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TMI Blog2017 (3) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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. 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 constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als 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 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 posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 secured creditor to take the possession of the secured asset by producing before the authorized officer proof that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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): "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 7.9.2012, in view of the peculiar facts and circumstances of the 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 prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession 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 furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarily" 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistance. 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 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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