AI Structured Summary
Not yet generated for this judgment
Judgment
The facts leading to the filing of these two applications by the applicants, who were respondents in the disposed of Appeal No. 24/2019 and who have already been held guilty of wilful disobedience and non-compliance of the direction given to them by this Tribunal on 12.02.2019 while allowing the Bank's Appeal filed against one order of the Debts Recovery Tribunal-II, Delhi, may briefly be noticed.
The respondent no.1 in the disposed of appeal, M/s Gee Cee Corporation Pvt. Ltd.(hereinafter to be referred as the borrower of SBI)., had been extended financial aid by State Bank of India(SBI) to the tune of crores repayment whereof was got secured by way mortgage of some immovable properties in Delhi as well as outside Delhi. Besides that re-payment of loan was also secured by way of corporate guarantee given by M/s Gee Cee Metals Pvt. Ltd.(hereinafter to be referred as 'the corporate guarantor of SBI' ). Both the borrower Company and the corporate guarantor appear to be family business concerns of one 'Mittal family' with one Mr. M.M.Mittal as the Head of Family. Other family members are his wife and two sons, all of whom were respondents in the disposed of appeal and all four of them have been held guilty already of disobedience of the above-noted direction given to them on 12.02.2019. These individuals had also given their personal guarantees for the re-payment of loan to SBI by its borrower. At the time of taking corporate guarantee of this corporate guarantor State Bank of India was not aware of any immovable property owned by it. This was being claimed to be so by this Bank.
The borrower of SBI defaulted in repayment of the loan money which defaulted to the filing of an Original Application(O.A.) by Bank under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993('RDDBFI Act' in short) for recovery of over fifty crores of rupees. That O.A. is still pending trial before DRT-II, Delhi.
The corporate guarantor of SBI had also taken loan of crores of rupees from Kotak Mahindra Bank and re-payment of that loan was secured by way of equitable mortgage of its huge residential house in Maharani Bagh, New Delhi, about which property, SBI claims, it was not aware of. The said borrower of Kotak Mahindra Bank had also defaulted in re-payment of loan taken from this Bank and since that loan was secured by way of equitable mortgage of a property in Maharani Bagh Kotak Mahindra Bank initiated proceedings as a secured creditor to recover its money under SARFAESI Act by auctioning the mortgaged house in Maharani Bagh. To protect that property from being taken over and auctioned M/s Gee Cee Metals Pvt. Ltd. started legal battle with Kotak Mahindra Bank by filing an S.A. against Kotak Mahindra Bank. During pendency of that S.A. some people came forward to buy the Maharani Bagh property for Rs. 35 crores odd which amount would have covered and cleared the liability of Kotak Mahindra Bank. Which was only to the tune of Rs. 13.50 crores odd. However, before the deal of sale by private treaty in respect of the Maharani Bagh property could be finalized SBI officials came to know that SBI Bank's corporate guarantor was owning a huge house in Maharani Bagh which it was intending to sell by way of a private treaty. SBI then sought an order from DRT in its O.A. for attachment of the sale proceeds of Maharani Bagh house which its corporate guarantor would be getting after clearing the dues of Kotak Mahindra Bank. The DRT kept pending the applications moved by SBI for that relief. In the meanwhile the prospective buyers realised that since SBI will not permit sale in their favour to materialize there was an understanding arrived at between those buyers(who have been described in the proceedings before the DRT as 'strategic buyers'), State Bank of India, Kotak Mahindra Bank and the owner of Maharani Bagh house M/s Gee Cee Metals Pvt. Ltd., corporate guarantor of SBI in respect of the loan granted to M/s Gee Cee Corporation Pvt. Ltd., both of which Companies, as noticed already, belonged to Mittal Family whose head is respondent Shri M.M.Mittal. The understanding which was arrived at and which understanding became a part of order of DRT, was that the Strategic Buyers will clear the dues of Kotak Mahindra Bank and pay Rs. 19 crores to SBI and then only the Maharani Bagh house could be sold to strategic buyers by the mortgagor/owner i.e. the corporate guarantor of SBI. This all happened in first week of January,2019. However, within a couple of days there was some fresh understanding arrived at between the corporate guarantor of SBI and the so called 'strategic buyers' t the effect that now the strategic buyers will not pay Rs. 19 crores to SBI as had been agreed upon earlier and which agreement had got the approval of the DRT also and instead the entire sale consideration excluding the share of Kotak Mahindra Bank will be paid to the mortgagor/owner of Maharani Bagh property. Both these parties succeeded in getting this fresh understanding which in fact was a strategy to hoodwink SBI, approved from DRT also which gave a green signal to the corporate guarantor of SBI to go ahead with the sale transaction in favour of the strategic buyers(one Bajaj Group running educational institutes) and the buyers were also permitted to pay the entire sale consideration to the sellers of course after clearing the dues of Kotak Mahindra Bank. All that happened on 10.01.2019 before the DRT. Accordingly, the buyers paid off the dues of Kotak Mahindra Bank on 11.01.2019 and same day sale deeds also came to be executed by the corporate guarantor of SBI in favour of so called strategic buyers(Bajajs), who have already been held by this Tribunal to be conspirators/colluders in the hoodwinking of the system and SBI in particular.
SBI immediately filed an appeal before this Tribunal challenging the order dated 10.01.2019 passed by DRT permitting sale of the Maharani Bagh house of which SBI was seeking attachment in the manner noted above. Notice of the appeal was given to the respondents herein and some ex parte directions were also given stopping registration of any sale documents, delivery of possession and title deeds in respect of Maharani Bagh house by Kotak Mahindra Bank to the buyers etc. The respondents/applicants appeared and informed that sale deeds had already been executed in favour of the buyers of 11.01.2019. Possession and title documents had however not been delivered to the buyers and in view of the stay order of this Tribunal the buyers have not got the title documents as well as physical possession of the Maharani Bagh house and in fact by subsequent orders the said property now has been taken over by this Tribunal and so it has become custodia legis.
Finally the appeal of SBI(being appeal no. 24/2019) was disposed of and allowed by this tribunal vide order dated 12.02.2019. The impugned order dated 10.01.2019 of DRT pursuant to which sale deeds in respect of Maharani Bagh house came to be executed on 11.01.2019 in favour of strategic buyers(Bajajs) was set aside and it was also observed that buyers had in conspiracy with respondents, now applicants, succeeded in hoodwinking the system. Kotak Mahindra Bank was directed to submit the keys of the house in question and title documents in the Registry of this Tribunal which direction it has already complied with and that is how the property in question has now become custodia legis. The respondents were directed to pay Rs. 21 crores either to SBI or deposit that much money in the Registry of this Tribunal within a week. SBI was given the liberty to have recourse to its remedies in the event of this direction not being complied with.
The applicants/respondents did not comply with the direction of payment of Rs. 21 cores within a week. The strategic buyers(Bajajs) challenged the order dated 12.02.2019 by way of a writ petition in Hon'ble Delhi High Court but their writ petition was dismissed by the High Court vide order dated 28.02.2019. In its judgment High Court also found the sale between tw writ petitioners(Bajas) and the present applicants/respondents herein to be a collusive transaction.
After dismissal of the writ petition of Bajajs SBI filed an application before this Tribunal with a prayer for initiating contempt action against Mittals, applicants herein, for disobeyed the direction given to them on 12. 02.2019 for making payment of Rs. 21 crores to SBI or by not depositing the amount with DRAT. This Tribunal issued notice of that application of SBI to the guilty respondents to show cause as to whe the order dated 12.02.2019 be not got implemented by attachment of their properties as well as by sending them to prison. After considering their response and giving them full opportunity of hearing this Tribunal vide order dated 26.06.2019 sentenced all the four guilty respondents to suffer civil imprisonment for two months and their properties as informed by the SBI during the curse of these proceedings were attached.
The details of properties provided by the Bank for attachment, and which already stand attached by this Tribunal, are given below:-
Immovable Properties
SI No.
Details of Properties
Owners
1.
Commercial Premises No. DGO 238 DLF Galleria Mall Plot No. 01 B, DDA District Centre Mayur Vihar-1, Delhi measuring 400 sq. ft.
Respondent No. 2 (Sh. Madan Mohan Mittal)
2.
Corporate Flat No. 66 and 67 admeasuring 800 Sq. ft. in Ansal Plaza, Vaishali, Ghaziabad.
Respondent No. 3 (Smt. Rekha Mittal)
3.
Two plots bearing No. 72 & 73 in NSEZ, Sec-81, Noida measuring 1800 sq. meter
Gee Cee Exim Pvt. Ltd., Wherein The Respondent No. 6 Holds 99% Stake In the Company
4.
Plot No. 67, in HPSIDC, Baddi, Himachal Pradesh.
LAANGZA Waters Pvt. Ltd.(Formerly G C Beverages Pvt. Ltd.), wherein the Respondent no. 1 to 6 hold 41.159% equity in the firm
Movable Properties
Sl. No.
Details of properties
Owners
1.
Imported Cast Copper rods in Coils lying in the factory of the respondent no. 1 stated to be Rs. 6.50 crores.
Respondent No. 1
During the pendency of these miscellaneous proceedings initiated at the instance of SBI for the implementation of the order dated 12. 02.2019 the guilty respondents also decided to challenge the orders of this Tribunal passed on 12.02.2019 whereby they were held guilty of wilful disobedience and on 26.06.2019 when they were sentenced to civil imprisonment for two months and their movable and immovable properties were also ordered to be attached. They accordingly filed two writ petitions, being CWP No.9390/2019 and CWP No.9418/2019. However, both the writ petitions were permitted to be withdrawn by the Hon'ble Delhi High Court vide order dated 29.08.2019. However, while permitting withdrawal of the writ petitions the High Court gave the writ petitioners liberty to approach this Tribunal for appropriate relief in accordance with law. Pursuant to that liberty granted to the writ petitioners to approach this Tribunal for appropriate relief I.A. No. 944/2019 was filed before this Tribunal and the prayer made therein was to recall the order directing their imprisonment. It may be stated here that before filing of this applications the respondents had already moved I.A.No.687/2019 for similar relief.
Arguing for the guilty respondents, applicants of the two IAs which are now being decided, Mr. Sudhir Makkar, learned senior advocate had confined his submissions only regarding punishment of two months civil imprisonment awarded to these respondents. Mr. Makkar submitted that he was not at this stage asking for review all the orders passed in the past including the order holding these respondents guilty of non compliance of the direction given to them for payment of Rs. 21 crores to SBI or to deposit the same with this Tribunal vide order dated 12.02.2019 and he was also not praying for recall of the orders for the attachment of their properties. All that the applicants are praying before this Tribunal is to revisit the order of sentence of imprisonment for two months awarded to them. Mr. Makkar submitted that the situation in which the respondents now find themselves in and they are almost at the door steps of prison has arisen because of the failure on their part to clear their contractual liability towards SBI and which liability is also yet to be crystallized inasmuch as the SBI's O.A. for recovery of its dues has not been decided so far. It was submitted that this Tribunal itself has already observed that these proceedings are in the nature of execution of an order of injunction which can be got implemented even by arrest of respondents besides attachment of their assets which already have been attached and arrest can be only if the Bank shows that they have assets other than those which stand attached but still not they are not paying. It was further contended that while the final liability of these respondents is still pending adjudication this Tribunal has called upon them to cough up a staggering amount of Rs. 21 crores which direction is virtually impossible for them to comply with at least for the present considering the fact that this Tribunal has while ordering their detention in civil prison simultaneously also attached all their immovable properties as well as movable assets and all their bank accounts have also been attached/frozen. Hon'ble Supreme Court had way back in early eighties passed a judgment in "Jolly George Verghese & Anr vs The Bank Of Cochin", 1980 AIR 470 wherein it was held that for failure to clear the liability of contractual debts the defaulter cannot be sent to jail unless it is shown that despite having means to pay clear the liability the same was not being cleared. This judgment is till date being relied upon in judgments rendered by various high courts, including Delhi High Court in one of its decisions in W.P.(C) 199/2004, "Suresh Jindal & Ors. vs Delhi Financial Corporation" rendered on 8 January, 2010, whenever question has arisen as to whether somebody who defaults in clearing contractual debts should be sent to civil prison or not. The relevant observations from this judgment of Hon'be Delhi High Court, made after referring to the judgment of the Hon'ble Supreme Court in Jolly George Verghese case(supra) are re-produced below:-
"18. The law emerging from the above decisions is that the extreme coercive process of arrest and detention of a defaulter will be resorted to not on account of mere non-payment or inability to pay but only where "a person is liable to pay and dishonestly makes default in payment". The Supreme Court has in Ram Narayan Agarwal emphasized that it is only the dishonest conduct of a borrower that will attract the coercive step of arrest and detention."
Five years later same Sngle Judge Bench which expressed the aforesaid views had again reiterated same views in "The State Trading Corporation ... vs Global Steel Holdings Limited", (EX.P. 337/2014 with EA Nos. 697-98 of 2014). These are the observations this judgment:-
"Arrest and detention of the JDs
The Court now proceeds to deal with the other contention of Mr. Anand that this Court should straightway proceed to issue warrants of arrest against the Chief Executives or Principal Officers of JDs 1 and 2 and JD 3 since they are expected to appear in the Court of the learned MM New Delhi in the proceedings under Section 138 of the NI Act on 12th March 2015.
At the outset, the Court would like to observe that the decisions in Krishna Prasad v. Bidya Nanda (supra) and Arratoon and Co. v. Mimraj Puranmull (supra) were rendered in the pre-independence pre- constitutional era. Even the decision of the Madras High Court in A.K. Subramania Chettiar (supra) which appears to suggest that it would be open to the DH to seek enforcement of Award either against the property or the person or against both simultaneously was rendered without reference to the provisions of the Constitution.
A significant shift in the legal position was brought about by the decision of the Supreme Court in Jolly George Varghese (supra). The executing Court can no longer straightway order the arrest and detention of a JD in a civil prison under Section 51 (c) read with Order XXI Rules 37 to 40 CPC in terms of the law explained in Jolly George Varghese (supra). In the said decision, the Supreme Court referred to the Fifty- fourth Report of the Law Commission which, inter alia, stated:
"Imprisonment is not to be ordered merely because like Shylock, the creditor says:
"I crave the law, the penalty and forfeit of my bond‟ The law does recognize the principle that "Mercy is reasonable in the time of affliction, as clouds of rain in the time of drought".
Justice Krishna Iyer writing for the Court in Jolly George Varghese (supra) drew on both Article 21 of the Constitution and Article 11 of the International Covenant on Civil and Political Rights ('Covenant') to remove the inherent "unreasonableness and "unfairness" in the procedure contemplated by Section 51 (c) CPC. In para 9 it was observed as under:
"We concur with the Law Commission in its construction of Section 51 CPC. It follows that quondam affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Article 11 of the Covenant, because then no detention is permissible under Section 51 CPC."
In para 11 of the same decision it was observed as under:
"11. The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here consideration of the debtor's other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution."
That the Court in Jolly George Varghese (supra) stopped short of pronouncing on the constitutional validity of the proviso to Section 51 read with Order XXI Rule 37 CPC is evident from the following observations in para 12:
"12. The question may squarely arise some day as to whether the proviso to Section 51 read with Order 21 Rule 37 is in excess of the Constitutional mandate in Article 21 and bad in part. In the present case since we are remitting the matter for reconsideration, the stage has not yet arisen for us to go into the vires, that is why we are desisting from that essay."
The coercive process of arrest and detention of a JD ought not to be resorted to by an executing Court in the very first instance even before ascertaining whether the decree can be satisfied by the JD. Such an order would be inherently unfair, unreasonable and contrary to the law explained in Jolly George Varghese (supra). In any event, such an order can, if at all, be passed only by a Court that otherwise has jurisdiction to entertain the execution petition in respect of any of the properties of the JDs located within its jurisdiction or against the JDs if any of them is ordinarily resident there. As far as this Court is concerned, neither of the above requirements is satisfied. The mere fact that the JDs are likely to appear before the Court of the MM in New Delhi at a future date, although none of them is ordinarily resident within its jurisdiction, would not confer jurisdiction on this Court to straightaway order their arrest and detention in these proceedings."
Mr. Makkar submitted that the properties which the respondents own have neither been permitted by this Tribunal to be sold by the respondents nor even by SBI and thus it cannot be said that the respondents are not intentionally complying with the direction of the Tribunal despite possessing assets from the sale of which direction for payment could possibly be complied with. In the written submissions also these respondents had volunteered that attached properties could be sold. The submission was that the attached properties should be sold and only thereafter it can be seen if the respondents still have to be sent to jail. In the meanwhile they will continue their efforts to muster funds still remaining to be paid after sale of attached properties. Mr. Makkar also argued that from the other side a picture was being sought to be created in the mind of this Tribunal is that after sale of Maharani Bagh property the sale entire proceeds received by SBI's corporate debtor M/s Gee Cee Metals Pvt. Ltd. are still with it and not being utilized towards clearance of SBI's dues. Learned senior counsel submitted that the corporate guarantor of SBI was in debts from top to bottom and had to pay crores of rupees to different creditors and Maharani Bagh property was a source from the sale of which only those debts could be cleared or at least reduced to a great extent. Maharani Bagh property was sold on 11.01.2019 and within a couple of days different creditors of corporate guarantor of SBI were paid of their dues details whereof had already been provided to this Tribunal. That showed that the respondents had not sold any other properties after this Tribunal held them guilty of non compliance of the direction given on 12.02.2019. The claim of the SBI that the respondents had intentionally shown sham liabilities and prepared entries of payments amongst members of Mittal family or their friends etc. was thus not justified and in any case his Tribunal has not returned any finding to that effect and simply accepting the submissions made by the learned senior counsel for SBI had directed detention of respondents. Regarding the Maharani Bagh property Mr. Makkar had submitted that this Tribunal has already held that the sale of that property between SBI's corporate guarantor and Bajajs(strategic buyers) was a collusive and sham transaction and which finding even the High Court has already affirmed while dismissing the earlier writ petition of Bajajs, and no title therein stood transferred in favour of Bajajs and consequently that property was also available to be sold to recover SBI's dues and in fact this Tribunal has also already ordered fresh sale of that property with an observation that value of that property would be around sixty crores. It was further contended that for the time being that property having been held to be available for sale, though Hon'ble High Court in the fresh writ petition filed by Bajajs has stayed auction of that property since Bajajs were raising the grievance that this Tribunal had ordered fresh auction sale without giving hearing them but the fact remains that that huge property has been found by this Tribunal to be available for sale and which finding of this Tribunal is now not under challenge at least by the corporate guarantor of SBI/owner of that property, and if that decision also is affirmed by the High Court and fresh sale of that property, which the SBI has valued at Rs. 36 crores odd ignoring the observation of this Tribunal that the real value of Maharani Bagh property would be around sixty crores, is permitted and is finally sold also and in the meanwhile the respondents are sent to prison for two months their life and liberty which right is constitutionally guaranteed would be seriously violated and irreparable damage will be caused to their reputation also. As far as the apprehension of SBI leading to issuance of NBWs against the respondents by this Tribunal is concerned Mr. Makkar submitted that there was no question of their absconding as they have been appearing before this Tribunal in compliance of the directions of this Tribunal. (Here it may be noticed that the respondents have already moved an application for surrendering themselves voluntarily to be sent to prison). Mr. Makkar submitted that if despite properties of respondents, which stand already attached also, being available for being sold this Tribunal decides to send them to jail they will respect that decision and will not run away despite their being victims of circumstances and bank officials being vindictive towards them leading to their business activities completely coming to a grinding halt and their suffering huge losses and resulting in huge liabilities also. The liabilities to some extent could be reduced from the sale proceeds of Maharani Bagh property. Thus, the submission of the applicants/respondents made through their learned senior counsel Mr. Sudhir Makkar appears to this Tribunal to be that : SELL EVERYTHING THEY HAVE AND RECOVER THE MONEY DIRECTED BY THE TRIBUNAL TO BE PAID TO SBI BUT DO NOT SEND THEM TO JAIL.
Here it may also be noticed that besides directing attachment of already referred immovable properties of the respondents and their bank accounts this Tribunal has already directed sealing of the properties where these people are presently residing and preparation all the movables lying inside those premises. One property is in New Friends Colony and the same is reported to have already been sold and in respect of the other property in Greater Noida the Bank's authorised officer has filed his affidavit that the police of that area had not provided police aid for the implementation of the directions of this Tribunal.
Countering the submissions of Mr. Sudhir Makkar, learned senior advocate, Mr. Rajeeve Mehra, learned senior counsel appearing for SBI had submitted that the applicants/respondents have all along been playing tricks to see to it that SBI does not get anything from them and who have for one such trick already been indicted by this Tribunal as well as by Hon'ble High Court while holding the sale of Maharani Bagh by M/s Gee Cee Metals Pvt. Ltd. in favour Bajajs to be a collusive transaction. Mr. Mehra emphasized very strongly that the guilty respondents are now playing a 'sympathy card' in another attempt to avoid going to jail. It was submitted that these respondents have not only played fraud upon this Tribunal by gaining time to defer their being lodged in prison by issuing cheques of the value of Rs. five crores before this Tribunal itself and then getting the same dishonoured but they have also played a dishonest game before the High Court also where they filed a writ petition during the pendency of the present ongoing proceedings wherein this Tribunal is pressing into all possible steps to ensure that Rs. 21 crores is recovered from them including by ordering NBWs against each one of the four Mittal family members. That writ petition was filed to have the dead chapter of OTS resurrected through the writ route and in that writ petition the respondents had undertaken to deposit Rs. five crores in the Registry of High Court to show their bona fides but had also undertaken to make the deposit of Rs. five crores with this Tribunal and which amount they had already undertaken/assured before this Tribunal to deposit in the Registry of this Tribunal but despite that undertaking given to the High Court these respondents have brazenly not complied with that undertaking/direction given in the writ petition and thus there cannot be a more indication of their bad and dishonest intentions. Mr. Mehra further submitted that when earlier on 06.05.2019 this Tribunal had attached various bank accounts of the guilty respondents they played a mischievous game and in order to overreach that attachment order did not disclose that they were having other bank accounts and one immovable property in Amritsar also about which the Bank came to know subsequently and accordingly an application was filed being I.A.No. 825/2019 giving the details of other bank accounts of respondents and their front Companies whose names had earlier also been given. It was also contended that in any event even if all the assets being offered for being liquidated are sold Rs. 21 crores wil not get recovered even according to the values of those assets given by the respondents.
Therefore, Mr. Mehra, submitted that these respondents are not as simple and honest persons as they are projecting themselves to be and so this Tribunal should not get swayed away with fresh false assurances being given by the guilty respondents through their learned senior counsel Mr. Makkar who already succeeded in getting the inevitable deferred temporarily from this Tribunal under the impression that these respondents are honest litigants and will honour whatever assurances he was giving on their behalf. Even while getting an order of deferment of dispatch of the respondents to prison cheques for Rs. five crores ware through tendered to bank but the same were got dishonoured by the respondents. Mr. Mehra contended that since this matter is now between this Tribunal and the guilty contemnors he was simply making these submissions as an officer of the Court in order to assist this Tribunal so that this Tribunal should be tough towards the guilty respondents.
Considering all the facts and circumstances and in view of the judgment of the Hon'ble Supreme Court in Jolly George Verghese case(supra) and the two decisions of our own High Court, which is the jurisdictional High Court as far as this Tribunal is concerned, This Tribunal is inclined to keep the sentence of imprisonment of two months awarded to respondents 2 to 5 in abeyance till further orders. In the meantime, following directions are given:-
(a) The Authorised Officer of the SBI Mr. H.S.Gautam shall now stand further authorized to take over the physical possession of the immovable properties described in para no.9 above, except the property in Himachal Pradesh in respect of which one M/s LAANGZA Waters Pvt. Ltd. has already moved an application for lifting of attachment of its bank accounts and its property in Baddi, Himachal Pradesh and which application is pending consideration. Those properties the guilty respondents themselves have come forward to offer for sale. Mr. Gautam shall immediately seal all those properties and take necessary steps to sell the same by way of public auction as a Court appointed Receiver. Though the respondents themselves had also given values of those properties but the Receiver will get necessary valuation reports from Government approved valuer. Since the properties are being offered for sale by respondents it may not be necessary now to seek any police aid as even now if now any resistance is offered to the properties being sealed after preparation of necessary inventories of the movables lying there, if any, it can be inferred against the respondents that despite their possessing assets to comply with the direction of this Tribunal given to them on 12.02.2019 they are still evading compliance of that direction for the non compliance of which direction they already stand held guilty. In that situation, the above referred judgments will not come to their rescue. The respondents will themselves co-operate with the Authorised Officer of the SBI in taking over and sealing of the properties which they have offered to be sold, without any police aid. Any obstruction on their part and non co-operation in this regard will disentitle them even to the interim relief against their detention in prison which has been given to them only on their own assurances that their properties can be sold.
(b) The Authorised Officer/Receiver will also get the valuation of the imported copper being offered for sale by respondents, also made available for sale and value of which copper is stated by respondents themselves to be around six crores. Thererafter steps can be taken under the authority of this order for its auction. Necessary order as to whether the sale proceeds of the imported copper are to be utilized towards compliance of the direction dated 12.02.2019 given by this Tribunal or appropriated and credited in the loan account of M/s Gee Cee Coporation Pvt.Ltd., corporate borrower of SBI will be passed once the copper material is sold and something is recovered.
(c) Respondents shall within a week file affidavits showing that the properties in New Friends Colony and Greater Noida where they were living after sale of Maharani Bagh, and which properties have already been ordered to be sealed and one of which has been sealed also, were actually rented properties and, if so, what were the rents from which source they were paying rents of those properties. If the property in Greater Noida still remains to be sealed because of non cooperation by police authorities the Receiver Mr. Gautam will himself visit that property again and seal the same as now respondents themselves have come forward to offer all their properties sold. Though it had been submitted during one of the hearings that the property in Greater Noida is on rent but that fact cannot prevent this Tribunal from sealing that property and ordereing sale of at least movables lying there. If anybody comes forward for desealing of that property this Trbunal will examine that claim in accordance with law. It had also been requested by the counsel for the respondents that the properties in Greater Noida and New Friends Colony may not be sealed since respondents with their families and young children were living there. However, this submission cannot be accepted. In "Mashreq Bank Psc. vs Navin Khilnani" decided on 27 March, 2009 in EA No. 401 & Ex. P. No. 73/2000 Hon'ble Delhi High Court had held that if debtor does not pay off its creditors he should not live luxurious life and must shift to smaller house.
(d) Respondents will also give particulars of bank lockers if they have in some banks. They will also disclose jewellery items they own. It shall also be disclosed as to from which source rent of commercial property in SEZ Noida is being paid to the concerned Authority, if it is actually on lease, and copies lease documents shall be filed with affidavits. The affidavits shall also give full details of the loans which the respondents claim to have discharged with the money they received from sale of Maharani Bagh property even though that sale has been held by this Tribunal to be a collusive and sham transaction. In particular the respondents shall in their separate affidavits give details of loan dealings between members of Mittal family as reflected in the affidavit of Mr. M.M.Mittal already filed wherein details of disbursements made from the sale proceeds of Maharani Bagh. They shall also give details of the constitution of M/s R.S. Enterprises and R.S.Traders to whom also huge amounts of money were shown to have been made from the sale proceeds of Maharani Bagh property. According to Mr. Rajeeve Mehra all those were bogus entries.
(e) As far as agricultural land in Amritsar also sought to be got attached and sold is concerned the case of respondents as pleaded in their reply to I.A.No. 825/2019 is and which is not being refuted also that that land in under litigation before Delhi High Court and that litigation is between M/s Gee Cee Metals Pvt. Ltd. and the owners of that land who had agreed to sell it to this Corporate guarantor of SBI and so the attachment of that land in any event is liable to be withdrawn. Attachment of Amritsar property accordingly stands lifted. The Authorised Officer of SBI, however, shall keep a track of the ongoing litigation in respect of that property in Delhi High Court because it would depend upon the decision in that case if the Amritsar property becomes available again for attachment in the hands of M/s Gee Cee Metals Pvt. Ltd.
It is made clear that these directions can be modified/supplemented as this fresh exercise proceeds. It is also clarified that pendency of the present proceedings will not come in the way of SBI initiating proceedings under the Negotiable Instruments Act or any other penal law against the party/person which had issued cheques of the value of Rs. 5 crores in favour of SBI during the pendency the present proceedings and which cheques had been dishonoured by the respondents' bank.