Court No. - 40
Case :- WRIT - C No. - 17777 of 2017 Petitioner :- Punjab National Bank Respondent :- D.M., Ghaziabad And 4 Others Counsel for Petitioner :- Ashok Shankar Bhatnagar Counsel for Respondent :- C.S.C.,Mayank Agarwal,Ramendra Nath Tiwari
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Shashi Kant,J.
Heard Sri Ashok Bhatnagar, learned counsel for the petitioner-bank and learned Standing Counsel for respondent no. 1-District Magistrate, Ghaziabad as well as Sri Saroj Giri, learned counsel appearing for respondent nos. 2, 3, 4 and 5.
The petition has been filed praying for a writ of certiorari to quash the order dated 9th January, 2017, Annexure No. 15 to the writ petition, which is an order of the District Magistrate, Ghaziabad refusing to secure the possession of the property which is subject matter of proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Interest Act, 2002 (hereinafter referred to as "the Act, 2002") on two grounds firstly, that there is an interim order operating dated 21.11.2016, passed by the Debt Recovery Tribunal and secondly, the documents that were tendered before the Bank by the respondent defaulting Company were not duly stamped. Consequently, in view of the report obtained from and furnished by the Assistant Stamp Commissioner, Ghaziabad dated 24th June, 2016, there is a deficiency of Rs.15,69,100/- of stamp duty, as a result whereof the Bank cannot claim possession in terms of the Act, 2002.
The petitioner-bank has also challenged the communication of the Assistant Stamp Commissioner dated 24th June, 2016 and has prayed that the respondents be commanded to hand over possession of the property in question as the petitioner-bank is entitled to take possession thereof.
A counter affidavit has been filed on behalf of the District Magistrate, Ghaziabad and the same stand has been reiterated as taken in the impugned order firstly, in view of the interim order dated 21.11.2016 passed by the Debt Recovery Tribunal, no further steps can be taken and secondly, the loan document being insufficiently stamped the petitioner-bank cannot claim any such right of possession.
Sri Bhatnagar, learned counsel for the petitioner while advancing his submissions has urged that the District Magistrate has exceeded in authority in proceeding to determine sufficiency of stamp duty on the loan document which is entirely beyond the purview of the proceedings under Section 14 of the Act, 2002.
Sri Bhatnagar has relied on a Supreme Court decision in the case of Standard Chartered Bank Vs. V. Noble Kumar and Others, 2013 (9) SCC 620 to question the correctness of the order passed by the District Magistrate.
He has informed the Court that proceedings under Section 7 of the Act, 2002 have now been initiated under the Insolvency and Bankruptcy Code, 2016 that have been entertained in Case No. IB-20/ALD/2018 by the Company Law Tribunal – Punjab National Bank Vs. M/s Kunj Forging Pvt. Ltd. where arguments have already been heard and the orders have been reserved on 17th April, 2018. He therefore submits that now no further proceedings can be undertaken in terms of the Act, 2002, inasmuch as the jurisdiction now to resolve this dispute pertaining to secure the assets falls within the purview of the National Company Law Tribunal under the Insolvency and Bankruptcy Code, 2016.
He therefore submits that the present writ petition would therefore now survive for the limited determination about observations made by the District Magistrate, Ghaziabad in respect of insufficiency of the stamp duty.
Learned Standing Counsel submits that upon having come to know of the said insufficiency permission has been sought by the letter dated 12th May, 2017 from the State Government for taking action as the dispute of insufficiency has been noticed after a lapse of almost six years.
From the facts that have been now stated before this Court and the stand taken by the District Magistrate, Ghaziabad there is no need to further examine the correctness or otherwise of the order of the District Magistrate with regard to taking of possession as now the matter would be governed by any orders to be passed by the National Company Law Tribunal.
However, challenge raised to the observations made in respect of the deficiency of stamp duty, we make it clear that the observations of the District Magistrate will not be any impediment in the passage of the Bank to take any such objection before any appropriate forum related to any such dispute that may arise in future. The order of the District Magistrate impugned dated 9th January, 2016 therefore to the extent of observations made in relation to the insufficiency of stamp duty cannot be enforced in order to cause prejudice to the petitioner-bank inasmuch as even if any such insufficiency is located, same will be within the jurisdiction of the authorities under the Stamp Act who shall be competent to deal with the matter in accordance with law.
We therefore dispose of this writ petition subject to the aforesaid observations.
Order Date :- 24.4.2018 A. Verma