M/S. NIKETAN TRADERS Vs. STATE & ANR.

JUDGEMENT

(1.) The petitioner by means of this petition challenges the order dated 9.11.2005 passed by the learned ASJ in Crl. Rev. No. 66/2005 whereby order dated 14.10.2005 of the MM has been reversed. To state in brief, in the FIR No. 505/2005 lodged by the petitioner herein the I.O. during investigation had seized 3,10,000 shares of Blue Coast Hotels and Resorts Ltd. (hereafter called the 'Blue Coast'). The petitioner/complainant company claims that these shares belong to it and moved an application for giving of these shares to the petitioner on superdari, which was allowed by the learned MM vide order dated 14.10.2005. This order was passed without notice and without hearing the respondent herein. The respondent, on coming to know of this order, challenged the same by filing Cri. Rev. No. 66/2005, which has been allowed by the learned ASJ vide impugned order dated 6.11.2005 reversing the order of the MM and remanding the case back to him with direction to pass the order after hearing the respondent, as the MM had violated the principles of natural justice by passing the order without giving any opportunity to the respondent.

(2.) To appreciate the controversy, let me state the facts in some detail. In Sept., 2002, M/s. Morepen Laboratories Ltd. (hereinafter called the 'Debtor (Morepen)' had taken Inter-Corporate Deposit (in short the 'ICU) of Rs. 5 crores from M/s. Morgan Securities and Credits Ltd. (hereinafter called the 'Morgan'). At that time, no security was taken. However, in Feb., 2003 the petitioner herein pledged 3,10,000 shares of M/s. Blue Coast, which the petitioner was holding. Thus, the petitioner gave this security to Morgan on behalf of the debtor (Morepen) against the said ICD of Rs. 5 crores. The debtor defaulted in making the repayment of loan. Memorandum of Settlement dated 5.2.2007 was entered into between the debtor (Morepen) and Morgan. There was a breach of this Memorandum of Settlement as well. An arbitrator was appointed before whom the debtor (Morepen) agreed to suffer a consent award dated 28.6.2003. The case of Morgan is that even after this consent award, payment was not made and the execution was filed. It is also their case that when payment was made, they were entitled to dispose of 3,10,000 equity shares of M/s. Blue Coast, which were given by way of security by the petitioner. Accordingly, those cases (shares) were disposed of. At this stage, the petitioner herein filed complaint alleging that the petitioner was induced by Morgan to pledge these shares but at the same time, the petitioner was assured that the shares were being taken as security and would not be sold without prior permission. In this complaint, it was also stated that the shares, which were pledged, were trading at a very high premium at that time but Morgan allegedly disposed of these shares at a very lesser value and that too to their own company/sister concern, viz., Northern Projects Ltd./respondent No.2 without even giving prior information to the petitioner or a reasonable notice, which is otherwise mandatory under Sec. 176 of the Contract Act. It was also alleged that during April, 2004 to April, 2005 Rs. 5 crores were repaid by the debtor (Morepen) to Morgan and there was nominal dispute regarding payment of interest, which was pending in the trial court. In this complaint filed by the petitioner, the learned MM ordered registration of FIR and investigation of the complaint. FIR No.505/2005 was registered at PS Defence Colony and on 14.10.2005 the Police froze the said 3,10,000 shares of Blue Coast lying in the D-MAT Account of the respondent No.2 Northern Projects Ltd. After that, application for superdari was filed by the petitioner in which order dated 14.10.2005 was passed by the learned MM allowing the said application in the following manner :

(3.) First submission of the learned counsel for the petitioner was that revision petition was not even maintainable inasmuch as the order passed by the learned MM was one under Sec. 457 of the Crimial P.C. which was interlocutory in nature and, therefore, the revision petition filed by the respondent No. 2 was not maintainable and should have been dismissed. Order passed by the learned ASJ, therefore, according to the submission of the petitioner, is without jurisdiction and warrants to be set aside on this short ground.