TMI Blog2017 (3) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from the suit property in question. 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 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 complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible 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 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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): 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 subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave the power to restore possession of the secured asset to the lessee. In our considered opinion, therefore, there is no 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners. 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 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 favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 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 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 notar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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. 20) Hence, the following order. a) Writ Petition No.5252 of 2015 is allowed and respondent No.1- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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