MD. KHAIRUL ALAM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS is an application for quashing of the proceeding being Kaliganj Police Station Case No. 72 of 2012 dated 14 th February,2012 under Sections 448/427/379/506/34 of the Indian Penal Code. Tehemina Bibi @ Mondal @ Bewa/petitioner No . 2 is the owner of a property appertaining to Dag No. 1249,1250 and 1343 under Mouza Gobindapur measuring 35 decimals. That property was developed with the financial assistance of State Bank of India, Krishnagar branch to start a business for restaurant �cum �bar. Dispute arose between the financier i.e. bank and the owner of the property and others i.e. petitioners. Bank issued notice upon petitioner Nos. 1 and 2 initiating SA No. 533 of 2011 before the Debts Recovery Tribunal(II), Calcutta under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 ( in short SARFAESI Act). Md. Khairul Alam /petitioner No. 1 who was carrying on business in the premises in question filed a Title Suit being No. 115 of 2011 before the learned Civil Judge (Junior Division), 1 st Court, Krishnagar, Nadia and the said Court passed an ad-interim order of injunction against Shri Samiran Pal, Chief Manager, State Bank of India, Krishnagar branch/O.P. No. 2. Opposite party No. 2 by suppressing Civil Court 's order of injunction obtained an order from the Court of learned Chief Judicial Magistrate, Krishnagar, Nadia for taking over possession of the suit property but in vain. But the bank posted security guard outside the premises in question. On 11 th February, 2012 opposite party No. 2 made a complaint before the Officer-in-Charge , Kaliaganj police station alleging forcible entry into the premises in question by some antisocial element by breaking padlock of the said premises but no action was taken by the police station. Again on 13 th February, 2012 opposite party No. 2 requested the Officer-in-charge of the said police station to start a case by taking the said letter as first information report. Accordingly Kaliaganj Police Station Case No. 72 of 2012 was started. Being aggrieved by and dissatisfied with the said case this revisional application has been filed .

(2.) MR . Mrinal Kanti Mukherjee, learned counsel appearing for the petitioners has contended that opposite party No. 2 by suppressing the material fact of civil proceeding caused initiation of the criminal case to fulfil his personal grudge. The continuation of the said proceeding is a gross abuse of the process of the Court. The proceeding pending before the learned Chief Judicial Magistrate , Nadia may be quashed. Mr. Debasish Roy, learned Public Prosecutor appearing for the State refuted the contentions of Mr. Mukherjee and contended that Civil Court has no jurisdiction in a matter where SARFAESI Act already came into play. He has referred to the provisions laid down in Sections 34 and 35 of the said Act. He has invited the attention of the Court to the order dated 28-9-2011 passed by the learned Chief Judicial Magistrate , Krishnagar, Nadia in Case No. MR 728(IV) of 2011 and submitted that on an application under Section 14 of the SARFAESI Act filed on behalf of the Chief Manager of the State Bank of India, Krishnagar branch/O.P. No. 2 the learned Court directed Officer-in-Charge of Kaliaganj police station to take over possession of the property involved in the matter and delivered the same to the authorised representative of the bank. The Officer-in-Charge of Krishnagar police station accordingly took over possession of the property in question and handed over the same to the authorised representative of the bank. The bank on having such possession placed the property under lock and key and security guards were posted. The petitioner and others broke open the padlock and committed an offence that is why at the instance of the opposite party No. 2, Kaliaganj Police Station Case No. 72 of 2011 dated 14 th February,2012 has been started. The revisional application may be rejected. It is an admitted fact that a proceeding being SA No. 538 of 2011 under SARFAESI Act is pending before the Debts Recovery Tribunal (II), Calcutta and two of the petitioners being respondent to that proceeding were served with notice. The petitioners took out a case that Title Suit being No. 115 of 2011 was filed by petitioner No. 1 before the learned Civil Judge (Junior Division ), 1 st Court, Krishnagar, Nadia and got an ad-interim order of injunction against opposite party No. 2 restraining him from dispossessing the said petitioner i.e. the plaintiff of that suit. Section 34 of the SARFAESI Act is very much clear that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal empowered to deal with. Section 35 of the said act provides the provision to override other laws. On perusal of Section 14 of the SARFAESI Act it appears that there is provisions to enable the secured creditor to take the assistance of the Chief Metropolitan Magistrate or District Magistrate in taking possession of the secured asset. On an application under Section 14 of the SARFAESI Act learned Chief Judicial Magistrate, Nadia in MR Case No. 728(IV) 2011 directed Officer-in-Charge of Kaliaganj Police Station to take possession of the property in question and delivered the same to the authorised representative of the bank.