Interim Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 97 SW 2024 Anthony Vs Indusind Bank and ors.
CNR-MHMM18-008557-2024
ORDER BELOW EXH.1
1. Perused record. Heard Ld. Advocate for the applicant.
2. This is an application under Section 156(3) of Code of Criminal
Procedure, seeking direction to register the offence against the
respondents and carry out investigation in the alleged acts.
3. The application is supported by affidavit. Compliance of Section
154(2) done. Certain offences are cognizable in nature. Thus, the basic
requirements are satisfied.
4. The summary of the allegations is that, the applicant obtained loan
of Rs.3,12,96,700/- from the Respondent No.1, Bank. For security of the
said loan amount he mortgaged his four flats i.e. Flat Nos.101, 101-B,
201 and 201-B and ground floor premises of the building Allied Junction,
St. Andrews and St. John Road, 101, Pali Road, Bandra West, Mumbai.
However, due to demonetization and other factors applicant suffered
losses in his business and failed to pay regular installments.
Therefore, in the month of September 2016, Respondent No.1,
Bank, declared the loan account of the applicant as Non Performing Asset
(N.P.A.). In the year 2017, the loan account was transferred to
Respondent No.2, company and in succeeding year 2018, it took
possession of the flats of the applicant. Then in the year 2022, the loan
was transferred to Respondent No.3, company and possession of the
property was handed over to it.
Respondent No.3, invited bids for the auction of the property, sold
it out to Respondent No.4, and executed sale certificate in his favour on
15.12.2023. While doing so said respondent had not followed the due
process of law. He had not intimated about the said auction to applicant.
The property was tremendously under valued. After taking possession on
01.01.2024, respondent and other persons removed and broken all the
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C. C. No. 97 SW 2024 Anthony Vs Indusind Bank and ors.
CNR-MHMM18-008557-2024
belongings of the applicant, including documents, furniture, goods, etc.
and put those articles in garbage. The applicant served notice on the
Respondent No.4 and other persons as they committed several offences.
Applicant initially also approached police, but no purpose served,
therefore, he filed this application for above directions.
5. If we go through the allegations and the documents filed on record,
it prima facie appears that the Respondent No.4, against whom main
allegations are made, is seem to have come in possession of the property
through several transactions, initially commenced through a main
creditor, i.e. Respondent No.1, Bank. The other respondents also came in
possession of property as the applicant failed to repay the loan amount
and committed default. Therefore, they obtained possession of the
disputed property and later on transferred to several other persons. All
these facts pleaded, prima facie constitutes no offence as they are mainly
constituting facts conferring civil cause of action.
6. It is also necessary to mention that possession transferred through
several persons after obtaining it from the applicant and it seems that
everything happened in pursuance of the procedure followed under
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. Therefore, there is doubt over the legality of
the allegations.
7. The respondents are banks and financial institutions, seem to have
acted under legal parameters. The prayers sought and granted, is having
serious consequences. There must required strong set of facts and
corroborative material to constitute prima facie case which will make out
cognizable offences. As stated above no such case made out. Further,
majority of the offences and their ingredients reflect that evidence can be
produced in the court itself by applicant himself. If any need is felt
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C. C. No. 97 SW 2024 Anthony Vs Indusind Bank and ors.
CNR-MHMM18-008557-2024
regarding additional evidence, the investigation can be ordered under
Section 202 of Code of Criminal Procedure. As such recording of
verification will serve the purpose. Therefore, order -
ORDER
Prayer for registration of offence and directing investigation as per
Section 156(3) of Code of Criminal Procedure is rejected. Matter is kept
for recording of verification of complainant.
MUMBAI (KOMALSING RAJPUT)
DATE – 10.12.2024 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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