TMI Blog2022 (8) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... m filing criminal complaint which is barred under Section 18 and 34 of the RDDBFI Act, 1993 . When the OA No. 104 /2016 was filed before the DRT then what was necessity of enforcing criminal complaint and approaching under Negotiable Instruments Act, 1881 - The Appellant was not aware of the winding up petition filed before the Hon ble Orissa High Court on 28.09.2016 and came to know about only when the Adjudicating Authority issued notice to the Appellant. The Bank has already received Rs.1.50 Crore from the builder and Rs. 54,13,999.87 from the CD. The deliberation made by all the parties as one feature common with the loan has been directly disbursed to Builder/R3 and the Bank/R2 as failed to be cautious while releasing the money to the builder without taking NOC from their bankers and has initiated in all these legal proceedings. This case finally reflects that this is a forum shopping being done by a private sector bank which is not healthy. The Code cannot be used a recovery mechanism when the Hon ble High Court of Orissa has already taken a particular view and DRT has also taken appropriate decision to get the amount realized to the Bank the Bank/R2 has realized Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the loan availed by the Corporate Debtor in favour of the applicant, without the knowledge of the applicant has been transferred to a 3rd party and the Corporate Debtor has enriched himself by the illegal sale of the commercial property, cheating and defrauding the bank of its lawful dues. Hence, the loan what ought to have been a secured loan of the banker, has become unsecured loan. And by no means the applicant banker could have recovered the lawful dues. The applicant had registered FIR against the Corporate Debtor and its Directors in respect of the illegal cheating of the Corporate Debtor under Section 120B/420 of Indian Penal Code (IPC) and dated 25th April, 2015, same is pending. The cheques which was paid towards the repayment of the loan, were dishonoured by the respondent's banker with an endorsement funds insufficient . Hence, the applicant bank filed CS No. 00007/2015 before Chief Metropolitan Magistrate at Calcutta against the Corporate Debtor and its Directors, the same is pending on the file of the District Court and another in 13th MM. Court CC no: 418064/2014 the same are pending on the file of the District court. Meanwhile, the Applicant bank had also f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with the approved plans and the said unit is meant for residential purposes as per the sanction. Clause 9- The builder and the Borrower agrees and undertakes to inform and give proper notice to the cooperative housing society as and when formed, about the said unit being so mortgaged to DLB. Clause 10- the Builder has given its consent that the DLB shall have a lien on the Sale Unit and that the Borrower shall furnish the said unit as security for Loan to DLB and create mortgage in favour of the DLB and as and when the sale deed/ lease deed/ deed of apartment of the said unit is executed it will be sent directly to DLB. Borrower (x) Co-Borrower (x) Builder (x)7. Clause 11- The Builder undertakes not to mortgage the said unit to any other financial institutions for raising any loan. The original lease deed/ sale deed executed is in the possession of the Builder. Clause 12- The Builder has no objection to the Borrower mortgaging the said Unit to DLB as security for Loan agreed to be advanced by DLB for the purpose of purchasing the said unit. Subsequent to the sale deed in respect there of having been executed after the Builder has received the entire sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respects with the Laws in India and the parties hereto hereby mutually agree that any matter or issues arising hereunder or any dispute hereunder shall, be subject to the exclusive jurisdiction of Courts and Tribunals at Kolkata. W.B. in India. Nothing in this provision shall prevent the Bank from initiating any other proceedings, in any, part of India, as it deems fit and the Borrower and the Builder/Owner unequivocally and irrevocably consents to the same. e. The Appellant has also stated that the Nomination Agreement dated 31.03.2013 entered into between the parties, is another proof which was signed by the Builder with complete knowledge that the dues of the Bank/R2 has to be paid by R3. f. It was also stated by the Appellant that the copy of the Nomination Agreement was handed over to the Bank/R2 as well by the CD on 22.04.2013 (appearing at page 126 127 of the Appeal paper book) for brevity and clarity, the same is depicted below: g. The Builder being the owner of the property sold the property to third party on 10.06.2013 without taking a No Dues Certificate from Bank fraudulently and the R3 has enriched himself by collecting 3.79 Crore for a proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud as the process to sale the property was initiated after informing the R2/bank as stated (supra). m. The R2/Bank failed to reply the said letter and so also miserably failed to resolve the issue with the Builder (R3) and the Builder never gave possession of the property or transferred the property to the R1 Company. Hence, the power to transfer the property was with the Builder (R3) only and not with the Appellant or R1 Company. n. The Appellant has also stated that as per Clause 6 of the said Agreement dated 29.06.2011, the R3/Builder shall clear the dues of the R2 Bank before transferring the said property to any buyer, the Builder/R3 has failed to do so but subsequently deposited the dues of the R2/Bank amounting to Rs. 1,50,00,000/- on 26.09.2016 in pursuant to order dated 20.09.2016 passed by the DRT (appearing at page no. 177 of the Appeal Paper book). o. It was also stated that the Hon ble Calcutta High Court by order dated 19.11.2019 vide C.O. 1019 of 2018 also found that the R2/Bank has made out an arguable case against the Builder (R3) and also recorded the submission in its interim order that the Builder (R3) has perpetuated fraud. The copy of the said ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd. The R1 acted in a fraudulent manner of entering into the said Nomination Agreement which was in complete breach on the Agreement dated 29.06.2011. e. It was also stated by R2 that the R1 to repay the loan borrowed from the R2/ bank, the Bank initiated proceedings before the DRT against the builder/CD/Guarantors etc. by filing O.A No.104 of 2016 before the DRT for recovery of a sum of Rs. 1,80,32,125.50 as on 11.12.2015 alongwith future interest till the date of realization. f. The R2 has also filed a complaint letter dated 06.02.2016 to IBA bringing out the malafide intention of the builder. The builder filed an application bearing IA No.742 of 2016 in the said O.A no. 104/2016 before the DRT for withdrawal of the letter dated 06.02.2016 sent to IBA by the R2/Bank. The Builder agreed to deposit an amount of Rs. 1.50 Crores with the R2 Bank as a security for withdrawal of the said letter. Thereafter, the DRT vide its order dated 20.09.2016 directed to R2/Bank to withdraw the letter subject to the deposit of the said amount of Rs. 1.50 Crores by the builder on 26.09.2016 against the DRT order, appeal was made by the R2/Bank before the DRAT, Kolkata which got dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the builder. iii. The Bank/R2 has filed multiple proceedings before the DRT-3 Calcutta and simultaneously persuade for recovery against the CD/ Appellant under Section 138 of the Negotiable Instrument Act, 1881 apart from filing criminal complaint which is barred under Section 18 and 34 of the RDDBFI Act, 1993 . When the OA No. 104 /2016 was filed before the DRT then what was necessity of enforcing criminal complaint and approaching under Negotiable Instruments Act, 1881. e. The Appellant was not aware of the winding up petition filed before the Hon ble Orissa High Court on 28.09.2016 and came to know about only when the Adjudicating Authority issued notice to the Appellant. The Bank has already received Rs.1.50 Crore from the builder and Rs. 54,13,999.87 from the CD. The deliberation made by all the parties as one feature common with the loan has been directly disbursed to Builder/R3 and the Bank/R2 as failed to be cautious while releasing the money to the builder without taking NOC from their bankers and has initiated in all these legal proceedings. f. It is a grey area, where even Hon ble Supreme Court Judgment in the case of State of A.P. Anr. Vs. T.Suryacha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of notice on the winding up petition, it may become apparent after the pleadings have been completed. Conversely, there may be an admission of debt, which proves to be palpably illusory after consideration of the defense put forward on behalf of the respondent company. In the first case, the company judge would admit the petition and in the second case would dismiss it. The entire activity is one of the adjudication. g. The Hon ble Supreme Court in the case of Venture Global Engineering Llc Vs. Tech Mahindra Ltd Anr. Etc (1, November, 2017) held as follows: It is a well settled principle of law that commission of fraud, misrepresentation, suppression of material facts from the adversary in the judicial proceedings and the Court/Arbitrator result in vitiating the entire judicial/arbitral proceedings including judgment/order/award passed thereon once come to the knowledge of the party concerned. On proving existence of commission of fraud, misrepresentation, suppression of material facts by the party concern, the judicial/arbitral proceedings are rendered illegal and void ab initio. This principle applies to arbitral proceedings in question and to Award dated 03.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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