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Allahabad High Court · body

2017 DIGILAW 616 (ALL)

D. K. GUPTA v. STATE OF U. P.

2017-02-22

ARUN TANDON, UMESH CHANDRA SRIVASTAVA

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JUDGMENT : Hon'ble Arun Tandon, J. Hon'ble Umesh Chandra Srivastava, J. Heard Sri Gopal S. Chaturvedi, Senior Advocate assisted by Sri Sikandar B. Koachar on behalf of the petitioner. Sri V.P. Srivastava assisted by Sri Pusp Raj Singh on behalf of the first informant-respondent No.4 and learned A.G.A. on behalf of the State respondents No.1, 2 & 3. This writ petition has been filed under Article 226 of the Constitution of India by D.K. Gupta, Deputy General Manager, HDFC Ltd for quashing of the First Information Report lodged by loanee-respondent No.4 namely Ajeya Singh. It is admitted to the parties that Ajeya Singh, is none other than the son of Ex-Prime Minister of this country namely Late V.P. Singh. Respondent No.4, is one of the Directors of M/s Atlantis Multiplex Private Ltd. He is Resident of 4 Ashoka Road, Allahabad. It is admitted to the parties that the company M/s Atlantis Multiplex Private Ltd. had obtained financial assistance from M/s. HDFC Ltd. of which the petitioner before this Court is Deputy Manager. The Financial Assistance obtained by M/s Atlantis Multiplex Private Ltd. was to the tune of Rs.25 crores. It is also admitted on record that there has been a default in repayment of the loan obtained by M/s Atlantis Multiplex Private Ltd. On record, there is a letter sent on behalf of the HDFC Ltd. issued under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (hereinafter referred to as SARFAESI Act, 2002) dated 22.7.2009 wherein the amount outstanding against M/s Atlantis Multiplex Private Ltd. has been shown as Rs.32,88,84,581/-. A reply to the said notice has been given on behalf of the company by Sri Ajeya Singh, practically admitting his liability and stating that he was ready to liquidate the outstanding dues if one time settlement is arrived at. This we have only stated to bring on record that the first informant is none other than a loanee, who has committed default in the repayment of the money, the amount whereof runs into crores. What we further find is that the said Director Mr. Ajeya Singh, is also the Mortgager/Guarantor for the financial assistance so obtained. This we have only stated to bring on record that the first informant is none other than a loanee, who has committed default in the repayment of the money, the amount whereof runs into crores. What we further find is that the said Director Mr. Ajeya Singh, is also the Mortgager/Guarantor for the financial assistance so obtained. The records further reflect that for initiating the recovery of the outstanding amount dues against M/s Atlantis Multiplex Private Ltd., the HDFC Ltd. had initiated suit proceedings before the Delhi High Court being Original Suit No.1018 of 2011. The suit was dismissed vide judgment and order dated 29.4.2011on the ground that the proper remedy for the financing company was to take recourse to proceedings under SARFAESI Act, 2002. The company was however advised to file a review application claiming therein that the financial company did not answer the description of banking company within the meaning of SARFAESI Act and, therefore, it may not be able to take recourse to the SARFAESI Act. However taking cue from the judgment of the Delhi High Court, HDFC Ltd. initiated proceedings under the SARFAESI Act and that as on date, an application is pending before the District Magistrate, Allahabad for deciding as to whether the tenants of the secured property in question had been inducted prior to the execution of the loan agreement or subsequent thereto for the purpose of delivery of possession of the secured assets. (This we have recorded on the basis of statement which has been made before us by the counsel appearing for the parties including the counsel for respondent No.4). We find that the notice dated 22.7.2009, was addressed to the borrower company, Ajeya Singh, who was Mortgager/Guarantor and Mr. Harsh Vardhan Tiwari, as Director of the borrower company. Absolutely no objection was raised by the borrower company in its response to the said notice as per the letter dated 23.12.2009, with regards to inclusion to the name of the Harsh Vardhan Tiwari in the notice as, one of the Director, it is also not in dispute that at the time financial assistance was provided by HDFC Ltd. to M/s Atlantis Multiplex Private Ltd., Mr. Harsh Vardhan Tiwari was shown as one of the Directors of the company and it is with reference to such documents that the notice had been sent. Harsh Vardhan Tiwari was shown as one of the Directors of the company and it is with reference to such documents that the notice had been sent. The other notice dated 24.9.2010 which was sent under Section 13(4) of SARFAESI Act, is part of the case diary which has been examined in the presence of the counsel for the parties today. It is addressed to M/s Atlantis Multiplex Private Ltd., Mr. Ajeya Singh, Director, Mortgager/Guarantor and Mr. Harsh Vardhan Tiwari, as Director. A reply is stated to have been sent on 15.10.2010 and in paragraph 6 of the said reply, it has been stated that Mr. Tiwari has resigned from the company in the year 2006, and subsequently, an F.I.R. has been registered against him. Sri Tiwari is on bail. The lender is fully aware of the aforesaid facts and that the borrower has genuine reasons to the believe that inclusion of his name in the notice was collusive. We may record that in reply dated 15.10.2010, there is absolutely no allegation of any malpractice at the hands of Sri. D.K. Gupta or his being in collusion with Tiwari or anybody else nor there is any allegation that any attempt is being made by the D.K. Gupta for grabbing the properties of the borrower company. Faced with the proceedings under the SARFAESI Act, Sri Ajeya Singh has lodged an F.I.R. before the Police Station Cantt, Allahabad on 26.12.2014 at 16:30 hours, (i.e. after 4 years of the receipt of the notices) alleging therein that by issuance of notice dated 22.7.2009 under Section 13(2) of the SARFAESI Act and notice dated 24.9.2010 under Section 13(4) of the SARFAESI Act because of the filing of the Suit No.1018 of 2011 which has been dismissed as barred by law on 29.4.2011 and thereafter, filing of Review Application No.74 of 2012, Sri D.K. Gupta, has fabricated documents. In collusion with Mr. Harsh Vardhan Tiwari, wants to illegally grab the property of the M/s Atlantis Multiplex Private Ltd. We under the order dated 7.2.2017, enquired from the counsel for the informant-respondent No.4, to explain as to how initiation of proceedings under Section 13(2) and 13(4) of the SARFAESI Act by the financing company, one of its Deputy Manager namely D.K. Gupta can grab the property of the borrower company. Sri V.P. Srivastava, Senior Advocate did not addressed the Court on the said issue today on the contrary, referred to the order which has been passed by the Delhi Court, dismissing the suit, as well as to the fact of filing of the review application, and contended that these two facts are sufficient to constitute an offence under Sections 419, 420, 467, 468, 479, 471, 406, 506, 120-B IPC. In our opinion, the present writ petition is a manifest abuse of the proceedings. The facts stated in the F.I.R. are not sufficient to constitute any offence under the aforesaid Sections noticed by us. Even otherwise, we are of the confirmed opinion that the lodging of the F.I.R. is a malafide exercise by Sri. Ajeya Singh, who is not only Director of the borrower company but also Guarantor and Mortgager. The attempt is to some how or the other to force the financing company to arrive at one time settlement with the borrower, by threatening criminal proceedings. We are further constraints to record that sons' and other members of the family of Ex-Prime Minister of this Country which believes in justice for all, are expected to act in a more fair and transparent manner when taking financial assistance from various financing companies. Family members of such high dignitaries cannot be permitted to threatened officers of the lending company by criminal action, only in order to avoid their financial liabilities. The facts of the case in hand fall within the category of F.I.R. which are liable to be quashed in exercise of jurisdiction under Article 226 of the Constitution of India as explained by the Apex Court in the case of State of Haryana Vs. Bhajan Lal and others ( AIR 1992 SC 604 ), especially paragraph-8. The Apex Court in the case of "Priyanka Srivastava & Another versus State of Uttar Pradesh & Others" reported in (2015) 6 SCC 287 , has held that lodging of first information reports against the Bank-authorities merely to harass them with sole intent to avoid loan is unsustainable and such first information reports are liable to be quashed. We are of the opinion that the impugned F.I.R. deserves to be quashed and it is ordered accordingly. We are also of the opinion that exemptory cost must be imposed for initiating such criminal proceedings upon Sri Ajeya Singh. We are of the opinion that the impugned F.I.R. deserves to be quashed and it is ordered accordingly. We are also of the opinion that exemptory cost must be imposed for initiating such criminal proceedings upon Sri Ajeya Singh. Cost of Rs.10 lakhs would suffice in the facts of the case. Accordingly, F.I.R dated 26.12.2014 lodged by respondent No.4 being Case Crime No.312 of 2014, under Sections 419, 420, 467, 468, 469, 471, 406, 506 and 120B of IPC, Police Station Cantt, District Allahabad is hereby quashed with the cost of Rs.10 lakhs to be paid by Mr. Ajeya Singh to the petitioner. Writ petition is allowed with cost.