LOVE GARG Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The primary prayer in the present writ petition is for the issuance of a writ in the nature of certiorari for quashing of order dtd. 16/5/2019 (Annexure P-3) passed by the Estate Officer, Punjab Small Industries and Export Corporation Limited-respondent No. 3, vide which respondent No. 3 had requested the Branch Manager, Bank of Baroda-respondent No. 4 as well as the petitioners to submit 'No Objection Certificate' from the Court of Judicial Magistrate, 1st Class, Chandigarh regarding the attachment of plot No. C-149, Phase-V, Focal Point, Ludhiana in the matter of M/s Bhushan Power and Steel Limited v. M/s Vidya Cycle Industries.

(2.) Further prayer in the writ petition has been made for issuance of directions to the Punjab Small Industries and Export Corporation Limited (respondent No.2) and the Estate Officer, Punjab Small Industries and Export Corporation Limited (respondent No. 3) to transfer the secured asset/plot No. C-149, Phase-V, Focal Point, Ludhiana, in favour of the petitioners/auction purchasers in pursuance of the auction having taken place under the The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as "the SARFAESI Act").

(3.) The brief facts of the present case are that on 22/1/2013, M/s Durga Impex, availed Cash Credit Facility of Rs.3,25,00,000.00 from respondent No. 4-Bank and for the said facility, M/s Vidya Cycle Industries was the Guarantor and had mortgaged the plot No. C-149, Phase-V, Focal Point, Ludhiana measuring 2083.33 square yards with the said bank. Further, vide letter dtd. 22/1/2013, respondent No. 4-Bank had requested the allotting agency i.e. respondent No.2 to mark lien on the Secured Assets. On 1/1/2015, loan account of M/s Durga Impex was declared as Non-Performing Asset and on 5/2/2019, respondent No. 4-Bank had issued a sale notice under Rule 8 Sub-Rule 6 read with Rule 9(1) of the Security Interest (Enforcement) Rules, 2002 (hereinafter to be referred as "the Rules of 2002") in the two newspapers i.e. Indian Express and Charhdikalan and fixed the date of auction as 28/2/2019 of the Secured Asset. On 28/2/2019, the auction was conducted by respondent No. 4-Bank in which the petitioners had made a bid of Rs.1,99,25,000.00 which was ultimately accepted. On 15/3/2019 a Sale Certificate (Annexure P-l at page 20 of paper book), was issued under Rule 9 Sub-Rule 6 of the Rules of 2002 in favour of the petitioners, conveying the title of the Secured Asset. Importantly, in the said Sale Certificate, it was specifically mentioned that the property/Secured Asset was being made free from all encumbrances. On 27/3/2019 (Annexure P-2 (Colly) at Page 23 of the paper book), respondent No. 4-Bank had requested the Estate Officer, Punjab State Industrial and Export Corporation, to transfer the Secured Asset in favour of the petitioners. A brief summary of the facts giving rise to the sale, was also mentioned in the said letter. On 28/3/2019 (Annexure P-2 at page 21 of the paper book), an application was moved by the petitioners to the Estate Officer, Punjab Small Industries and Export Corporation Limited, Chandigarh for transferring the Secured Asset/plot in question in the name of the petitioners. The requisite affidavits as well as copies of Aadhaar Cards of the sellers and purchasers were annexed with the application. The transfer fee of Rs.20,835.00 by way of draft No. 232596 dtd. 28/3/2019 (page 26 of the paper book) was also submitted. On 16/5/2019 (Annexure P-3), the petitioners were surprised to receive a letter from the Estate Officer, Punjab Small Industries and Export Corporation Limited-respondent No. 3, vide which respondent No. 4-Bank as well as the petitioners were requested to submit 'No Objection Certificate' from the Court of Judicial Magistrate 1st Class, Chandigarh, with respect to some alleged attachment of the plot in question/Secured Asset. After receiving the said letter, the petitioners learnt that M/s Bhushan Power and Steel Limited had written a letter dtd. 3/10/2013 (Annexure P-4, page 39 of the paper book) to the Punjab State Industries Development Corporation, Chandigarh, pointing out the fact that Dixit Gulati and Reeta Gulati, partners of M/s Vidya Cycle Industries, had been declared Proclaimed Offender under Sec. 82 of Cr.P.C and that Judicial Magistrate 1st Class, Chandigarh vide its order dtd. 13/6/2013, while noting that Dixit Gulati and Reeta Gulati had not appeared in the proceedings under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act of 1881"), observed that a proclamation was required to be issued for their appearance and an order was passed for attachment of the property in question. Relevant portion of the said order is reproduced hereinbelow:-