Sujit Narayan Prasad,J. - (1.) This writ petition is under Article 226 of the Constitution of India in which the following prayers have been made:- (i) For quashing the order dated 20th February, 2017 (Annexure-3), passed by the Respondent No. 2 in exercise of the power conferred under Section 14 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (in short 'SARFAESI Act, 2002) authorizing his subordinate authority to remove the petitioner and its officials, workers from the factory and office premises of the petitioner company and seal the same by taking over physical possession of entire movable and immovable property of the petitioner as being without jurisdiction, fraudulent, without authority of law; (ii) To direct and command the respondent-authorities to remove the lock and unseal from the premises with immediate effect to the petitioner and restore back the possession of premises at Hirodih within Jainagar Police Station of Koderma District. (iii) To Award reasonable compensation against the authorities for illegality committed resulting into serious damage/loss of reputation and the good will of the petitioner Company and for loss and damage done to the properties of the Company for a sum of Rs.5,00,00,000/-. (iv) To pass an order/direction commanding upon the authorities to get the matter of banking scandal of more than two hundred core syphoned away clandestinely in collusion with State Bank officials and sham loanee so that the culprits responsible for huge depredation of public money may be caught hold of;
(2.) The factual background of the case, as per the pleading made in the writ petition is that a Company in the name of Gaday Iron and Steel Company Ltd. having its registered office in Kolkata went into liquidation and by order of the Hon'ble Kolkata High Court passed sometime in the year 1982, the official liquidator took over possession of assets of the said company situated at Village Hirodih in the District of Koderma, Jharkhand, who has published a notice for auction of the properties whereupon Bihar Industrial Development Corporation (in short 'BSIDC'), A Government of Bihar company filed its quotation for purchase of the properties of the said Company, in total a sum of Rs.One crore 10 Lakh. The offered price of the aforesaid Company was approved by the Hon'ble Apex Court in Civil Appeal no. 1513 of 1982 and thereafter, a sale deed was executed by the official liquidator, Kolkata High Court in favour of the B.S.I.D.C. on 17.07.2009, which was ultimately registered by the District Sub Registrar, Koderma on 06.09.2011 and in view thereof, the BSIDC has become the lawful owner of the properties of Gaday Iron and Steel Company Ltd. with effect from 17.07.2009 for the entire immovable properties described in the schedule of properties, but, since the B.S.I.D.C. was not in a position to run the industry, as such, it decided to sell out the said factory and all assets attached to it. Accordingly, after following due process, the B.S.I.D.C. had executed a Sale Deed in favour of the petitioner company for total consideration of Rs.16,00,00,000/- by Registered Deed No. 624, dated 05.03.2012 and the possession of the Factory and properties of BSIDC was taken over by the petitioner with effect from 05.03.2012 and thereafter, it has invested a huge amount for its infrastructural development, but, all of a sudden, the petitioner came to know about pendency of a SARFAESI proceeding, when the police force came to the factory premises of the petitioner on 04.01.2019, which was for execution of an order, passed by the Deputy Commissioner, Koderma, who forcibly taken over the possession of the entire properties and handed over possession in favour of the Respondent-SBI (SAMB) Bank, Kolkata and when, he has got copy of the order dated 20th February, 2017, passed by the Deputy Commissioner, Koderma under Section 14 (2) of the SARFAESI Act, 2002 and it is only thereafter, the petitioner has obtained a copy of the purported Lease Deed dated 24.09.2007, sworn to have been executed in between the petitioner MSPL and the BSIDC on the one part and M/s. Jupiter Spun Pipe and Casting Pvt. Ltd., a Company registered in Kolkata through one Shri Nabrun Bhattacharjee as its Managing Director on the second part, but, on going across the aforesaid Lease Deed, the signature of the MSPL and B.S.I.D.C. have been found to be forged one. Thereafter, the petitioner has filed an application on 30th April, 2019 before the Respondent No. 2 for recall of the order on account of the fraud played by the Respondent Nos. 5 to 7 and brought the documents namely the two transfer deeds and the alleged lease deed on record, but having not done so, the petitioner left with no option, has filed the instant writ petition. The ground agitated in the writ petition is that since the entire property, the subject matter of the dispute, was under control, possession and legal ownership of the Official Liquidator of Hon'ble Kolkata High Court up to 06.09.2011, when the deed of sale in favour of B.S.I.D.C. was registered conveying the properties on payment of consideration of Rs. one crore ten lakh, no other person or authority other than the Official Liquidator had power to deal with the property in any manner prior to the date of registration i.e. 06.09.2011 and the B.S.I.D.C., having obtained perfect right, title and possession of the property was entitled to deal with the property by virtue of the Registered Deed dated 06.09.2011 and accordingly, lawfully executed registered deed of conveyance in favour of the petitioner-M.S.P.L. on 05.03.2012 and therefore, the petitioner having the absolute title over the property in question, hence, there is no question of execution of the lease deed, dated 24.09.2007 and therefore, the said Lease Deed, is forged one, but creating a mortgage of the Lease Deed, the Respondent-Bank has sanctioned the loan in favour of the Respondent No. 7, therefore, there is a serious fraud committed on the part of the loanee with the connivance of the Bank officials and, as such, the proceeding initiated under the SARFAESI Act, 2002 is not sustainable, since based upon the fraud. Further ground has been agitated that the petitioner has not been heard before resorting to either the provision of Section 13 (4) of Section 14 of the SARFAESI Act, 2002, therefore, the entire exercise of the authorities in issuing the order under Section 14 (2) of the SARFAESI Act, 2002 is improper.
(3.) Mr. Rajesh Kumar, learned counsel appearing for the Respondent- Bank has submitted that the petitioner has come out with the disputed question of facts, raising an issue of commission of fraud and, as such, the same may not be looked into under the writ jurisdiction. Further submission has been made that the order passed under Section 14 (2) of the SARFAESI Act, 2002, has been assailed on the ground of commission of fraud, but, so far as the power, which is to be exercised by the Collector under Section 14 (2) of the SARFAESI Act, 2002, the District Magistrate is to act upon the request being made by the Secured Creditor to take possession of such assets and documents relating thereto and forward such assets and documents to the Secured Creditor, therefore, the District Magistrate on requisition made by the Secured Creditor has exercised the aforesaid power and while doing so, no infirmity has been committed, therefore, the same may not be interfered with.;