Hon'ble Mrs. Rekha Dixit,J.
(Delivered by Hon'ble Ramesh Sinha, J.)
1. This writ petition has been filed by the petitioner with the prayer to quash the F. I. R. dated 06.03..2016 which has been registered as Case Crime No. 226 of 2016 under Sections 420, 467, 468, 471, 406 & 506 I.P.C., Police Station Majhola, District Moradabad.
2. Sri Vishnu Dayal Agarwal, learned counsel appearing on behalf of private respondent No.1 is not present, though the matter is called out even in the revised list.
3. Heard Sri Mahabir Prasad Sarraf, learned counsel for the petitioners and Sri Ashish Pandey, learned A.G.A. for the State.
4. Learned counsel for the petitioner submitted that the petitioner is the Branch Manager of State Bank of Patiala and he was posted at Mansarovar Colony, Delhi Road, Moradabad and the impugned F.I.R. was lodged by respondent No.1 Nikhil Rastogi against one Abhishek Agarwal. He argued that the Branch Manager of the said Bank had granted loan of Rs.1.5 crores to M/s R. K. Builders through its proprietor, Sri Abhishek Agarwal (hereinafter referred to as the 'Borrower') for the purchase of industrial commercial free hold land/plot from Moradabad Development Authority (MDA), Moradabad against the creation of equitable mortgage created over the purchased property from the MDA by depositing the original title deed after purchase from the MDA. After purchase of the plot, finance was granted by the Bank. The borrower deposited the sale deed dated 29.06.2011 with the Bank on 30.06.2011 with the intention to create equitable mortgage for due repayment of the Bank loan of Rs.1.5 crores with interest, costs, charges etc.
5. The R. K. Builders sold the plots to Pradeep Kumar Rastogi and Saurabh Rastogi by executing sale deed dated 01.07.2011 and all the sale deeds executed by the borrower including the sale deeds stated in paragraph Nos. 10 to 14 of this petition in favour of the purchaser are executed and registered after the mortgage by deposit of title deed was created by the borrower in favour of the Bank.
6. He submitted that in view of the provisions of Section 59A of Chapter IV of Transfer Property Act, 1982 all the persons deriving any title from the borrower after the date of mortgage shall be deemed to be the mortgagor and in view of the provisions of Section 59A, the respondent No.1 is deemed to be the mortgagor and was liable to pay the Bank debt charged over that purchased property from the mortgagor.
7. As the borrower failed to maintain the banking discipline and to pay the loan regularly, the account of the borrower became Non Performing Assets (NPA) and the Bank proceeded against him under the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act (hereinafter referred to as 'SARFAESI Act'), 2002 and issue a demand notice under Section 13(2) dated 02.07.2015 upon the borrower which was duly served upon the borrower. As the borrower's account was irregular and became N.P.A. and he did not pay the loan amount for which notice under Section 13(2) was also issued to him, hence, the Bank petitioner No.1 served, pasted on the secured assets and published in two newspapers, the possession notice of the secured assets under Section 13(4) of the Act, 54 of 2002. After the Bank took notional possession of the secured assets of the borrower and published auction notice in Business Standard dated 01.10.2015, the borrower or the purchasers of the land from the borrower had not filed any written representation or letter stating their grievance.
8. The purchasers of the land from the borrowers used to visit the Bank for no dues certificate but the Bank did not issue any no dues certificate to them for which because of the land in mortgage to it and the Bank had rights over the same, the purchaser of the land from the borrower and the respondent No.1 threatened them that they will lodge an F.I.R. and drag the Bank and all its officers in criminal cases. The purchaser of the land from the borrower has formed a group and they are litigating in one or other name in the Civil Court, Moradabad and DRT Lucknow with the intention to delaying the recovery by auction.
9. Nikhil Rastogi and others have also filed a Civil Suit No. 704 of 2015 in the Court of Civil Judge (S.D.), Moradabad titled as 'Nikhil Rastogi Vs. State Bank of Patiala' seeking the relief of injunction not to auction the property mortgaged by M/s R. K. Builders against the Bank and further challenging the Bank's auction under the SARFAESI Act, 2002 of possession and thereafter not to auction. The said suit is pending. Nikhil Rastogi and others have also filed an application under Section 17 of SARFAESI Act, 2002 being S.A. No.666 of 2015 in the DRT Lucknow on 27.10.2015 seeking relief for quashing the auction notice published on 01.10.2015 and the same is also pending. Because of pendency of the said suits, etc. the Bank is not able to auction the mortgaged property, thus, the present F.I.R. has been lodged against the Bank and petitioner No.2.
10. Learned counsel for the applicant states that the impugned F.I.R. does not disclose any offence against the petitioners and it is only the misuse of the process of law though the dispute is purely civil and can be adjudicated only by DRT under Section 17 of SARFAESI Act, 2002 or in any case before the Civil Court and initiation of criminal prosecution of the petitioner is against the established proposition of law and in support of his argument he placed reliance of a judgment of Priyanka Srivastava and another Vs. State of U.P. and others, 2015 Law Suit (SC) 335, Criminal Appeal No.781 of 2012.
11. Learned AGA though opposed the prayer for quashing of impugned F.I.R., he did not dispute the fact that the proceedings under the SARFAESI Act are going on against the purchasers of the land from the borrower, namely, Abhishek Agarwal, proprietor of M/s R. K. Builders.
12. Considered the rival submissions of learned counsel for the parties, perused the impugned F.I.R. and records.
13. It appears from the record that the petitioner No.1, i.e., the Bank and petitioner No.2, i.e., the Branch Manager of the said Bank, an equitable mortgage was created by R. K. Builders through its proprietor Abhishek Agarwal for the purchase of industrial commercial freehold land/plot from the MDA and the original title deed of the land in question was deposited with the Bank by him on 30.06.2011. The R. K. Builders further sold the plot to the purchasers who were defaulted in payment of the loan amount to the Bank in question/petitioner No.1 and proceedings under the SARFAESI Act, 2002 were initiated by the Bank. Moreover, a civil suit has also been filed by some of the purchasers before the competent Civil Court and the recovery proceedings are pending before the DRT, Lucknow against the purchasers of the land from the borrower. So far as the petitioner No.1/Bank and petitioner No.2/Branch Manager of the said Bank are concerned, the impugned F.I.R. does not disclose any offence against them.
14. The case of the Bank is squarely covered by the judgment of the Apex Court in the case of Priyanka Srivastava and another Vs. State of U.P. and others, 2015 Law Suit (SC) 335, Criminal Appeal No.781 of 2012, wherein the Apex Court has held:
"When a citizen avails a loan from a financial institution, it his obligation to pay back and not play truant or for that matter play possum protection, Section 32 of SARFAESI Act - protection is granted to the Bank officials if the action is taken in good faith."
15. Thus, in view of the foregoing discussions, the impugned F.I.R. lodged against the concerned Bank and the petitioner No.2 only is hereby quashed.
16. Accordingly, this writ petition is allowed. No order as to costs.