Md. Mumtaz Khan, J. - (1.) The instant criminal revision has been preferred by the petitioner/company assailing the order dated October 17, 2017 passed by the learned Chief Metropolitan Magistrate, Calcutta in connection with MISCS 97655 of 2016/Regd. Misc 82 of 2016 whereby petitioner's prayer for stay of the operation of the order dated March 30, 2017 was rejected by the learned court below.
(2.) The fact leading to the instant revision is that O.P. No.4, State Bank of India through its authorized officer, filed an application under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002( hereinafter referred to as SARFAESI Act, 2002) on July 12, 2016 against M/s E.C. Bose and Co. Pvt. Ltd. and its directors, Sri Partha Sadhan Bose and Deborshi Sadhan Bose (borrower/guarantor) for taking possession of land with five storied commercial building lying and situated at 13A St. George Terrace, P.S. Hastings, Kolkata-22 for making default in payment of cash credit loan amounting to rupees six crore fifty lacs which was allowed by the learned Chief Metropolitan Magistrate vide order dated March 30, 2017. Thereafter on September 14, 2017 this petitioner filed an application praying for stay of the operation of the order passed on March 30, 2017 taking the plea that the petitioner is in possession of the same and there is an ad-interim order of injunction passed by the learned Judge VII th Bench, City Civil Court, Calcutta in Title Suit No.1470 of 2016 on 11th November 2016 restraining the opposite parties from disturbing the peaceful possession and enjoyment of the petitioner in the said premises but the same was rejected by the learned Chief Metropolitan Magistrate, Calcutta by the impugned order. Being aggrieved and dissatisfied with the same this petitioner has preferred the instant criminal revision challenging the impropriety of the said order.
(3.) It was submitted by Mr. Hiranmoy Bhattacharya, the learned advocate appearing for the petitioner, that this petitioner/company through its director Chandan Bose filed a Title Suit being No. 1470 of 2016 against M/s. E.C. Bose and Co. Pvt. Ltd. as also the present opposite parties No. 2 and 3 and got an ad interim order of injunction on November 11, 2016 whereby opposite parties/defendants were restrained from disturbing the peaceful possession and enjoyment of this present petitioner in the suit property for a period of 3 weeks which was extended from time to time. It was also submitted by Mr. Bhattacharya that the defendants/bank appeared in the said suit and filed an application under Order 7 Rule 11 of the Code of Civil Procedure which is yet to be disposed of. Mr. Bhattacharya further submitted that the said interim order of injunction was extended even after appearance of the defendant/bank and in their presence but inspite of their knowledge of the order of injunction, Chief Manager of the State Bank of India, Stressed Assets Recovery Branch, State Bank of India, Mr. Abhijit Naskar, filed an affidavit on February 22, 2017 before the learned Chief Metropolitan Magistrate, Calcutta falsely stating that there was no order of stay from any court of law with regard to the mortgaged property of M/s. E.C. Bose and Co. Pvt. Ltd. and the learned Chief Metropolitan Magistrate being in dark about the existence of the aforesaid ad-interim order of injunction allowed the application under Section 14 of the SARFAESI Act, 2002 for taking over possession of the suit premises. According to Mr. Bhattacharya that order was obtained by practicing fraud upon the court and for this reason the said order should be recalled. He further submits that inspite of drawing the attention of the court, the learned Chief Metropolitan Magistrate passed the impugned order dismissing the application for stay. He also submitted that against the order impugned a petition for modification/recalling had also been filed before the learned Chief Metropolitan Magistrate.;