MAGADH SPUN PIPES LIMITED Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This writ petition is under Article 226 of the Constitution of India in which the following prayers have been made:-

(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.

(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.