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Allahabad High Court · body

2019 DIGILAW 2762 (ALL)

Udit Kumar Mittal v. State of U. P.

2019-12-12

SANJAY KUMAR SINGH

body2019
JUDGMENT : 1. Learned counsel for the informant has filed short counter affidavit dated 24.11.2019. In reply, short rejoinder affidavit dated 25.11.2019 has been filed by the learned counsel for the applicant. 2. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Shishir Tandon, learned counsel for the applicant, learned Additional Government Advocate on behalf of the State of U.P. and Sri Imran Ullah, Advocate assisted by Sri Ajay Kumar Pandey, learned counsel appearing for the informant/Kotak Mahindra Bank Limited. 3. By means of this application, the applicant, who is involved in Case Crime No.622 of 2018, under Sections 406, 420, 467, 468, 471 & 120-B I.P.C., Police Station Link Road, District Ghaziabad, is seeking enlargement on bail during the trial. 4. Filtering out unnecessary details, basic facts as per prosecution case, which are relevant for the purpose of disposal of this bail application are that the dispute in this case is regarding property situated at C-51, Ramprastha Colony, Ghaziabad measuring about 355 square yards (herein-after referred to as the “property in question”). In the year 1982, said property was purchased by Dr. R.K. Malhotra from one Balwant Singh through registered sale deed dated 04.09.1982. Thereafter, it was sold by Dr. R.K. Malhotra to Bhagwati Rustagi and Rashmi Rustagi through sale deed dated 16.12.1993. On 21.08.1995, Bhagwati Rustagi and Rashmi Rustagi executed a general power of attorney in favour of Swarnlata Sharma, and thereafter, said property was again sold by Swarnlata Sharma in favour of one B.D. Sharma by executing a sale deed dated 23.04.1997. On 16.09.2005, B.D. Sharma executed a sale deed of same property in question in favour of co-accused Vikas Garg, Vinay Garg and Deepika Garg. Thereafter, on 28.11.2007 Vikas Garg, Nidhi Garg W/o Vikas Garg, Vinay Garg and Deepika Garg have taken a total loan of Rs.1,65,80,000/-through loan account Nos. 14013241 and 14081767 (hereinafter referred to as the “first loan”) on an interest of 11.5 % per annum from a Non-Banking Financial Company known as M/s Citi Financial Consumer Finance (India) Ltd. New Delhi, mentioning themselves to be the Directors of Tirupati Rice Mills Pvt. Ltd. While taking aforesaid loan, property in question (C-51, Ramprastha Colony, Ghaziabad) was mortgaged by the borrowers with a view to secure the repayment thereof and borrowers were liable to pay aforesaid loan in 180 monthly installments of Rs. 1,93,686/-and two home loan agreements were signed by them on 28.11.2007. 1,93,686/-and two home loan agreements were signed by them on 28.11.2007. Thereafter, installments of said loan were not paid by Vikas Garg, Nidhi Garg, Vinay Garg and Deepika Garg, therefore, M/s Citi Financial Consumer Finance (India) Ltd. started arbitration proceedings against co-accused Vikas Garg, Nidhi Garg, Vinay Garg, Deepika Garg, M/s Tirupati Rice Mills Pvt. Ltd. and M/s Shiv Kumar Agarwal, but they did not participate in arbitration proceedings and claim of M/s Citi Financial Consumer Finance (India) Ltd. was allowed by ex-parte deed of award dated 31.01.2009 directing that the respondents in arbitration proceedings will jointly and severely pay to the claimant a sum of Rs. 1,78,40,626.14 only together with interest on the aforesaid amount at the rate of 18% per annum from 27.09.2008 till the date of realization. 5. Here, it is relevant to mention as argued by Sri Imran Ullah, learned counsel for the informant that Vikas Garg after taking aforesaid loan and mortgaging the property in question got another sale deed dated 24.06.2011 of the same property prepared fraudulently showing that the same has been executed in his favour by Dr. R.K. Malhotra, S/o D.S.Malhotra. Thereafter, the said property in question has been sold by Vikas Garg mentioning his name as Vikas Gopi Chand, S/o Gopi Ishwar Chand to Udit Kumar Mittal and his wife Mrs. Neetu Mittal through a registered sale deed dated 02.01.2012 after receiving sale consideration of an amount of Rs.1,66,00,000/-. It is pointed out that Udit Kumar Mittal and his wife Nitu Mittal had purchased the said property (C-51, Ramprastha Colony, Ghaziabad) after taking loan of Rs.1,42,000,00/-(hereinafter referred to as the “second loan”) from Citi Bank and mortgaging the same property with City Bank also on 31.12.2011. Thereafter, M/s Citi Financial Consumer Finance (India) Ltd. has sold/assigned the loan taken by Vijay Garg, Nidhi Garg, Vinay Garg and Deepika Garg to Kotak Mahindra Bank Ltd. under the deed of assignment on 09.04.2013 executed between M/s Citi Financial Consumer Finance (India) Limited and Kotak Mahindra Bank Ltd. As such, after 09.04.2013, Kotak Mahindra Bank Ltd. came into picture. Thereafter, M/s Citi Financial Consumer Finance (India) Ltd. has sold/assigned the loan taken by Vijay Garg, Nidhi Garg, Vinay Garg and Deepika Garg to Kotak Mahindra Bank Ltd. under the deed of assignment on 09.04.2013 executed between M/s Citi Financial Consumer Finance (India) Limited and Kotak Mahindra Bank Ltd. As such, after 09.04.2013, Kotak Mahindra Bank Ltd. came into picture. On 10.01.2014, Kotak Mahindra Bank Ltd. has issued notices under section 13(2) SARFAESI Act, 2002 to Vikas Garg, Nidhi Garg, Vinay Garg, Deepika Garg, M/s Tirupati Rice Mills Pvt. Ltd. and M/s Shiv Kumar Agarwal for payment of aforesaid amount of loan (first loan), but said amount was not paid by them, therefore, Kotak Mahindra Bank Limited has started proceedings under Section 13(4) SARFAESI Act, 2002 for taking possession of the property in question, and accordingly, issued possession notice dated 16.07.2014 to Vikas Garg, Vinay Garg and Deepika Garg. On receiving the said possession notice dated 16.07.2014, same was challenged by Vikas Garg, Vinay Garg and Deepika Garg on 28.08.2014 before Debts Recovery Tribunal, Lucknow by means of application under section 17 of SARFAESI Act, 2002 being S.A. No.393 of 2014. 6. Before the Debts Recovery Tribunal, Lucknow a legal issue was raised on behalf of the co-accused (borrowers) that under the facts of the case proceedings under SARFAESI Act is not maintainable, because M/s Citi Financial Consumer Finance (India) Limited had assigned the loan to Kotak Mahindra Bank Limited on 9.4.2013. After assignment of loan to Kotak Mahindra Bank Limited, the Kotak Mahindra Bank Limited had stepped into shoes of M/s Citi Financial Consumer Finance (India) Limited, and as such, Kotak Mahindra Bank Limited is now secured creditor of loan, therefore, Kotak Mahindra Bank Limited is not competent to take SARFAESI action for recovery of dues, as loan has been assigned by financial institution (M/s Citi Financial Consumer Finance (India) Limited) to Bank (Kotak Mahindra Bank Limited). Before the Tribunal a judgment dated 16.07.2015 passed by Bombay High Court in Writ Petition No 722 of 2015 (Kotak Mahindra Bank Limited Vs. Trupti Sanjay Mehta and others) was cited by the borrowers, wherein Bombay High Court framed the following issues:- “Whether the Bank to whom a debt has been assigned by the Non-Banking Financial Corporation (NBFC) is entitled to adopt proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act)?” 7. Trupti Sanjay Mehta and others) was cited by the borrowers, wherein Bombay High Court framed the following issues:- “Whether the Bank to whom a debt has been assigned by the Non-Banking Financial Corporation (NBFC) is entitled to adopt proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act)?” 7. The Bombay High Court had considered the aforesaid issues and answered in negative. In reply to the said argument, it was contended on behalf of Kotak Mahindra Bank Limited that the said order of Bombay High Court was assailed before the Apex Court through Special Leave to Appeal (C ) No. 20885 of 2015, in which the Apex Court stayed the order dated 16.07.2015 of Bombay High Court vide order dated 22.09.2015, and thereafter, on 8.10.2015 another order was passed by the Apex Court directing that interim order passed on the earlier occasion shall remain in force till the pronouncement of judgment. The Debts Recovery Tribunal, Lucknow considering the facts and circumstances of the case as well as submissions raised in the matter directed the parties concerned to maintain status quo by interim order dated 30.07.2018. 8. It is also pointed out on behalf of the applicant that M/s Citi Financial Consumer Finance India Limited had also filed execution petition No. 993 of 2016 before District Judge, Ghaziabad, but the same was dismissed in default. Apart from arbitration proceedings and proceedings under SARFAESI Act, M/s Citi Financial Consumer Finance India Limited filed complaint under Section 138 of Negotiable Instrument Act against co-accused Vikas Garg on account of dishonour of cheque, in which by judgment dated 17.10.2011 and order of sentence dated 21.10.2011 passed by Metropolitan Magistrate, Dwarka Courts, New Delhi, co-accused Vikas Garg has been convicted for the offence punishable under Section 138 of Negotiable Instrument Act and sentenced to undergo simple imprisonment for a period of one year apart from payment of compensation of Rs. 1,85,09,000/-to M/s Citi Financial Consumer Finance India Limited within six months and in default thereof he shall further undergo simple imprisonment for a period of six months. 1,85,09,000/-to M/s Citi Financial Consumer Finance India Limited within six months and in default thereof he shall further undergo simple imprisonment for a period of six months. The said order of conviction was challenged by co-accused Vikas Garg in Criminal Appeal No. 24 of 2015 under Section 374 of Code of Criminal Procedure, which has been allowed by the judgment and order dated 29.02.2016 of Special Judge CBI, (P.C. Act)-06, Tis Hazari Court Delhi, setting aside the judgment and order dated 17.10.2011 and order of sentence dated 21.10.2011 and acquitted the co-accused Vikas Garg on the charge under Section 138 of Negotiable Instrument Act. 9. It has also brought to the notice of the Court that after purchasing the property in question by Udit Kumar Mittal and his wife Smt. Neetu Mittal, possession of the property in question was not handed over to them by Vikas Garg, therefore, Udit Kumar Mittal and Smt. Neetu Mittal jointly filed Suit No. 840 of 2018 against Vikas Gopi Chand before the Civil Judge (Senior Division), Ghaziabad on 10.09.2018, which is still pending. Thereafter, Kotak Mahindra Bank Limited moved an application under Section 156 (3) Cr.P.C. dated 9.10.2018 seeking direction to S.H.O., P.S. Link Road, Ghaziabad to lodge FIR against the accused persons of this case. The said application dated 9.10.2018 has been allowed by the Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad by order dated 12.10.2018 directing the S.H.O., Link Road, Ghaziabad to lodge FIR in appropriate sections in the matter and investigate the case. In the aforesaid background, on 26.10.2018 FIR of Kotak Mahindra Bank Limited was registered against eight accused persons, namely Vikas Garg, Smt. Nidhi Garg, Vinay Garg, Smt. Deepika Garg, M/s Shiv Kumar Agarwal, M/s Tirupati Rice Mills Private Limited, Udit Kumar Mittal and Smt. Neetu Mittal, under Sections 406, 420, 467, 468, 471 and 120B IPC as case crime No. 0622 of 2018 at Police Station Link Road, District Ghaziabad. The applicant moved his bail application before the concerned court below, which has been dismissed vide order dated 24.10.2019 of Additional District and Session Judge/Special Judge SC/ST Act, Ghaziabad. 10. Sri. G.S. Chaturvedi, learned Senior Advocate after placing the aforesaid facts submitted that:- (i) Applicant is bona fide purchaser of the property in question after paying the sale consideration amount. The applicant moved his bail application before the concerned court below, which has been dismissed vide order dated 24.10.2019 of Additional District and Session Judge/Special Judge SC/ST Act, Ghaziabad. 10. Sri. G.S. Chaturvedi, learned Senior Advocate after placing the aforesaid facts submitted that:- (i) Applicant is bona fide purchaser of the property in question after paying the sale consideration amount. (ii) For purchasing the said property in question, the applicant and his wife have taken a loan of Rs. 1,42,00,000/-(Rupees one crore forty two lac only) from Citi Bank, but till date Citi Bank neither initiated any proceedings nor lodged FIR against the applicant. (iii) Informant Kotak Mahindra Bank Limited has no concern with the second loan amount of Rs. 1,42,00,000/-given by Citi Bank to the applicant. (iv) The responsibility of payment of second loan is upon the applicant and his wife Smt. Neetu Mittal, which is not subject matter of impugned FIR dated 26.10.2018 lodged by informant Kotak Mahindra Bank Limited. (v) It has been vehemently urged that in fact Udit Kumar Mittal, who is distant relative of Nidhi Garg has been cheated by Vikas Garg, Vinay Garg, Deepika Garg and Nidhi Garg by not mentioning the correct fact that said property was already mortaged by them in lieu of loan taken by them and creating a forged sale deed on 24.06.2011 for the property in question and by selling the said mortgaged property. (vi) In the sale deed dated 2.1.2012, it has clearly been mentioned that the said property in question is clean and clear and the same has neither been mortgaged nor any loan has been taken on the said property. (vii) It is submitted that in case aforesaid second loan is not paid by the applicant, the same can be recovered only by Citi Bank in accordance with law, and not by Kotak Mahindra Bank Limited. (viii) Matter under SARFAESI Act against the co-accused is sub-judice before Debts Recovery Tribunal, Lucknow, in which interim order dated 30.07.2018 of status quo has been passed. (viii) Matter under SARFAESI Act against the co-accused is sub-judice before Debts Recovery Tribunal, Lucknow, in which interim order dated 30.07.2018 of status quo has been passed. (ix) It is also submitted that in the present case required permission has not been obtained by R.B.I., therefore, jurisdiction under SARFAESI Act cannot be invoked unless and until permitted by R.B.I. It is vehemently urged that merely on the basis of deed of assignment dated 9.4.2013, by which first informant claims to have purchased the debts is illegal and no right can be claimed on the basis of said deed of assignment dated 9.4.2013. The loan amount involved in the matter cannot be recovered otherwise in due course of law. (x) The applicant is not party in the S.A. No.393 of 2014 before Debts Recovery Tribunal, Lucknow. (xi) There is no statutory bar that mortgaged property cannot be sold out. (xii) So far as issue regarding forged sale deed dated 24.06.2011 is concerned, the same was prepared by Vikas Garg showing the property in question was purchased by Vikas Gopi Chand S/o Gopi Ishwar Chand from Dr. R.K. Malhotra S/o D.S. Malhotra. The applicant considering the said forged registered sale deed dated 24.06.2011 to be genuine has purchased the property in question from Vikas Garg after paying total sale consideration amount of Rs. 1,66,00,000/- to him. (xiii) Offence as alleged against the applicant is purely civil in nature and nothing attracts a criminal offence against the applicant. (xiv) Admittedly, first loan amount of Rs. 1,65,80,000/-was taken by co-accused Vikas Garg, Nidhi Garg, Vinay Garg, Deepika Garg from M/s Citi Financial Consumer Finance India Limited, New Delhi on 28.11.2007. The applicant came in light after purchasing the property in question by registered sale deed dated 2.1.2012, therefore, there is no entrustment of the aforesaid first loan amount to the applicant. (xv) It is further submitted that since applicant is bona fide purchaser, therefore, there is no evidence of cheating inducing any person to deliver any property to him. It is also submitted that there is no evidence that applicant has committed any forgery with any document, because applicant has purchased the property in question through genuine registered sale deed dated 2.1.2012, as such essential ingredients to constitute offence under Sections 406, 420, 467, 468, 471 and 120B IPC are lacking in this case so far as applicant is concerned. Apart from aforesaid submissions, it is also argued by Sri G.S. Chaturvedi that considering the allegations against the applicant in the matter, the case against the applicant will not travel beyond the offence under Section 422 IPC, which is bailable. Section 422 IPC is reproduced as under:- “422. Dishonestly or fraudulently preventing debt being available for creditors.—Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to any other person from being made available according to law for payment of his debts or the debts of such other person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” (xvi) The allegations against the applicant are false. Informant Kotak Mahindra Bank Limited on becoming unsuccessful in proceeding before Debts Recovery Tribunal, Lucknow and on filing civil suit no. 840 of 2018 by the applicant on 10.09.2018 got the FIR dated 26.10.2018 registered through an application under Section 156(3) Cr.P.C. dated 9.10.2018. (xvii) It is also submitted that purchasing any property, filing any suit or availing any statutory remedy by the applicant cannot be said to be an offence. (xviii) Lastly, it is submitted that the applicant is neither previously convict nor involved in any other case and he is languishing in jail since 10.10.2019, therefore, applicant is liable to be released on bail. The applicant undertakes that in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. 11. Per contra, learned Additional Government Advocate for the State of U.P. as well as Sri Imran Ullah, learned counsel appearing on behalf of first informant vehemently opposed the bail by contending that:- (i) All the accused persons were in collusion with each other and under the pre-planned manner, the co-accused Vikas Garg sold the mortgaged property in question to Udit Kumar Mittal and his wife Smt. Neetu Mittal, who are relative of Vikas Garg on the basis of forged sale deed dated 24.06.2011 showing that same has been executed by Dr. R.K. Malhotra to him, while the said property was already sold by Dr. R.K. Malhotra to Bhagwati Rustagi and Rashmi Rustagi through sale deed dated 16.12.1993, which was later on already purchased by Vikas Garg, Vinay Garg and Deepika Garg by registered sale deed dated 16.09.2005. R.K. Malhotra to him, while the said property was already sold by Dr. R.K. Malhotra to Bhagwati Rustagi and Rashmi Rustagi through sale deed dated 16.12.1993, which was later on already purchased by Vikas Garg, Vinay Garg and Deepika Garg by registered sale deed dated 16.09.2005. (ii) Much emphasis has been given on behalf of the informant that sale deed dated 24.06.2011 is forged document. Dr. R.K. Malhotra has not executed any sale deed. It is also submitted that name and old photographs of Dr. R.K. Malhotra has been used by the co-accused Vikas Garg in collusion with other accused in preparing forged sale deed dated 24.06.2011. (iii) It is next submitted that till date possession of property in question is with co-accused Vikas Garg. (iv) It is next submitted that co-accused Vikas Garg, Nidhi Garg, Vinay Garg and Deepika Garg are responsible for payment of first loan amount of Rs. 1,65,80,000/-alongwith interest and other charges threreon and Udit Kumar Mittal and his wife Neetu Mittal are also responsible for payment of second loan amount of Rs. 1,42,00,000/-alongwith interest and other charges thereon. (v) It is also submitted that till date neither aforesaid loan has been paid nor possession of said property, which has been mortgaged in lieu of first loan dated 28.11.2007 has been handed over to Kotak Mahindra Bank Limited, who has purchased the debt by deed of assignment dated 9.4.2013 from M/s Citi Financial Consumer Finance India Limited. (vi) It is also pointed out that the main accused Vikas Garg is still absconding, therefore, bail application of applicant is liable to be rejected. 12. After hearing the rival submissions of the learned counsel for the parties, I find that applicant as well as informant both have come up with the stand that sale deed dated 24.06.2011 of the same property (C-51, Ramprastha Colony, Ghaziabad) has been prepared fraudulently by co-accused Vikas Garg changing his name as Vikas Gopi Chand. It is also admitted to the parties that legally sale deed dated 24.06.2011 in question could not be executed by Dr. R.K. Malhotra because, said property was already sold by Dr. R.K. Malhotra by sale deed dated 16.12.1993 to Bhagwati Rustagi and Rashmi Rustagi, and subsequently, said property was purchased by co-accused Vikas Garg alongwith Vinay Garg and Deepika Garg on 16.09.2005 and taken loan of Rs. R.K. Malhotra because, said property was already sold by Dr. R.K. Malhotra by sale deed dated 16.12.1993 to Bhagwati Rustagi and Rashmi Rustagi, and subsequently, said property was purchased by co-accused Vikas Garg alongwith Vinay Garg and Deepika Garg on 16.09.2005 and taken loan of Rs. 1,65,80,000/-from M/s Citi Financial Consumer Finance India Limited mortgaging the said property, therefore, main accused in this case is Vikas Garg, because he despite knowing the fact that the said property in question has already been mortgaged against loan of Rs. 1,65,80,000/-given by M/s Citi Financial Consumer Finance India Limited, New Delhi, has prepared forged sale deed dated 24.06.2011 of the same property in question showing it to be sold by Dr. R.K. Malhotra in his favour mentioning his name as Vikas Gopi Chand S/o Gopi Ishwar Chand and, thereafter, concealing the aforesaid fact of taking loan and mortgaging the said property further executed the registered sale deed dated 2.1.2012 in favour of applicant only with a view to escape from his liability to pay the said loan. It is also admitted fact that possession of the said property in question has not been handed over by the co-accused Vikas Garg to the applicant despite executing sale deed dated 2.1.2012 in favour of applicant. Though, it is alleged by the prosecution that applicant was also in connivance with other co-accused, but could not show anything on record before this Court that applicant was having knowledge prior to sale deed dated 2.1.2012 that said property in question had already been mortgaged by co-accused Vikas Garg. Inference in this regard has been drawn by the prosecution only on the basis that applicant is relative of co-accused Vikas Garg, while applicant has come with the stand that applicant is bona fide purchaser of the property in question and applicant has also been cheated in this case by co-accused Vikas Garg. There is no dispute that proceeding under SARFAESI Act in the matter is still subjudice before D.R.T., Lucknow and no suit for cancellation of sale deeds dated 24.06.2011 and 02.01.2012 has been filed by any person. Kotak Mahindra Bank Limited and Citi Bank are free to avail statutory remedy available to them in the matter. In view of above, I find that case of present applicant is distinguishable from the case of co-accused Vikas Garg, who is main person in this case and is absconding. 13. Kotak Mahindra Bank Limited and Citi Bank are free to avail statutory remedy available to them in the matter. In view of above, I find that case of present applicant is distinguishable from the case of co-accused Vikas Garg, who is main person in this case and is absconding. 13. Considering the facts and circumstances of the case, keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed. 14. Let the applicant Udit Kumar Mittal, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant will not indulge in any unlawful activities. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 15. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. 16. It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.