*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st April, 2011.
+ W.P.(C) 2322/2008
RAM MANI PANDAY ..... Petitioner
Through: Petitioner in person.
Versus
PNB HOUSING FINANCE LTD. & ANR. ..... Respondents
Through: Mr. R.K. Dhawan, Mr. Rahul Gaur &
Mr. Pulkit Sachdeva, Advocates for
PNB Housing Finance Ltd.
Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates for MCD.
S.I. Hukum Singh, P.S.-Seemapuri.
AND
+ CONT.CAS(C) 226/2008
RAM MANI PANDAY ..... Petitioner/Relator
Through: Petition in person.
Versus
GURMEET SINGH & ANR. .... Respondents/Alleged contemnors
Through: Mr. R.K. Dhawan, Mr. Rahul Gaur &
Mr. Pulkit Sachdeva, Advocates for
PNB Housing Finance Ltd.
Mr. S.N. Gupta & Vivek Singhal,
Advocates for R-2.
Mr. Ajay Arora & Mr. Kapil Dutta,
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 1 of 12
Advocates for MCD.
AND
+ CONT.CAS(C) 757/2009
RAM MANI PANDAY ..... Petitioner/Relator
Through: Petitioner in person.
Versus
SHIV KUMAR AND ORS ... Respondents/Alleged contemnors
Through: Mr. R.K. Dhawan, Mr. Rahul Gaur &
Mr. Pulkit Sachdeva, Advocates for
PNB Housing Finance Ltd.
Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates for MCD.
S.I. Hukam Singh, for SHO-
Seemapuri.
AND
+ CONT.CAS(C) 770/2010
RAM MANI PANDAY ...... Petitioner/Relator
Through: Petitioner in person.
Versus
SHIV KUMAR & ORS .... Respondents/Alleged contemnors
Through: Mr. R.K. Dhawan, Mr. Rahul Gaur &
Mr. Pulkit Sachdeva, Advocates for
PNB Housing Finance Ltd.
Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates for MCD.
Mr. Amit Mehra, Adv. for Mr. Ajay
Verma, Adv. for DDA.
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 2 of 12
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition was filed seeking to restrain the respondent no.1 M/s
P.N.B. Housing Finance Limited from taking any action under the
Securitization and Reconstruction of Financial Assests and Enforcement of
Security Interest (SARFAESI) Act, 2002 with respect to the property
constructed on Plots no.D-1 & D-2, Dilshad Colony, Delhi – 110 095 and for
quashing all actions already taken and from visiting, trespassing or damaging
the said property. The petitioner also claims compensation for the damage
caused to him.
2. The petition came up before this Court first on 25 th March, 2008 when
the Judge was not holding the Court and the same was adjourned to 21 st
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 3 of 12
May, 2008. The petitioner filed an application for early hearing and which
was listed on 2nd April, 2008 when early hearing was allowed and the writ
petition taken up for hearing and notice thereof issued and vide ex parte
order a Court Commissioner appointed to visit the property and to report on
occupation thereof and status quo qua title, possession and construction of
the property ordered.
3. It is the case of the respondent no.1 that the petitioner without
intimating the respondent no.1 which had been served advance copy of the
writ petition, got the hearing of the writ petition preponed to obtain the ex
parte order aforesaid. It is further the case of the respondent no.1 that the
petitioner on 2nd April, 2008 misrepresented to this Court that the respondent
no.1 had after the filing of the present writ petition taken law into its own
hands and illegally and forcibly sealed the property with the goods of the
petitioner inside. The respondent no.1 on the basis of documents since filed
has shown that in pursuance to the proceedings initiated under the
SARFAESI Act it had taken possession of the property on 15th January,
2007 and had auctioned the same and executed and registered the sale
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 4 of 12
certificate in the name of the highest bidder M/s Bright Buildwell (P) Ltd. on
31st March, 2008 and on the same day delivered actual physical possession
of 26 flats in the property to the said purchaser and symbolic possession of
the remaining 06 flats in the property which had been unauthorizedly
occupied by the petitioner and his family members to the said purchaser. It is
the case of the respondent no.1 that the petitioner, though in the know of all
the said facts, concealed the same in the present petition and from this Court
on 2nd April, 2008.
4. Be that as it may, the petitioner who had originally impleaded the
respondent no.1 as the sole respondent; thereafter impleaded the said M/s
Bright Buildwell (P) Ltd. as respondent no.2 which has also filed a counter
affidavit to the petition.
5. The petitioner appearing in person and the counsel for the respondent
no.1 and the counsel for the respondent no.2 have been heard.
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 5 of 12
6. The writ petition is lengthy, without any clarity, full of legalese, not
disclosing the facts in seriatim. The petitioner appearing in person has been
unable to do any better during the hearing.
7. The counsels for the respondents no.1&2 have contended that the 32
flats in the property were mortgaged by 32 persons claiming to be purchasers
thereof, with the respondent no.1 and the petitioner was the guarantor in all
the 32 transactions; that the petitioner now on the basis of unregistered
Agreement to Sell dated 22nd December, 2001 claims title to the flats and
denies that he had stood as the guarantor; that the Agreements to Sell dated
22nd December, 2001 relied upon by the petitioner and under which the
petitioner claims to have been put into possession of the flats cannot be
relied upon, being required to be compulsorily registered vide the
Registration (Amendment) Act, w.e.f. 24th September, 2001 and being
unregistered. It is further contended that with respect to the 06 flats
unauthorizedly occupied by the petitioner, suits for possession have been
filed and are pending. It is further contended that the remedy if any of the
petitioner is under Section 17 of the SARFAESI Act by way of appeal to the
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 6 of 12
Debt Recovery Tribunal against the action of the respondent no.1 of sale of
property to the respondent no.2 and the present writ petition is misconceived
and liable to be dismissed.
8. The challenge by the petitioner to the action of the respondent no.1
under the SARFAESI Act insofar as can be determined from the pleadings is
on the ground, that the respondent no.1 having itself labeled the transaction
of mortgage of the flats to itself as forged and fabricated, is not entitled to
take action under the SARFAESI Act with respect thereto. The petitioner in
this regard relies upon the order dated 30th July, 2004 of the Managing
Director of the respondent no.1 sanctioning prosecution of Shri D.S. Rawat,
the then Branch Incharge of the respondent no.1. The said Sanction Order
records that it was the case of the respondent no.1 that Shri D.S. Rawat the
then Branch Manager of the Noida Branch of the respondent no.1 entered
into a criminal conspiracy with the petitioner and certain other persons
object of which was to cheat the respondent no.1 and cause undue pecuniary
loss to the respondent no.1 to the tune of ` 288.80 lacs and corresponding
gain to self and the alleged co-conspirators. The charge of the respondent
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 7 of 12
no.1 against its employee Shri D.S. Rawat was that he sanctioned and
disbursed the said `.288.80 lacs to 32 borrowers including the petitioner and
his wife and stated to be employees of Vigilance to City Crime of which the
petitioner was the Dy. Director (Administration), as individual housing loans
for the purchase of 32 flats aforesaid constructed by M/s. Sewa Builders and
Constructions. The Sanction Order further records that the 32 borrowers
were in fact non-existent.
9. The petitioner also relies upon the order dated 13th May, 2010 of the
Addl. District Judge, Delhi rejecting the plaint in the 32 suits filed against
the 32 borrowers aforesaid and the petitioner herein on the ground inter alia
that since it was the case of the respondent no.1 itself including in the
FIR/prosecution lodged pursuant to the aforesaid Sanction Order that the
borrowers were non-existent and the documents had been forged and
fabricated, they could not on the basis of such forged and fabricated
documents maintain a suit for recovery of money due under the said
documents and the remedy if any of the respondent was to file a suit for
recovery of damages against the accused persons.
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 8 of 12
10. The counsel for the respondent no.1 has stated that in an appeal
preferred to this Court against the judgment aforesaid of the Addl. District
Judge, the operation thereof has been stayed.
11. The petition also extensively relies upon the preliminary reports in
various prosecutions/complaints made by the respondent no.1 and by the
petitioner against the respondent no.1 and its officials.
12. No Court/Fora till now has returned any finding qua the documents of
borrowing and mortgage with the respondent no.1. It is only the case/charge
of the respondent no.1 that upon being unable to recover the monies
advanced, its investigation shows the borrowers to be non-existent. The
Addl. District Judge also, whose judgment in any case is subject matter of
appeal has also merely rejected the plaint and not returned any finding of the
borrowers being non-existent or of the documents being forged/fabricated. It
thus today cannot be said that the respondent no.1 could not vis-à-vis the
said property claim itself to be a secured creditor or could not have taken the
action under the SARFAESI Act.
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 9 of 12
13. Else, the writ petition entails highly disputed questions of fact
required to be established by leading evidence. The Apex Court in Mardia
Chemicals Ltd. v. Union of India II (2004) BC 397 (Supreme Court) in para
51 noticed that the remedy of a Civil Suit may be available when fraud is
alleged. Else, the SARFAESI Act is a complete Code and the remedy of the
petitioner if aggrieved from any action is thereunder only and cannot be
permitted by way of this writ petition. The said disputed questions of fact are
in any case pending adjudication before several Foras as aforesaid.
Moreover, it is not a case where the petitioner can claim to be totally outside
the transaction. It is the case of the respondent no.1 that the petitioner was
very much a part of the transaction of disbursement of loan with respect to
32 flats on the said property and is the brain behind the transaction intended
to cause damage to the respondent no.1
14. I intentionally refrain from commenting on the other factual
controversy and which may otherwise prejudice the other remedies if any
availed by the petitioner. The writ petition is therefore found to be without
any merit.
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 10 of 12
15. Cont.Cas(C) 226/2008 has been filed by the petitioner/Relator against
the Branch Manager of the respondent no.1 and the Director of the
respondent no.2 averring that they have defaced and damaged the property
inspite of order dated 2nd April, 2008. Notice thereof was issued. Directions
thereafter were sought in the said contempt petition against the MCD also
and several other Directors of the respondent no.2 impleaded. Needless to
state that the allegations have been denied.
16. Cont.Cas(C) 757/2009 has been filed against the Directors and
officers of both the respondents as well as against Police officials alleging
that they had after 2nd April, 2008 trespassed into the property and got sale
deeds registered inspite of the order of status quo. No notice of the same has
been issued till now.
17. Cont.Cas(C) 770/2010 has been filed with respect to the respondent
no.2 having allowed various other persons into possession of the flats inpsite
of the order of status quo. Notice thereof has not been issued as yet.
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 11 of 12
18. In view of the fact that the allegation against the petitioner is of
having duped the respondent no.1 of public monies to the extent of ` 288.80
lacs, this Court in the exercise of its discretionary contempt jurisdiction does
not deem it appropriate to at the instance of the petitioner enter into any
inquiry as sought. Moreover, the nature of the averments in the contempt
cases is such that the same will necessarily entail factual inquiry and it is not
deemed expedient to conduct the same when the writ petition itself has been
dismissed and the petitioner relegated to appropriate remedy. Yet further, the
interim order of which contempt is alleged was issued when respondent no.1
was the sole respondent and there is no order extending the same to the
respondent no.2, who since prior to the said interim order, is the purchaser in
possession of the property.
Accordingly, the writ petition as well as all the contempt petitions are
dismissed with no order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
21st April, 2011
pp
W.P.(C) 2322/2008, CONT.CAS(C) 226/2008, CONT.CAS(C) 757/2009 & CONT.CAS(C) 770/2010 Page 12 of 12