenants or lessees has been given benefit by the said amended provision and therefore, the said provision has retrospective effect in its applicability. In support of his contention he relied on the decision of the Supreme Court in the case of Commissioner of Income Tax (Central-I) New Delhi vs. Vatika Township Private Ltd. reported in (2015) (1) SCC 1. He submitted that there is no evidence on record except the oral submissions made by the respondent bank on affidavit that the possession of the said property was voluntarily handed over by the petitioners to the respondent bank. He further submitted that the respondent bank never raised any objection during the course of the hearing in S.A. No.107 of 2011 before the DRT about its jurisdiction in deciding the application filed by the petitioners and even such a plea was not raised before the Appellate Tribunal in an appeal filed by the bank. He submitted that after taking into consideration the facts of the present case, this Court in exercise of its jurisdiction under Article 226 and 227 of the ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 16 /38 WP-5252-2015 Constitution of India may direct the respondent bank to restore the possession of the suit property to the petitioners. He lastly prayed that the present petition may be allowed and the petition filed by the bank and the civil application preferred by respondent No.2 may be dismissed.
6) Smt. Rajani Iyer, the learned Senior Counsel appearing for the respondent No.1 Bank, at the outset submitted that on 12.4.2011 when the petitioners presented S.A. No.107/2011 and on 7.9.2012 when the DRT-III, Mumbai decided it, in view of the unamended Section 17(3) of the SARFAESI Act, the DRT was not having jurisdiction to entertain and decide the same. She submitted that the remedy, then was available to the petitioners, to approach this Court under Article 226 and 227 of the Constitution of India. She submitted that the Supreme Court in the case of Harshad Sondagar (supra) has reiterated the said position of law and therefore, while deciding the Appeal No.206/2012 the Appellate Tribunal (DRAT) has correctly taken into consideration the said vital aspect of the matter. She submitted that the amendment to Section 17(3) of the SARFAESI Act has came into effect from 1.9.2016 and by way of said amendment the tenants or lessees have been permitted to approach the DRT for deciding their claim of tenancy. She further submitted that the contention of the learned counsel for the petitioners that amended Section 17(3) of the SARFAESI Act has retrospective application is misplaced, as legislature in its wisdom has not specifically stated about its ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 17 /38 WP-5252-2015 retrospective applicability and therefore, it is only prospective in application. She submitted that the respondent bank granted financial assistance to respondent Nos.3 and 4 which was subsequently renewed and extended to higher financial limits. That respondent No.2-Rajat Infrastructure is the mortgagor and one of the corporate guarantor to the borrowers i.e. respondent Nos.3 and 4. That, respondent No.2 created mortgage of the suit property by depositing documents of title deeds with intent to secure facilities granted to respondent Nos.3 and 4. She submitted that, along with other documents respondent Nos.2 to 4 submitted a letter dated 1.4.2005 which was a letter of consent executed by the petitioners and their mother late Smt. Nirmaladevi consenting to creation of mortgage and giving undertaking to quit peaceful and vacant possession of the suit property, as and when demanded, by the bank. That, the said letter was also notorized on 2.4.2005. She submitted that as respondent Nos.3 and 4 committed default in repayment of the loan, the respondent bank addressed a letter dated 12.2.2011 under Section 13(2) of the SARFAESI Act and called upon the petitioners to deliver the possession of the said property. That, the said demand was made on the strength of the letter dated 1.4.2005 signed by the petitioners and Smt. Nirmaladevi. The learned Senior counsel however has fairly admitted the fact that after receipt of the letter dated 12.2.2011 by a letter dated 18.2.2011 the petitioners disputed and denied having executed or signed the letter dated 1.4.2005 and lodged their protest ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 18 /38 WP-5252-2015 from handing over the possession. She further submitted that, on 6.4.2011, when the respondent bank's officers along with other persons went to the said property the petitioners voluntarily handed over the possession of the suit property in favour of the bank. That the respondent bank had sought for police protection only by way of abandont caution and to avoid any untoward incident which might take place at the last moment. She submitted that after taking possession of the said property the respondent-bank has given notice to the petitioners for the same. That as the petitioners had handed over the possession voluntarily there is no question of taking forcible possession of the suit property. She submitted that the respondent bank through out since inception till today has maintained a stand that, it did not take forcible possession of the suit property and the said fact can be discerned from the various pleadings of the bank. She further submitted that while taking possession of the suit property the bank has effected a detailed panchanama dated 6.4.2011 in presence of the police personnel and the said police personnel have signed the same. She submitted that as the petitioners had executed a letter dated 1.4.2005 for handing over the possession in favour of the bank and have consented to creation of mortgage and undertook to handover peaceful and vacant possession of the suit property to the bank, it was not necessary for the bank to obtain an order under Section 14 of the SARFAESI Act. She submitted that in view of the ratio laid down by the Division Bench of this Court ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 19 /38 WP-5252-2015 in the case of Clarity Gold Pvt. Ltd. Vs. State Bank of India reported in 2011(2) Mah. L.J. Page 778 when the borrower handed over the possession of the said property voluntarily to the secured creditor in pursuance of the notice under Section 13(2) of the SARFAESI Act, it would be open to the secured creditor to take possession and in view of the facts mentioned herein above, it was not at all necessary for the bank to invoke Section 14 of the SARFAESI Act. She further submitted that the DRAT being the Appellate Court and the last fact finding Court, did not scrutinize the documents and no fact finding exercise was carried out by the Appellate Tribunal. She lastly submitted that the observations and/or the directions issued by the Appellate Tribunal in the impugned Judgment and Order dated 14.10.2014, particularly in para No.11 be quashed and set aside as those are against the settled canons of law. She therefore, prayed that the petition preferred by the bank may be allowed and the petition preferred by the petitioners be dismissed.
7) Mr. Choudhary, the learned Senior Counsel appearing for respondent No.2-Rajat Infrastructure opposed for grant of any relief in favour of the petitioners.. He submitted that respondent No.2-Rajat Infrastructure has filed Civil Application No.2088/2016 for initiating proceedings under Section 340 of the Code of Criminal Procedure and/or other enabling provisions against the petitioners in W.P. No.5252/2015 as they have indulged in alleged offence as contemplated under Section 177, 182, 193, 199 and 209 of the Indian ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 20 /38 WP-5252-2015 Penal Code as well as other cogent offences. He submitted that consent letter dated 1.4.2005 which is annexed at Exh.D (Page 75) to the present application is the letter alleged to be a forged consent letter which is annexed in the charge sheet filed by the CBI at Indore. He submitted that Page 76 to the present application and Page 80 to the Writ Petition No.5252/2015 are the consent letters dated 1.4.2005 which for the first time has surfaced on record in the petition filed by the petitioners and in the letter dated 1.4.2005 annexed at Page 80 to the petition (Page 76 to the application), the signature of Shri S.K. Kabra is absent. He submitted that the petitioners have either hexed out the said signature or tampered with the alleged document seized by the CBI and have annexed a forged document to the petition at Page 80. He submitted that this Court may therefore invoke its jurisdiction under Section 340 of the Cr. P.C. and initiate an inquiry into the matter. He submitted that the allegation, that the respondent No.2-Rajat Infrastructure has created and/or manufactured the said consent letter dated 1.4.2005 is false and baseless. He therefore, prayed that the said application may be allowed.
8) At this stage, we may note here that, we deem it proper, not to deal with the contention of the learned counsel for the petitioners, that the amendment to Section 17(3) of the SARFAESI Act which has come into effect from 1.9.2016 has retrospective effect in its application, need not be considered, in view of the peculiar facts and circumstances of the present case and we leave that issue to be ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 21 /38 WP-5252-2015 decided in an appropriate case.
In view of the ratio laid down by the Supreme Court in the case of Harshad Sondagar (supra) and in view of Section 17 which was prevailing prior to the amendment of 1.9.2016, the DRT was having power to restore the possession of the secured assets for and in favour of the borrower but it could not restore the possession of the secured assets to the lessee.
9) The supreme Court in the case of Harshad G. Sondagar (supra) in para Nos.28, 29 and 32 has held as under:
"28. A reading of sub-rules (1) and (2) of Rule 8 of the security Interest (Enforcement) Rules, 2002 would show that the possession notice will have to be affixed on the outer door or at the conspicuous place of the property and also published, as soon as possible but in any case later than seven days from the date of taking possession, in two leading newspapers, one in vernacular language having sufficient circulation in that locality, by the authorized officer. At this stage, the lessee of an immovable property will have notice of the secured creditor making efforts to take possession of the secured assets of the borrower. When, therefore, a lessee becomes aware of the possession being taken by the secured creditor, in respect of the secured asset in respect of which he is the lessee, from the possession notice which is delivered, affixed or published in sub- rule (1) and sub-rule (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, he may either surrender possession or resist the attempt of the ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 :::
22 /38 WP-5252-2015 secured creditor to take the possession of the secured asset by producing before the authorized officer proof that he was inducted as a lessee prior to the creation of the mortgage or that he was a lessee under the mortgagor in accordance with the provisions of Section 65-A of the Transfer of Property Act and that the lease does not stand determined in accordance with Section 111 of the Transfer of Property Act. If the lessee surrenders possession, the lease even if valid gets determined in accordance with clause (f) of Section 111 of the Transfer of Property Act, but if he resists the attempt of the secured creditor to take possession, the authorized officer cannot evict the lessee by force but has to file an application before the Chief Metropolitan Magistrate or the District Magistrate under Section 14 of the SARFAESI Act and state in the affidavit accompanying the application, the name and address of the person claiming to be the lessee. When such an application is filed, the Chief Metropolitan Magistrate or the District Magistrate will have to give a notice and give an opportunity of hearing to the person claiming to be the lessee as well as to the secured creditor, consistent with the principles of natural justice, and then take a decision. If the Chief Metropolitan Magistrate or District Magistrate is satisfied that there is a valid lease created before the mortgage or there is a valid lease created after the mortgage in accordance with the requirements of Section 65-A of the Transfer of Property Act and that the lease has not been determined in accordance with the provisions of Section 111 of the Transfer of Property Act, he cannot ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 23 /38 WP-5252-2015 pass an order for delivering possession of the secured asset to the secured creditor. But in case he comes to the conclusion that there is in fact no valid lease made either before creation of the mortgage or after creation of the mortgage satisfying the requirements of Section 65-A of the Transfer of Property Act or that even though there was a valid lease, the lease stands determined in accordance with Section 111 of the Transfer of Property Act, he can pass an order for delivering possession of the secured asset to the secured creditor.
29] Sub-section (3) of Section 14 of the SARFAESI Act provides that no act of the Chief Metropolitan Magistrate or the District Magistrate or any officer authorized by the Chief Metropolitan Magistrate or District Magistrate done in pursuance of Section 14 shall be called in question in any court or before any authority. The SARFAESI Act, therefore, attaches finality to the decision of the Chief Metropolitan Magistrate or the District Magistrate and this decision cannot be challenged before any court or any authority. But this Court has repeatedly held that statutory provisions attaching finality to the decision of an authority excluding the power of any other authority or Court to examine such a decision will not be a bar for the High Court or this Court to exercise jurisdiction vested by the Constitution because a statutory provision cannot take away a power vested by the Constitution. To quote, the observations of this Court in Columbia Sportswear Co. vs. Director of Income Tax, 12: (SCC P 234, Para 17):
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24 /38 WP-5252-2015 "17. Considering the settled position of law that the powers of this Court under Article 136 of the Constitution and the powers of the High Court under Articles 226 and 227 of the Constitution could not be affected by the provisions made in a statute by the Legislature making the decision of the tribunal final or conclusive, we hold that sub- section (1) of Section 245-S of the Act, insofar as, it makes the advance ruling of the Authority binding on the applicant, in respect of the transaction and on the Commissioner and Income- Tax Authorities subordinate to him, does not bar the jurisdiction of this Court under Article 136 of the Constitution or the jurisdiction of the High Court under Articles 226 and 227 of the Constitution to entertain a challenge to the advance ruling of the Authority."
In our view, therefore, the decision of the Chief Metropolitan Magistrate or the District Magistrate can be challenged before the High Court under Articles 226 and 227 of the Constitution by any aggrieved party and if such a challenge is made, the High Court can examine the decision of the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, in accordance with the settled principles of law.
32. When we read sub-section (1) of Section 17 of the SARFAESI Act, we find that under the said sub-section "any person (including borrower)", aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 25 /38 WP-5252-2015 under the Chapter, may apply to the Debts Recovery Tribunal having jurisdiction in the matter within 45 days from the date on which such measures had been taken. We agree with the Mr. Vikas Singh that the words 'any person' are wide enough to include a lessee also. It is also possible to take a view that within 45 days from the date on which a possession notice is delivered or affixed or published under sub-rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, a lessee may file an application before the Debts Recovery Tribunal having jurisdiction in the matter for restoration of possession in case he is dispossessed of the secured asset. But when we read subsection (3) of Section 17 of the SARFAESI Act, we find that the Debts Recovery Tribunal has powers to restore possession of the secured asset to the borrower only and not to any person such as a lessee. Hence, even if the Debt Recovery Tribunal comes to the conclusion that any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor are not in accordance with the provisions of the Act, it cannot restore possession of the secured asset to the lessee. Where, therefore, the Debts Recovery Tribunal considers the application of the lessee and comes to the conclusion that the lease in favour of the lessee was made prior to the creation of mortgage or the lease though made after the creation of mortgage is in accordance with the requirements of Section 65-A of the Transfer of Property Act and the lease was valid and binding on the mortgagee and the lease is yet to be determined, the Debts Recovery Tribunal will not have the power to restore possession of the secured asset to the lessee. In our considered opinion, therefore, there is no ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 26 /38 WP-5252-2015 remedy available under Section 17 of the SARFAESI Act to the lessee to protect his lawful possession under a valid lease."
The Division Bench of this Court in the case of Clarity Gold Pvt. Ltd vs. State Bank of India reported in 2011 (2) Mah. L.J. Page 778 in Para 19 has held as under:
"19. The Tribunal came to the conclusion that the Bank had taken forcible possession of the property without seeking recourse to an order of the Chief Metropolitan Magistrate under Section 14. Now, under Section 14, where the possession of any secured asset is required to be taken by the secured creditor, the secured creditor may make request in writing to the Chief Metropolitan Magistrate or the District Magistrate concerned to take possession. Thereupon, the Chief Metropolitan Magistrate or the District Magistrate is empowered to take possession of the asset and documents relating thereto and to forward them to the secured creditor. Under sub-section (2) the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary. Section 14 of the Act is an enabling provision under which the secured creditor is empowered to seek recourse to the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate for the purpose of taking possession. Though Section 14 is an enabling provision, it will be wholly impermissible for a secured creditor, despite the provisions of Section 14, to take the law into his own hands and to forcibly evict a borrower from the secured ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 :::
27 /38 WP-5252-2015 asset. Our legal system is governed by the rule of law. If the borrower hands over possession voluntarily to the secured creditor in pursuance of a notice under Section 13(4), it would be open to the secured creditor to take possession. But, if possession is not voluntarily handed over, the secured creditor cannot take the law into his own hands and secure vacant possession by taking recourse to the police machinery. In such an event, the only remedy that is available is to seek an appropriate order from the Chief Metropolitan Magistrate, or as the case may be, the District Magistrate. Parliament has specifically authorised in sub-section (2) those authorities to take or cause to be taken such steps and use or caused to be used such force as may be necessary. Authorisation of the use of force for taking possession is therefore a matter which lies in the jurisdiction and power of the authorities prescribed by Section 14. No secured creditor can by seeking assistance of police machinery unilaterally carry out the eviction of the borrower and take over forcible possession of the secured asset.
10) There cannot be any second opinion about the principles enunciated by the Hon'ble Supreme Court in the case of Harshad G. Sondagar (supra) and in view of the same prior to the amendment to Section 17(3) of the SARFAESI Act which came into effect from 1.9.2016, the Debt Recovery Tribunal was not having power to restore the possession of the secured asset to the lessees.
11) Irrespective of the fact that the DRT on 12.4.2011 entertained the SA No.107/2011 filed by the petitioners and decided it on 7.9.2012, in view of the peculiar facts and circumstances of the ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 28 /38 WP-5252-2015 present case, while exercising our jurisdiction under Articles 226 and 227 of the Constitution of India, we have independently scrutinized and assessed the entire material/evidence which is in the form of documents and statements of the witnesses available on record.
12) It is an admitted position, as per the record that, the petitioners are the lessees in the suit property. As stated earlier, by a registered deed dated 2.9.1939 Shri. Ayodhya Prasad Bhargav transferred his lease hold interest in the suit property in favor of Swayambar Lal for the residuary period which will be expiring on 1.9.2019. By diverse sale deeds dated 24.10.1988, the Dravid family sold its reversionary rights in the said property to respondent No.2- Rajat Infrastructure. The sale deed dated 24.10.1988 clearly refers to the lease hold rights and the possession of the petitioners in the suit property. The record further reveals that by an inter office letter dated 19.4.2005 the respondent No.1 Bank has admitted the said fact and it is mentioned that the lessees are in possession of the property and they should give consent to vacate the premises of the suit property as and when called upon by the bank. It is pertinent to note here that, in the said letter, there is no reference at all of the purported letter dated 1.4.2005 allegedly issued by the petitioners, thereby, giving their consent in creating equitable mortgage of the suit property for the credit facilities to be granted to respondent No.3 and further recording their consent to give possession of the suit property as and when the same will be demanded by the bank. In ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 29 /38 WP-5252-2015 this background, the bank had issued a notice as contemplated under Section 13(2) of the SARFAESI Act dated 12.2.2011 to the petitioners which was received by them on 17.2.2011 requesting them to deliver the vacant possession of the suit property on 23.2.2011 to the authorized officer of the respondent-bank. The letter dated 1.4.2005 was annexed to the said letter dated 12.2.2011. It is to be noted here that immediately after receipt of the said letter dated 12.2.2011, the petitioners replied the same by their letter dated 18.2.2011 and resisted the act of secured creditor- bank of taking possession of the suit property. The fact that the petitioners were in possession of th suit property by way of registered lease deed has been specifically mentioned therein. It is categorically stated that in such set of circumstances the question of handing over of possession of the suit property did not arise at all. It is also stated that signatures on the said document are forged one. It is thus, clear that, after receipt of the notice under Section 13(2)of the SARFAESI Act dated 12.2.2011, the petitioners had lodged their protest with respondent No.1-Bank and resisted the act of the secured creditor of taking possession. It was therefore, incumbent and mandatory on the part of the respondent bank to approach the concerned Magistrate under Section 14 of the Act before taking the physical possession of the suit property. The respondent-Bank has utterly failed to comply with the mandatory requirements of the SARFAESI Act. The bank under the guise of purported consent letter ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 30 /38 WP-5252-2015 dated 1.4.2005 even after receipt of reply letter dated 18.2.2011 by the petitioners, to their notice dated 12.2.2011, without obtaining necessary orders from the concerned Magistrate under Section 14 of the Act has taken the possession of the suit property. The record further reveals that, prior to taking physical possession of the suit property the symbolic possession of the same has not been taken by the bank.
13) This leads us to deal with the letter dated 1.4.2015 (document in dispute in the present petition) purportedly issued by the petitioners. It is the consistant stand of the respondent bank that the said letter dated 1.4.2005 was handed over to it by respondent No.2 while creating equitable mortgage for securing financial assistance for and in favour of respondent Nos. 3 and 4. It is to be noted here that inter office letter dated 19.4.2005 issued by the Dy. General Manager of the respondent bank clearly mentions that the lessees have no interest in the loan sanctioned to M/s. Zoom Developers Private Limited-respondent No.3 and they should give consent to vacate the premises as and when called upon by the bank. That, the undertaking should be confirmed by the bank and it should be notarized. It thus makes clear that on 19.4.2005 the alleged letter dated 1.4.2005 was not in existence and was not submitted by respondent Nos. 2 to 4 to the bank while processing the loan. It therefore clearly appears that the said letter dated 1.4.2005 came on record/existence after 19.4.2005. It further appears to us that the ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 31 /38 WP-5252-2015 respondent bank after accepting the documents from respondent Nos. 3 and 4 and after receipt of the said purported letter dated 1.4.2005 has bona-fide granted the financial credit facility for and in favour of respondent Nos. 3 and 4.
14) It is further to be noted here that the lease of the suit property which is in favour of the petitioners will came to an end on 1.9.2019 and therefore, the petitioners giving consent for vacating the suit premises prior to its expiry in favour of respondent Nos. 2 to 4 on 1.4.2005, according to us does not arise. It is improbable that the petitioners would voluntarily relinquish and/or surrender their valuable rights in the year 2005 i.e. approximately 14 years prior to the expiry of the lease period in favour of respondent No.2. The record reveals that the petitioners after receipt of the notice dated 12.11.2011 which was accompanied by letter dated 1.4.2005 sent the said letter dated 1.4.2005 to the State Examiner of Questioned Documents, Bhopal for expert opinion on the point as to whether the said letter was signed by them or was a forged one and the State Examiner of Questioned Documents Bhopal vide its report dated 13.10.2011 has confirmed that the said document is forged one and does not contain signatures of the petitioners and their mother. The CBI while submitting the charge sheet in respect of the crime registered with it at the instance of respondent No.1 bank in crime bearing No.RC/BD-1/2014-E-0008 of CBI BS and FC, New Delhi 2833, while narrating the brief facts of the case, has in Para 10 mentioned ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 32 /38 WP-5252-2015 about the said fact. It is to be noted here that after lodgment of the first information report with Palasia Police Station bearing CR No.499/2011 for the offence punishable under Section 420, 460, 468, 471 and Section 120B of the I.P.C. the accused persons therein namely Vijay Choudhary, Sharad T. Kabra. Biharilal Kejriwal and Smt. Manjiri wife of Vijay Choudhary preferred pre-arrest bail applications. The High Court of Madhya Pradesh Bench at Indore while rejecting the said applications in its order dated 17.11.2011 has held that, as per the report of the hand writing expert, consent letter was never signed by the complainant/objector. That the applicants therein are the authors of the situation. The allegations against them that they prepared forged and fabricated three letters of consent dated 1.4.2005 and on the basis of the said letter they obtained loan from the bank and due to their said conduct lessees were dispossessed from the property in question. The High Court has further held that the applicants therein have adopted novel method to disposses the lessees by preparing a forged and fabricated consent letter. It is important to note here that the CBI in their memo of charge sheet has categorically stated that the original letter dated 1.4.2005 purported to have been written by Smt. Nirmaladevi, Shri. Mahaindra Chandrasen and Shri. Sharad Chanrdasen was seized under seizure panchanama dated 26.8.2011 from Shri. Sharma then Branch Manager of Union Bank of India, Andheri (E), Branch, Mumbai.
15) There is another facet of the letter dated 1.4.2005. That ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 33 /38 WP-5252-2015 the said letter has a seal of Notary affixed on it dated 2.4.2011.The petitioners have since the date of receipt of the said letter dated 1.4.2005 on 17.2.2011 have disputed their signatures on it and the said fact has been prima facie established by the report of the handwriting expert and in such circumstances, the alleged seal of notary put on the said letter dated 1.4.2005 creates doubt in the mind of this Court about its genuineness. Assuming for the sake of argument that the said letter was written by the petitioners, in that eventuality, for the said voluntary act on behalf of the petitioners, according to us notarizing such a document was of no consequence. In view of the aforestated reasons, according to us the said letter dated 1.4.2005 loses its significance and needs to be kept aside for our consideration while evaluating the material evidence on record.
16) The bank in its pleadings since beginning has taken consistent stand that in pursuance of the said letter dated 1.4.2005, the petitioners handed over the vacant and peaceful possession for and in favour of the bank on 6.4.2011. The bank in its reply before the DRT had admitted about the presence of police personnel at the site i.e. at the suit property on 6.4.2011.The documents on record further reveals that in pursuance of the letter issued by the bank with a request of provide police protection, the police had been to the suit property on 6.4.2011. As stated earlier, it is submitted on behalf of the bank that the bank had sought police protection only by way of abundant caution and to avoid any untoward incident which might ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 34 /38 WP-5252-2015 take place at the last moment. The police constable /Home guards namely Shri. Purshottam Singh and Smt. Kalpana with other persons were present at the suit property on 6.4.2011 and are signatories to the panchanama effected by the officers of the bank after taking possession. In the panchanama dated 6.4.2011 signed by Smt. Kalpana, a police constable, on the internal page No. 2, it is handwritten between last two paragraphs that "Physical possession of the property was delivered voluntarily". The CBI during the course of investigation of the crime has recorded the statements of Smt. Kalpana and Smt. Mangania Meshram who were present at the suit property on 6.4.2005 and these two witnesses in their statements dated 5.3.2015 have categorically stated that when they signed on the second page of the panchanama in between the said two portions, nothing was written there. That they have signed the panchanama after bank officers explained it in Hindi about its contents. Thus, it is prima facie, abundantly clear that when the bank officers recorded the panchanama dated 6.4.2011 allegedly at the suit property, the sentences "physical possession of the property was delivered voluntarily" appearing in the panchanama signed by Smt. Kalpana was not there and it is either interpolation or addition effected by the bank officers subsequently. Thus, according to us, the bank has created scene of taking alleged voluntary possession from the petitioners and without following mandatory provisions of the Securitization Act. It is the specific case of the petitioners that on ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 35 /38 WP-5252-2015 6.4.2011 they have been physically evicted from the suit property by the bank officers along with recovery agents and police personnel. Advocate Shri. Dilip Sharma who was called by the petitioners at the suit property on 6.4.2011 and who was present at the time of taking possession has also filed an affidavit before the Court to that effect.
17) After scrutinizing the entire material/documents available on record, we are of the considered opinion that the respondent bank has taken the possession of the suit property unceremoniously and without following due process of law. The documents available on record clearly shows that the petitioners have been forcibly evicted from the suit property in question.
18) The aforesaid discussion on facts will unequivocally lead to a positive conclusion that the concerned officers of respondent No.1 in utter violation of the provisions of the SARFAESI Act have indulged into taking possession of the suit property and the petitioners have been evicted from the suit property unceremoniously and forcibly and therefore, we are of the considered opinion that Section 29 of the SARFAESI Act squarely applies in the present case. We therefore, grant liberty to the petitioners to file complaint as contemplated under Section 29 of the SARFAESI Act and any other law prevailing in the field against Shri. R. Ramnathan Assistant General Manager and the Authorized Officer and Shri. Sanjay Satpathi, and Law Officer of respondent No.1 Bank, for taking forcible possession who were present at the time of taking ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 36 /38 WP-5252-2015 possession and any other person related with the said offence, if so advised. The directions to that effect given by the DRAT by its order dated 14.10.2014 in Para 11 are maintained to that extent. However, the further directions issued by the DRAT to the District Magistrate to consider and take cognizance if the complaint is made and to secure the presence of the said persons and dispose of the case according to law is hereby quashed and set aside. as such a direction is against the settled cannons of law.
19) As far as Civil Application NO.2088/16 filed by respondent No.2-Rajat Infrastructure for initiating the inquiry against the petitioners under Section 340 of the Cr.P.C. for the alleged offence under the various sections of the Indian Penal Code is concerned, the petitioners in their reply to the said civil application, at Page 93 has categorically stated that while taking photo copy of the said document i.e. letter dated 1.4.2005 which is annexed at Page No. 76 in C.A. No.2088/2016 and Page No.80 in W.P. No.5252/2015 some error is crept in and some portion of the original letter which is at Page No. 75 of C.A. No.2088/2016 has remained to be copied and therefore, by no stretch of imagination is an attempt to mislead this Court. It is to be noted here that affiant of the said application Shri. Vijay Choudhary is the Director of Respondent Nos. 2 to 4 and was interested in securing the loan from the financial institution i.e. respondent No.1 Bank. It appears from the record that the said affiant along with other persons was instrumental in submitting the said ::: Uploaded on - 10/03/2017 ::: Downloaded on - 11/03/2017 01:08:03 ::: 37 /38 WP-5252-2015 letter dated 1.4.2005 to the bank for securing the financial assistance. As stated earlier, the CBI during the course of investigation has found that the signatures of the petitioners on the said letter dated 1.4.2005 are forged one. It clearly appears to us that the affiant of CA. No.2088/2016 Shri. Vijay Choudhary wants to lay a foundation for creating his defence in the criminal case/trial wherein the CBI has already submitted a charge sheet before the Court of competent jurisdiction at Indore and/or to pressurize the petitioners from resiling from their statements given to the police/CBI. As stated earlier the High Court of Madhya Pradesh, Bench at Indore, has observed adversely against the said applicants namely Vijay Choudhary and other applicants therein while rejecting their pre arrest bail application by an order dated 17.11.2011. Even otherwise on independent scrutiny of the said two documents which are at Page No.s 76 of C.A.No.2088/2016 and 80 of W.P. NO.5252/2015 on one hand and Page No. 75 of C.A. No.2088/2016 on other hand we find that there is substance in the submission of the petitioners, that while taking a photo copy, certain portion i.e. signature of one person has remained to be copied out and in our opinion no case is made out at all to initiate any enquiry under Section 340 of the Cr.P.C. In our considered opinion, the said application deserves to be dismissed in limine.
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20) Hence, the following order.
a) Writ Petition No.5252 of 2015 is allowed and respondent
No.1-Bank is hereby directed to restore the possession of the suit
property in favour of the petitioners forthwith and in any case within a period of fifteen days from today.
b) Writ Petition No.54/2015 preferred by the respondent No.1-bank is partly allowed and while reserving the right of the petitioners in W.P. No.5252/2015 to file appropriate complaint and/or to adopt proceedings as contemplated under Section 29 of the SARFAESI Act and any other law in force, the observations made by the DRAT in its order dated 14.10.2014 in Para No.11, to the extent that, "In turn the District Magistrate is directed to consider and take the cognizance if the complaint is made and to secure the presence of above person by issuing NBW and dispose of the case according to law", are quashed and set aside.
The rest of the directions issued by the DRAT in Para 11 are maintained.
c) Civil Application No.2088/2016 being dehores of any merits is dismissed in limine.
d) In view of the order passed in W.P. N.5252 of 2015 civil application No.3188 of 2016 does not survive and the same is disposed of.
e) No order as to costs.
(A.S.GADKARI, J.) (R.M. BORDE, J.)
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