TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 192
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....udge & JMFC in PC No. 389/2016 referring the matter for investigation and consequential registration of FIR in Crime No. 152/2016 by the Hubballi Sub-Urban Police Station for the alleged offences punishable under Sections 511, 109, 34, 120B, 406, 409, 420, 405, 417 and 426 of IPC be quashed. In the said proceedings the appellants herein are arrayed as Accused Nos. 9 and 11 respectively. The appellants herein were at the relevant point in time working as the Deputy General Managers in the Canara Bank (Accused No.1), Circle Office at Hubbali, Karnataka. 3. The brief facts leading to the present situation is that the respondent No.2 herein (hereinafter referred to as the 'Complainant') had approached the Canara Bank at Hubballi pursuant to which credit facilities were sanctioned on 16.03.2009. The total credit facility sanctioned amounted to Rs. 2.68 crores. The property bearing Survey No. 213/2002 situated at Anchatageri Village, Hubballi measuring 3 acres 2 Guntas was offered as security for the said loan and a charge was created. The said property is hereinafter referred to as the 'Secured Asset'. As per the case of Canara Bank, the Complainant had not repaid the loan amount and ....
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....mplainant is stated to have filed an Appeal before the Debts Recovery Appellate Tribunal, Chennai ('DRAT' for short) which is also stated to be dismissed. 5. It is in the said backdrop the Complainant filed the complaint under Section 200 of the Cr.P.C in the Court of the Principal Civil Judge (Junior Division) & JMFC, Hubballi in P.C. No.389/2016 alleging that the Officers of the Canara Bank in connivance with the auction purchaser had caused wrongful loss to the Complainant. To the said complaint, apart from the Canara Bank, the highly placed officials, the appellants herein, the valuers and the auction purchaser were shown as the accused. The said complaint being taken on record, the learned Magistrate has referred the same for investigation under Section 156(3) of Cr.P.C. and to submit a report. Based on such direction the FIR No.0152/2016 is registered. The appellants, therefore, claiming to be aggrieved had preferred the Criminal Petition under Section 482 of Cr.P.C in Criminal Petition No.100323/2018, which was dismissed by the High Court through the order dated 21.01.2019 which is assailed herein. 6. Heard Mr. Brijesh Kumar Tamber, learned counsel appearing for the appe....
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....ismissed and a direction was issued to the police to file the final report. 8. The learned senior counsel for the Complainant would on the other hand rely on the identical criminal petitions which had been dismissed by the High Court insofar as Accused Nos.1 and 12 are concerned. It is contended that though the loan of Rs. 2.68 Crores was sanctioned, only a sum of Rs. 90 lakhs was disbursed and the remaining amount was adjusted as repayment. It is further contended that the secured asset which was worth more than Rs. 4 Crores was undervalued and ultimately sold for Rs. 1.10 Crores in connivance with the auction purchaser who is arrayed as Accused No.15. It is further contended that the under valuation of the mortgage property is not the only issue but the issue with regard to the non-disbursement of the entire loan and the non-consideration of the three offers made by the Complainant for One Time Settlement ('OTS' for short) are all aspects which are to be investigated upon. It is contended that in such circumstance the investigation as ordered by the learned Magistrate was justified and the High Court has appropriately refrained from interfering in the matter at this stage. It i....
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....plaint was immediately filed. On the other hand, when the auction notice dated 13.10.2013 was issued, no grievance was made out by the Complainant before any judicial forum. However, the sale did not take place for want of purchasers and a fresh auction notice dated 30.12.2013 was issued indicating the reserve price at Rs. 1.10 Crores. 11. At that stage the Complainant approached the High Court of Karnataka, Dharwad Bench in a Writ Petition filed under Articles 226 and 227 of the Constitution of India in W.P. No.100382/2014. The auction notice dated 30.12.2013 was impugned therein. The allegation which is now sought to be put forth in the complaint filed under Section 200 of the Cr.PC wherein the appellants herein along with others have been accused of with regard to the under valuation of the secured assets was the very contention which was urged in the said Writ Petition. The learned Single Judge in the said Writ Petition had taken note of the contention that the reserve price in respect of the secured assets was fixed at Rs. 228.51 Lakhs initially, thereafter in the subsequent auction conducted the same was fixed at Rs. 1.10 Crores and has thereafter concluded as hereunder: ....
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....lue and clear off the debts due by it to the respondent which even according to petitioner is around Rs. 285.71 lakhs as on 31.01.2014 (which was Rs. 261 lakhs as on 11.10.2013). However, without taking said recourse, petitioner is attempting to stall the auction proceedings which is not permissible inasmuch as the respondent-Bank being a nationalised Bank which is the custodian of public money is taking steps to recover its dues by auctioning the property through e-auction and the action of respondent-Bank cannot be flawed. Respondent Bank has adopted one of the courses suggested by the Hon'ble Apex Court in United India Assurance case referred to supra namely "Public Auction" by which process there would be larger participation. If at all the auction is to be set-aside for any reason whatsoever, petitioner can take recourse to the remedy available under SARFAESI Act and get the sale set aside. However, petitioner cannot be permitted to stall the auction itself under extraordinary jurisdiction of this Court." (emphasis supplied) 12. While arriving at such conclusion the learned Single Judge had kept in view the provisions as contained in the SARFAESI Act, as also the decision....
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.... Since there was delay in filing, an application in I.A. No.4482/2015 was filed under Section 5 of the Limitation Act seeking condonation of delay. The same was rejected on the ground of delay against which an appeal is said to have been filed before the DRAT and it was pending though it is now stated to be dismissed. It is at that stage when it was still pending the impugned complaint in P.C. No.389/2016 was filed, wherein through the order dated 20.05.2016 it had been referred to an investigation under Section 156 (3) of the Cr.PC. 14. The learned senior counsel for the Complainant no doubt referred to the Criminal Petition No.101162/2016 and Criminal Petition No.101258/2016 filed by the Accused Nos.1 and 12 being dismissed by the High Court and the same not being carried further and attaining finality. Though that be the position, in the instant case the appellants are before this Court to exercise the remedy available and as such the dismissal of the said petitions cannot prejudice their case when this Court is required to take a view on the matter though it has not been availed in the earlier cases. Further the learned senior counsel has also referred to the statements of tw....
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.... is vested with the power to set aside such auction at the stage after the secured creditor invokes the power under Section 13 of SARFAESI Act. This view is fortified by the decision of this Court in the case of Authorised Officer, Indian Overseas Bank & Anr. vs. Ashok Saw Mill (2009) 8 SCC 366 wherein it is held as hereunder: "34. The provisions of Section 13 enable the secured creditors, such as banks and financial institutions, not only to take possession of the secured assets of the borrower, but also to take over the management of the business of the borrower, including the right to transfer by way of lease, assignment or sale for realising secured assets, subject to the conditions indicated in the two provisos to clause (b) of subsection (4) of Section 13. 35. In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in subsection (4) of Section 13 taken by the secured creditor, to make an application t....