THE ASSAM CO-OPERATIVE APEX BANK LTD vs PUNJAB NATIONAL BANK and 8 ORS.

1)Â Heard Mr. D. Saikia, learned Senior Counsel, assisted by Mr. P.N. Goswami, the learned counsel for the petitioner. Also heard Mr. A. Ganguly,

the learned counsel for respondent No. 1, Mr. G.N. Sahewalla, learned Senior Counsel, assisted by Md. Aslam, the learned counsel for the respondent

No. 2, and Mr. D.K. Mishra with Mr. K. Agarwal, learned Senior Counsels, assisted by Mr. D. Akram, the learned counsel for respondent No. 7. Mr.

K. Goswami, the learned Counsel for the respondent No. 5 was present. None appears on call for the other respondents.

2) Both the writ petitions are between the same parties. The learned Senior Counsels/ Counsels for the appearing parties have jointly submitted that

common facts and questions of law arise for consideration in both the writ petitions. As such, on the joint request by both sides, both the writ petitions

have been heard together.

3) On 21.11.2017, when the matter was listed for admission hearing, the learned Senior Counsel appearing for the respondent No. 7 had pressed for a

hearing on the point of maintainability of the writ petition. It would be relevant to mention here that this Court had passed an ad-interim order dated

16.03.2017, in connection these writ petitions. Aggrieved by the said order, the respondent No. 7 had filed a writ appeal, being WA 118/2017.

Although the Hon’ble Division Bench of this Court, by order dated 09.05.2017, dismissed the appeal as withdrawn, however, at the request by the

learned counsel for the respondent No. 7, they were permitted to raise the question of locus of the writ petitioner in these writ petition. Accordingly,

such issue was pressed and this Court had proceeded to first hear the learned Senior Counsel for the respondent No. 7 as the respondent No.7 had

raised such preliminary issue.

CASE PROJECTED IN THE TWO WRIT PETITIONS:

4) Bereft of details, the case of the petitioner in brief is that the petitioner i.e. Assam Co-operative Apex Bank Ltd. (hereinafter referred to as

“Petitioner Bankâ€), is registered under the Assam Cooperative Societies Act, 1949. The petitioner had projected that it had provided financial

assistance to (i) Abhoyjan Tea Co. Pvt. Ltd. (hereinafter referred to as “ATCPL†for short), (ii) Nimodia Plantation & Industries Pvt. Ltd.

(hereinafter referred to as “Respondent No.2†or R-2), and (iii) Sri Lalit Chandra Borah (hereinafter referred to as “Respondent No.3†or

“R-3â€) and Sri Puspendra Nath Borah (hereinafter referred to as “Respondent No.4†or “R-4â€), the consecutive owners of Hautley Tea

Estate, which was acknowledged by them

5) The R-2, who was the last owner of the Hautley Tea Estate, had entered into an Agreement for Sale dated 26.09.1986 with (i) R-3 and (ii) R-4,

wherein both the parties had acknowledged the dues towards the Petitioner Bank and R-2 had handed over the possession of Hautley Tea Estate to

R-3 and R-4. However, since the final sale deed was not executed by R-2, the said R-3 and R-4 had instituted Title Suit No. 18/1987, inter-alia, for

declaration and specific performance of the contract. By judgment and decree dated 20.04.2005, the said TS 18/1987 was decreed in favour of R-3

and R-4 and R-2 was restrained from executing any sale deed in respect of the Hautley Tea Estate in favour of any parties other than the said R-3

and R-4. Against the said judgment and decree, R-2 had preferred an appeal before this Court, being RFA No. 106/2005. It had been stated at the

Bar that the said appeal was pending for adjudication without any interim order.

6) In the meanwhile, Punjab National Bank (hereinafter referred to as “Respondent No.1†or “R-1â€) had filed O.A. No. 21/1997 before the

learned Debts Recovery Tribunal, Guwahati (hereinafter referred to as “DRT, Guwahatiâ€), wherein recovery certificate for a sum of

Rs.22,67,139.64 was issued. Before any recovery could take place, R-3 had filed W.P.(C) No. 10352/2003 before this Court and the Petitioner Bank

herein had filed W.P.(C) No. 10375/2003 before this Court. Both the said writ petitions were dismissed by this Court by an order dated 12.11.2012.

Estate, had abandoned the said property on 15.07.2005. Thereafter, as the workmen had approached the Assistant Labour Commissioner, Golaghat

for non-payment of their dues, the said authority by an order dated 27.12.2006 conditionally attached certain properties of Hautley Tea Estate

described in Schedule-I and II of the petition filed before the said authority. In the meanwhile, the Petitioner Bank had issued a demand notice dated

09.04.2007 on R-3, stated to be the Managing Proprietor of Hautley Tea Estate under Section 13(2) of the SARFAESI Act, 2002. It is projected that

later on, the District Magistrate, Golaghat, who had conditionally attached Hautley Tea Estate as per the direction of the Assistant Labour

Commissioner, Golaghat, gave jimma/ custody of Hautley Tea Estate to one Assam Cha Mazdoor Sangha (hereinafter referred to as “ACMSâ€).

In turn, the said ACMS, by executing a Memorandum of Understanding on 23.05.2008 with Marudhar Tea Co. Pvt. Ltd. (hereinafter referred to as

“Respondent No.5â€​ or “R-5â€​), had handed over to them the possession of Hautley Tea Estate for running and managing the same.

8) It is projected that upon receiving NOC from the ACMS, the Petitioner Bank by virtue of a Deed of Agreement dated 24.05.2008, appointed R-5

as their agent for running Hautley Tea Estate. As per statements made in paragraph 16 of W.P.(C) 13801/7, the handing over of the management of

Hautley Tea Estate to R-5 was unsuccessfully challenged by R-3 before this Court by filing W.P. (C) No. 1246/2009. The ACMS, who had earlier

issued their NOC to the Petitioner Bank for handing over management to R-5 had also filed W.P.(C) No. 1827/2007 to challenge the action of the

Petitioner Bank. Both the said writ petitions were heard by this Court along with FAO No. 5/2012, wherein the Hon’ble Division Bench of this

Court, inter-alia, had held that the possession of the Hautley Tea Estate by the Petitioner Bank and the creation of Managing Agency was lawful.

9) The Petitioner Bank projects that the term of the earlier agreement of appointing R-5 as the managing agent of the Petitioner Bank had came to an

end on 30.11.2015 and as R-5 had failed to offer an acceptable term to the Petitioner Bank, hence, on 15.02.2017, the Petitioner Bank had appointed

Esquire Tea Estates Pvt. Ltd. (hereinafter referred to as “Respondent No.6â€​ or “R-6â€​) as their new managing agent.

10) At that point of time, it came to the notice of the Petitioner Bank that the Recovery Certificate issued by the learned DRT, Guwahati in OA

21/1997 was sought to be executed by way of private treatise between R-1, R-2 and Boruah & Boruah Tea & Trading Pvt. Ltd. (hereinafter referred

to as “Respondent No.7†or “R-7â€). The Recovery Officer, DRT, Guwahati by order dated 06.10.2015, directed the parties to clarify about

the outcome of the TS No. 18/1987. It is projected that the dues of the Petitioner Bank finds mention in the judgment and decree dated 20.04.2005,

passed in TS 18/1987.

11) Projecting that such disclosures, if made before the Recovery Officer, DRT, Guwahati would have gone against their interest, the R-1, R-2 and R-

7, in a collusive manner, obtained an order from the learned Debts Recovery Appellate Tribunal, Kolkata, and got the recovery proceedings of OA

21/1997 transferred from the Recovery Officer, DRT, Guwahati to DRT-I, Kolkata. It is projected that without putting the Petitioner Bank to any

notice, the learned DRT-I, Kolkata by the impugned order dated 04.10.2016, accepted the collusive and fraudulent private negotiation and treatise

amongst R-1, R-2 and R-7 and issued a “sale certificate†in favour of R-7 in respect of Hautley Tea Estate for a consideration of Rs.75.90 lakh

against property worth more than Rs.20.00 Crore.

12) Hence, the writ petitions had been filed, inter-alia, on the ground that the orders from DRAT, Kolkata and DRT-I, Kolkata were obtained in

collusion and practicing fraud on the said learned Tribunals and by suppression of material facts because the Hautley Tea Estate, which was worth

more than Rs.20.00 Crore then and now worth over Rs.60.00 Crore was sold for a paltry sum of Rs.75.90 lakh.

13) In WP(C) 1380/2017, prayers have been made to the following effect:-

a. For issuing writ of certiorari for setting aside and quashing the order dated 04.10.2016 passed by the learned Debts Recovery Tribunalâ€"I, DRT-I,

Kolkata in case No. TA/04/2016 and further actions subsequent and consequent thereto; and b. For issuing writ of certiorari to set aside and quash the

sale certificate dated 14.10.2016 issued by the learned Recovery Officer, DRT-I, Kolkata in terms of impugned order dated 04.10.2016 passed by the

learned Debts RecoveryTribunalâ€"I, DRT-I Kolkata in Case No. TA/04/2016 in favour of R-7 in respect of Hautley Tea Estate, Golaghat and any

further actions adopted subsequent and consequent thereto; and

c. For issuing writ of mandamus directing the respondent authorities to forthwith cancel/recall/rescind and/or otherwise for bear from giving effect to

the order dated 04.10.2016 passed by the learned DRT-I, Kolkata in case No. TA/04/2016 and the consequential sale certificate in respect of Hautley

Tea Estate and any further action adopted subsequent and consequent thereto.

14) In connection with WP(C) 1551/2017, prayers have been made to the following effect:-

a. For a writ of certiorari to set aside and quash the order dated 21.07.2016 passed by the learned DRAT, Kolkata in Application No. 101/2016/120/55

by which O.A. No. 21/1997, pending before the Recovery Officer, DRT, Guwahati had been transferred to the Recovery Officer, DRT-I, Kolkata

and any further actions adopted subsequent and consequent thereto; and

b. For a writ of mandamus for directing the respondent authorities to forthwith cancel/recall/rescind and/or otherwise for bear from giving effect to the

order dated 21.07.2016 passed by the learned DRAT, Kolkata in Application No. 101/2016/120/55 by which O.A. No. 21/1997, pending before the

Recovery Officer, DRT, Guwahati had been transferred to the Recovery Officer, DRT-I, Kolkata and any further actions adopted subsequent and

consequent thereto.

INTERIM ORDER DATED 16.03.2017 IN THESE TWO WRIT PETITIONS:

15) This Court by an interim order dated 16.03.2017, took note of the fact that by order dated 06.10.2015, passed in the recovery proceeding before

the learned DRT, Guwahati, wherein it had been recorded that the value of Hautley Tea Estate was around Rs.5.68 Crore in the year 2003, which

was sold at an amount of Rs.75.90 lakh in the year 2016. Hence, as an interim measure, it was provided that the R-7, i.e. the purchaser of the garden

would not make any material alteration in the garden and not to alienate the property in any manner until further orders, further providing that the said

purchaser shall also maintain a separate account of the transaction of the garden and for the purpose. It was also provided that the Deputy

Commissioner, Golaghat shall appoint a responsible officer to supervise and verify the accounts of the Tea garden from time to time as may be

required. It was also provided that all transaction which the tea garden undertakes henceforth, shall be subject to the final outcome of the writ petition

and the purchaser cannot claim any equitable favour which may accrue to them in the meantime. The R-1, who was the beneficiary of the amount of

Rs.75.90 lakh, was directed to keep the said amount in a separate interest bearing account and was also directed not to utilize the amount in any

manner until further orders from this Court. The Commissioner Secretary to the Government of Assam, Revenue Department was directed to appoint

a reliable and competent Government approved surveyor to make a survey and assessment on the possible value of the concerned Tea garden as on

16.03.2017 as well as at the time when the sale was executed. This court had also stayed the order dated 21.07.2016 passed by the learned DRT,

Kolkata (sic. ought to be DRAT, Kolkata) in Application No. 101/2016/120/55 and consequently, it was also provided that the subsequent orders

passed by the learned DRT, Kolkata (sic. ought to be DRT-I, Kolkata) shall, for the time being, be considered to be a nullity.

SUBMISSIONS MADE ON BEHALF OF R-7, AS THE SAID RESPONDENT HAD RAISED PRELIMINARY ISSUE OF

MAINTAINABILITY AS WELL AS LOCUS STANDI OF THE WRIT PETITIONERS:

16) Mr. D.K. Mishra, the learned Senior Counsel for R-7, i.e. the purchaser of Hautley Tea Estate has submitted that in the writ petition, it was

projected that by depositing the original Sale Deed dated 01.05.1970, ATCPL had mortgaged the property of Hautley Tea Estate and availed financial

assistance. In paragraph 5 of the writ petition, it was projected that by letter dated 01.02.1974, the Petitioner Bank had asked ATCPL to comply with

necessary formalities and after observing such formalities, ATCPL had had created mortgage of Hautley Tea Estate by depositing original title deeds.

It is submitted that however, the Petitioner Bank had not been able to produce a copy of the mortgage register and/or any a copy of the memorandum

of entry to establish creation of a lawful and valid mortgage.

17) It is submitted that mortgage was required to be enforced within the prescribed period of limitation of 12 years and, as such, assuming but not

admitting that any mortgage was created, the enforceability of such mortgage had lapsed by efflux of time.

18) It is submitted that it was the pleaded case of the Petitioner Bank that by executing a registered Agreement for Sale dated 04.01.1982, the said

ATCPL had handed over the possession and management of Hautley Tea Estate to one Shew Prasad Nimodia at Rs.45.00 lakh, being the value of

the garden land, plant and machinery and another Rs.45.00 lakh, being the liability toward the Petitioner Bank as on 01.01.1982. It is submitted that as

per the statements made in paragraph 6 of W.P.(C) No. 1380/17, it is the admitted case of the Petitioner Bank that since by the aforesaid Agreement

for Sale, the said ATCPL and Shew Prasad Nimodia had acknowledged the outstanding amount due to the Petitioner Bank, the Petitioner Bank had

granted working finance to the said Shew Prasad Nimodia for and on account of Hautley Tea Estate for 1980-83 and 1983-84. In light of such

admitted transactions, the learned Senior Counsel for R-7 had submitted that as the Petitioner Bank had advanced finance to the said Shew Prasad

Nimodia, for and on behalf of Hautley Tea Estate, the alleged equitable mortgage, if any, created by ATCPL stood discharged. It is submitted that at

the time when Shew Prasad Nimodia was provided finance, he had not become the owner of Hautley Tea Estate and, as such, he could not have

either created a valid mortgage over Hautley Tea Estate, nor he could have extended the alleged mortgage of Hautley Tea Estate to cover his

personal transaction with the Petitioner Bank.

19) It is submitted that in the writ petition, the Petitioner Bank had admitted that by the final Sale Deed dated 09.01.1984, executed by ATCPL,

Hautley Tea Estate was conveyed to R-2 on sale consideration of Rs.90.00 lakh, which was inclusive of Rs.45.00 lakh to be paid to the Petitioner

Bank towards its liability as on 31.12.1981 and that the sale was made effective from 01.01.1982. However, no document has been produced to show

that R-2 had delivered the said title deed (i.e. Sale Deed dated 09.01.1984) to the Petitioner Bank to create a valid equitable mortgage over Hautley

Tea Estate.

20) It is further submitted that as the Petitioner Bank had acknowledged their knowledge about the Agreement for Sale dated 04.01.1982 as well as

about the Sale Deed dated 09.01.1984 by ATCPL in respect of Hautley Tea Estate, if the Petitioner bank continued to hold over the Sale Deed dated

01.05.1970, by which ATCPL had purchased Hautley Tea Estate, it would not give the Petitioner Bank any privilege as a mortgagor as because the

said Sale Deed dated 01.05.1970 had become a spent force.

21) It is submitted that in the writ petition, it was projected that as ATCPL and R-2 had both failed to liquidate the dues of the Petitioner Bank, they

had filed TS No. 15/1985 before the learned court of Assistant District Judge No. 1, Guwahati (as it was then) and that the said suit was decreed on

02.07.1986 for a sum of Rs.45.00 lakh and that by a subsequent order dated 02.09.1886, the said learned Court had included interest at the rate of

18% on the decreetal amount of Rs.45.00 lakh. Hence, it is submitted that the enforceability of the said decree dated 02.07.1986 as modified on

02.09.1986 had lost its force after lapse of a period of 12 years from the date of the decree, as such, there cannot be any existing or subsisting right of

the Petitioner Bank in respect of its alleged dues as an alleged mortgagor.

22) It is also submitted that by an Agreement for Sale dated 26.09.1986, R-2 had proposed to sell Hautley Tea Estate to (i) R-3 and (ii) R-4 at a

consideration of Rs.2.10 crore, which was inclusive of all liabilities including that of the Petitioner Bank, provident fund, electricity, staff and labour

wages, etc. However, as per the said agreement, possession of Hautley Tea Estaet was handed over by R-2 to R-3 and R-4. In paragraph 9 of the

writ petition, the Petitioner Bank had specifically pleaded that “… Although Sri Lalit Chandra Bora liquidated the earlier dues of the Bank,

however, the tea estate continued to enjoy financial assistance from the petitioner bank and for that purpose entire tea crops, including green leaves of

the said tea estate are hypothecated with the bank. Further other properties of the said estate also continued to remain mortgaged with the petitioner

bank.†By referring the above, it is submitted by the learned Senior Counsel for R-7 that if R-3 had admittedly liquidated all dues of the Petitioner

Bank, the alleged mortgage by ATCPL by allegedly depositing Sale Deed dated 01.05.1970, must be held to be duly discharged. It is also submitted

that as no sale deed was executed by R-2, no right, title or interest over Hautley Tea Estate had passed on from R-2 in favour of R-3 and R-4. Hence,

R-3 and R-4 could neither have lawfully created any fresh equitable mortgage over Hautley Tea Estate in favour of the Petitioner Bank and similarly,

R-3 and R-4 could also not have validly extended the purportedly non- existing mortgage to cover for their transactions with the Petitioner Bank.

Moreover, it is submitted that the Petitioner Bank had not produced any document to show that R-3 and R-4 had validly and lawfully created and/or

extended mortgage of Hautley Tea Estate in order to create security in favour of the Petitioner Bank.

23) It is further submitted that Hautley Tea Estate is merely the name of a Tea garden. The Petitioner Bank had not produced any document which

could establish that Hautley Tea Estate was a legal entity, as such, it is further submitted that there was no way that any account could have been

operated by Hautley Tea Estate in its own name. Hence, it is submitted that there is no possibility that Hautley Tea Estate could have borrowed

money or could have created any equitable mortgage by deposit of its title deeds. It is also submitted that it was the pleaded case of the Petitioner

Bank that the ownership of the said hautley Tea Estate had been transferred from time to time and that the Petitioner Bank had advanced loans to

individuals like Shew Prasad Nimodia, R-3, R-4 and also to Company i.e. R-2, as possessors and/or owners of Hautley Tea Estate, thus, the Petitioner

Bank had disassociated itself with the alleged mortgage created in year 1974. The three earlier persons availing finance from Petitioner Bank, vis.,

Shew Prasad Nimodia, R-3 and R-4, not being the lawful owners of the said Tea Estate, could not have any power or authority to create a fresh

mortgage and/or extend the alleged mortgage of the year 1974 so as to bind the said Hautley Tea Estate for finance allegedly availed by them.

Moreover, it is submitted that by recognizing the presence of Shew Prasad Nimodia, R-3 and R-4 and R-2 as owners of Hautley Tea Estate, the

Petitioner Bank was hit by the principles of waiver and acquiescence of any charge that might have been created previously.

24) It is submitted that this is not a case where the said Tea Estate was transferred behind the back of the Petitioner Bank, and the Bank did not

acknowledge subsequent transfer of Hautley Tea Estate. But in the present case, not only the Petitioner Bank acknowledged the repeated transfer of

Hautley Tea Estate, but allowed subsequent owners and other persons to avail finance, allegedly on behalf of the said Tea Estate, as such, it is

submitted that the alleged creation of mortgage in the year 1974 could not be enforced in any way by this writ petition.

25) By referring to the decree dated 20.04.2005, passed by Court of Civil Judge (Senior Division), Golaghat in TS No.18/1987, which is annexed as

part of Annexure-E to W.P.

(C) No. 1380/17, it is submitted that the Petitioner Bank as well as New Bank of India (the predecessor in interest of R-1) were parties to the said suit

filed by R-3 and R-4. Thus, in the year 1987, when the suit was filed, the Petitioner Bank was aware that the Hautley Tea Estate was transferred by

ATCPL to R-2 and that R-2 had proposed to sell the said Tea Estate to R-3 and R-4, but it did not do anything to realize its dues from ATCPL. Thus,

the Petitioner Bank cannot feign ignorance of transfer or Hautley Tea Estate by ATCPL. Thus, the previous mortgage, if any, by virtue of deposit of

Sale Deed dated 01.05.1970 would not confer the Petitioner Bank with any right whatsoever by virtue of its own conduct.

26) By heavily relying on a copy of the “No dues certificate†dated 16.08.2001 [Annexure-IV(Series) at pp.47 to the Affidavit- in- Opposition

filed by R-7 in W.P.(C) 1380/17], it is submitted that their entire liability of Rs.1,13,32,217.46 (Rupees One Crore thirteen lakh thirty two thousand two

hundred seventeen and paise forty six), due from R-2 was paid by R-3 and it was specifically certified by the Petitioner Bank that there was no

outstanding balance in the account and thus the account was liquidated. However, the Petitioner Bank did not produce any document to prove how

despite liquidation of loan on 16.08.2001, its alleged right as a purported mortgagor had survived.

27) By referring to the notice dated 09.01.2007, issued under Section 13(2) of the SARFAESI Act, 2002 [Annexure-L to W.P.(C) No. 1380/17], it is

submitted that the Petitioner Bank had issued the said notice to R-3 only. The said notice contained a list of documents creating securities, which only

mentioned that credit facilities was extended to Hautley Tea Estate, but it did not mention about any document in Schedule-B thereof, by which

equitable mortgage was created in respect of Hautley Tea Estate. It is strongly submitted that in Schedule-C of the said notice, Part-I indicated the list

of hypothecated properties, but Part-II reflected that mortgage was created in respect of 2B-3K-18L land covered by Dag No. 505, 528, 529 and 530

of Patta No. 190 of Village- Town Nartam (Nagaon), Mouza, Town and District- Nagaon, which in other words proved that as per the contents of the

said SARFAESI notice, no equitable mortgage had been created in respect of Hautley Tea Estate, which is located in the district of Golaghat.

28) It is submitted that the Petitioner Bank came from outside and manufactured a sequence of events to project as if they had appointed R-5 as their

Managing Agent. It is submitted that by virtue of order dated 27.12.2006, passed by Assistant Labour Commissioner- cum- Authority under the

Payment of Wages Act, 1936, Golaghat in Case No. P.W.3 of 2006 (A. Tirkay, ACMS, Golaghat Branch & 3 others Vs. Lalit Chandra Borah,

Managing Proprietor, Hautley Tea Estate & Anr.) [Annexure-N of W.P.(C) No. 1380/17], the property described in Schedule-I and II of the said

petition was conditionally attached and that the District Magistrate, Golaghat was directed to take necessary action for closure and attachment and

jimma of properties and interest of the parties. It is submitted that no record has been produced by the Petitioner Bank to show how the attachment of

Hautley Tea Estate was purportedly carried out by the District Magistrate. However, on 23.05.2008 [Annexure-O to W.P.(C) No. 1380/17], in

anticipation of appointment to be given by Petitioner Bank, an interim MoU had been reached between the workers of Hautley Tea Estate and R-5

and that the management of the said Tea Estate was handed over to R-5. Later on, by a Deed of Agreement dated 24.05.2008 [Annexure-P to W.P.

(C) No. 1380/17] between the Petitioner Bank and R-5, the R-5 was made the Managing Agent of Hautley Tea Estate. Thus, the Petitioner came into

the picture out of blue through R-5. It is submitted that without being the lawful owner of possessor of Hautley Tea Estate, the Petitioner Bank could

not have appointed R-5 as Managing Agent, when the property of Hautley Tea Estate was under custodia legis and/or court custody of the Assistant

Labour Commissioner through attachment carried out by the District Magistrate, Golaghat. Moreover, it is submitted that the Agreement dated

23.05.2008 established that R-5 was handed over the Hautley Tea Estate by ACMS and, as such, it was not the pleaded case of the petitioner that R-

5 was given control over the said property by the Petitioner Bank. It is submitted that there is no document to prove how the Petitioner acquired right,

title, interest or possession over Hautley Tea Estate.

29) Referring to (i) the judgment and decree dated 02.07.1986 in TS 15/1985 (Assam Co-op Apex Bank Ltd. Vs. Abhoyjan Tea Co. Pvt. Ltd. & 8

others), (ii) judgment and decree dated 20.04.1985 in TS No. 18/1987 (Lalit Ch. Borah & Anr. Vs. Nimodia Plantation & Industries Pvt. Ltd. & 4

others), it is submitted that the plaintiffs of both cases did not enforce the decree, which has rendered it toothless paper which has lapsed by efflux of

time, having not been executed within the prescribed period of limitation. Hence, no right can be said to have accrued thereunder after expiry of the

period of limitation to execute the said decrees. Hence, any reference to them would be only academic. It is submitted that the petitioner Bank had no

locus to file the present writ petitions.

30) By referring to (i) common judgment dated 26.11.2004 by this Court in W.P. (C) No. 1827/2007 (Secretary, Assam Chah Mazdoor Sangha Vs.

The State of Assam & 8 others), and (ii) W.P.(C) No. 1246/2009 (Lalit Ch. Borah Vs. The Assam Co-op Apex Bank Ltd. & 2 others), and (iii) FAO

No. 9/2012 (Marudhar Tea Co. Pvt. Ltd. Vs. Lalit Ch. Borah), it I submitted that the parties to the DRT proceeding viz., R-1, R-2 and R-7 were not

parties to those cases. Therefore, observations made by this Court in those cases, are not binding on the said R-1, R-2 and R-7. Moreover, it is

submitted that the said order is mired with apparent inconsistencies, which cannot be read as a binding precedent and in this regard, reference is made

to the findings recorded in paragraph 4 and 9 of the said order. In paragraph 4 of the said order, it is mentioned that “4. The petitioner in WP(C)

1827/2007, who is the labour union of the said TE, gave a petition to the Labour Commissioner. With regard to non-payment of wages the Labour

Commissioner referred the matter to the Deputy Commissioner (DC) Golaghat, who is an authority under the Payment of Wages Act. The DC took

over the possession of the Tea estate and handed over its ‘management’ to a committee constituted by the labour union.†In paragraph 9, it

has been mentioned that “9. With regard to WP(C) 1827/2007, the District Magistrate (DM) had initiated a proceedings under the Payment of

Wages Act for taking over the possession of the tea estate for proper management and for paying salaries to the workers. However, when the apex

bank exercised its rights as a mortgagee and taken possession perhaps the DM can hardly resist such an act on the part of the bank and more so

when the bank has been paying the salaries to the employees, admittedly. Therefore there appears to be no merit in W.P.(C) 1827/2007.†Referring

to the said paragraphs, it is submitted that contents of both paragraphs are inconsistent. It is submitted that as per order dated 27.12.2006 [Annexure-

N, pg.146-151 of W.P.(C) 1380/17], it was the Assistant Labour Commissioner â€" cum Authority under the Payment of Wages Act, 1936 who had

passed the order for conditional attachment and by the same order, matter was sent to District Magistrate to cause attachment and to give such

property in zimma, which was wrongly projected before this Court to be order passed by DM/DC/Labour Commissioner. There is no material on

record that the Petitioner Bank had exercised its right as a mortgagee or had made payment of any salary or wages to the workers of Hautley Tea

Estate. It is further stated that there was no document to establish that the Petitioner Bank had taken over possession of Hautley Tea Estate under

SARFAESI Act, as held in paragraph 5 of the said order, when the SARFAESI notice [Annexure-L of W.P.(C) 1380/17] did not indicate that

Hautley Tea Estate was mortgaged to the Petitioner Bank. It is also submitted that although in paragraph 8 of the order, there is a mention that the

Petitioner Bank initiated proceedings under BPDR Act, 1913 but, no material has been produced in these writ petitions to show the exercise of such

right against the properties of Hautley Tea Estate. Moreover, possession was not given to R-5 by the Petitioner Bank but, it was delivered by ACMS

on 23.05.2008, before Deed of Agreement dated 24.05.2008 was executed by the Petitioner Bank. It is also submitted that earlier order dated

21.11.2003 passed by the Recovery Officer [Annexure-G of W.P.(C) 1380/17] and the order dated 12.11.2012 [Annexure-J and K to W.P. (C)

1380/17], passed by this Court were not brought to notice of this Court when order dated 26.11.2014 was being passed. Therefore, in light of above

referred documents and MoU dated 23.05.2008 [Annexure-O to W.P.(C) 1380/17] and Deed of Agreement dated 24.05.2008 [Annexure-P to W.P.

(C) 1380/17], it is submitted that it can only be presumed that because of incorrect portraying of facts before this Court, incorrect finding has been

recorded by this Court, for which the common judgment dated 26.11.2014 cannot be said to be an authority on the facts which it had decided and such

order cannot bind the R-7 in any manner as it was not a party in the said proceeding. It is, thus, submitted that the petitioner Bank had no locus to file

the present writ petitions.

31) Similarly, it is submitted that order dated 12.11.2012 in W.P.(C) No. 10352/2005 (Lalit Ch. Borah Vs. Union of India & Ors.) [Annexure-J to

W.P.(C) 1380/17] and order dated 12.11.2012 in W.P.(C) No. 10375/2005 (Assam Co-op Apex bank Ltd. Vs. Union of India & Ors.) [Annexure-P

to W.P.(C) 1380/17], cannot be said to be a finding of fact to the effect that Hautley Tea Estate was mortgaged with Petitioner Bank and at least the

R-7 is not bound by the said order. Moreover, it is submitted that if R-2 was the owner of Hautley Tea Estate and had mortgaged the property by

delivering its title deeds, the Sale Deed dated 01.05.1970, held in original by Petitioner Bank was without creation of any valid mortgage at all. Hence,

the petitioner Bank had no locus to file the present writ petitions.

32) The learned Senior Counsel for the R-7 has referred to the proceedings before the DRT, Guwahati, DRAT, Kolkata and DRT-I, Kolkata, and had

submitted as follows:

a. It is submitted that as per order dated 03.11.2003, in recovery proceeding before Recovery Officer, DRT, the Petitioner Bank had filed a petition

No. 272, praying for adjournment on the ground that they would file a petition before the Presiding Officer, DRT, Guwahati for impleadment as party

as the attached property was mortgaged to them. The said petition was rejected by order dated 03.11.2003 on the ground that after final order was

passed and recovery certificate was issued such prayer could not be allowed under Section 19(2) of Recovery of Debts Due to Banks & Financial

Institutions Act, 1993 (hereinafter referred to as “RDDBFI Actâ€). It is submitted that the said order had attained finality and, as such, the

Petitioner did not have any locus to maintain their challenge.

b. It is further submitted that in the same order dated 03.11.2003, by referring to Certificate dated 16.08.2000, which disclosed that there is no

outstanding balance payable by R-2 for the account of Hautley Tea Estate, but owing to disclosure made by R-3 that he had mortgaged Hautley Tea

Estate to Petitioner Bank, the Recovery Officer had directed the Petitioner Bank to disclose (i) whether the movable and immovable properties of

Hautley Tea Estate was mortgaged to Petitioner Bank after liquidation of earlier liabilities as per Certificate dated 16.08.2000, (ii) if so, who created

the mortgage, for what amount and when was it created, and (iii) In support of the above, to furnish a certified copy of the letter of intent be produced

on 11.11.2003 with report. It is submitted that the said report is yet to be produced and that disclosures to the said effect has also been suppressed in

the present writ petitions. Hence, the Petitioner Bank, having failed to produce such particulars as per order dated 13.01.2016 and 07.03.2016

[Annexure-VIII (Series) of A/O by the R-7 in W.P.(C) 1380/17] and yet they could stall the process before Recovery Officer, DRT, Guwahati, for

about 14 years, the aggrieved parties had a right to seek transfer of the proceeding, which cannot be assailed by the Petitioner, as their purported right

had been lost by the said order dated 03.11.2003, which had attained finality. Hence, it is submitted that the Petitioner Bank had no locus.

c. Referring to the order dated 23.11.2003 passed by the Recovery Officer [Annexure-G of W.P.(C) 1380/17], it is submitted that the Petitioner Bank

had participated in the said proceeding. The Recovery Officer, DRT, Guwahati, had recorded a clear finding that an amount of Rs.10,94,80,000/- was

taken by R-3 by executing hypothecation deeds and promissory notes though he was legally not the owner of Hautley Tea Estate and with a further

finding was recorded that the Petitioner Bank failed to submit any mortgage deed in support of its contention that Hautley Tea Estate was continued to

be mortgaged with it. The Recovery Officer further held that he was not convinced to accept that the property of Hautley Tea Estate is still

mortgaged to the Petitioner Bank. Thus, the finding of fact by the Recovery Officer, DRT, Guwahati that the property of Hautley Tea Estate was not

mortgaged in favour of the Petitioner Bank had attained finality. Hence, it is submitted that the Petitioner Bank had no locus to re-open the issue after

such a finding.

d. Referring to the Petitioner bank’s letter dated 15.11.2003 [Annexure-VI of A/O by the R-7 in W.P.(C) 1380/17], which was filed by the

Petitioner Bank before Recovery Officer, DRT, Guwahati, it is submitted that in para-12 of the said letter, the Petitioner Bank had admitted that

mortgage was created in the year 1974, which according to the learned Senior Counsel for the R-7, was contradictory to Certificate dated 16.08.2000

issued by the Petitioner Bank that R-3 had cleared all its dues and no dues was recoverable, thus, unless the lawful owner created any subsequent

mortgage, the Petitioner had no legs to sustain their challenge.

e. It is submitted by the learned Senior Counsel for the R-7 that the orders dated 03.11.2003, 21.11.2003 passed by the Recovery Officer, DRT,

Guwahati, and order dated 12.11.2012 passed by this Court in  W.P.(C) 10376/2003, having attained finality, it was not open to the Petitioner Bank

to open-up and maintain a third round of litigation on the same subject matter of their alleged claim of property of Hautley Tea Estate being mortgaged

with them.

f. It is further submitted that although this Court would have jurisdiction to entertain a writ petition challenging transfer of proceedings from DRT,

Guwahati to DRT-I, Kolkata, but as against orders which were passed by DRT-I, Kolkata, any appeal would be maintainable only before DRAT,

Kolkata. It is submitted that after assuming jurisdiction, both DRAT, Kolkata and DRT-I, Kolkata would be outside the territorial jurisdiction of this

Court. In this connection, the learned Senior Counsel for the R-7 has relied on the case of-

i. K. Anbazhagan Vs. Superintendent of Police & Ors., (2004) 3 SCC 767;

ii. K. Anbazhagan Vs. State of Karnataka, (2015) 6 SCC 158; and

iii. State of Karnataka Vs. J. Jayalalitha & Ors., (2017) 6 SCC 263.

33) In support of the other submissions, the learned Senior Counsel for the R-7 has placed reliance on the following case citations:

a. A.R. Antulay Vs. (1988) 2 SCC 602.

b. (2015) 4 SCC 1.

c. Fibre Boards Pvt. Ltd. Vs. C.I.T., (2015) 10 SCC 333.

34) On all these aforesaid counts, the learned Senior Counsel for R-7 has submitted that Hautley Tea Estate was never mortgaged with the petitioner

Bank and assuming but not admitting that there was such a mortgage, it was not enforceable and the rights of the Petitioner Bank was already

rejected by order dated 21.11.2003 by the Recovery Officer, DRT, Guwahati, the Petitioner Bank could not have interfered in recovery proceedings

of OA 21/1997 and consequently, the Petitioner Bank had no locus standi to file the present writ petitions.

SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR R-1:

35) While relying on the submissions already made by the learned Senior Counsel for the R-7, Mr. A. Ganguly, the learned Counsel for the R-1 i.e.

Punjab National Bank has further submitted that his submissions may be grouped into four compartments, as enumerated below:

a. Locus standi of the petitioner Bank: In this connection, it is submitted that a writ petition would only be maintainable (i) for the purpose of enforcing

a legal or statutory right, (ii) for enforcing any other fundamental right, (iii) or where there was a genuine grievance that there has been a breach of

any statutory duty on part of the State Respondents, and all these ingredients were lacking in this case. It is also submitted that highly disputed

question of facts has been raised by the Petitioner Bank, which cannot be effectually decided in a writ proceeding. Moreover, it is submitted that the

petitioner Bank was agitating a time barred claim. In support of his submissions, the learned Counsel for R-1 has relied on the case of Ayaaubkhan

Noorkhan Pathan Vs. The State of Maharashtra, (2013) 4 SCC 465.

b. Executability of judgment and decree dated 20.04.2005 in TS No. 18/1987 (Lalit Ch. Borah & Anr. Vs. Nimodia Plantation & Industries Pvt. Ltd.

& others), passed by Court of Civil Judge (Senior Division), Golaghat; and judgment and decree dated 02.07.1986 passed by Court of Assistant

District Judge No.1, Guwahati, in TS No. 15/1985 (Assam Co-operative Apex Bank Ltd. Vs. Abhoyjan Tea Co. Pvt. Ltd. & Ors: In this regard, it is

submitted that both the decrees referred above, have lost its force and its enforceability was barred by the provisions of Article 136 of the Schedule of

the Limitation Act, 1963. Therefore, a decree which was barred by limitation cannot create any judicially enforceable right. In this connection, the

learned Counsel has relied on the case of Ram Bachan Rai & Ors. Vs. Ram Udar Rai & Ors., (2006) 9 SCC 446.

c. Claim of the Petitioner on the basis of Agreement for Sale dated 26.09.1986 between Nimodia Plantation & Industries Ltd. and Lalit Chandra

Borah & Puspendra Nath Borah: In this respect, it is submitted that by the said Agreement for Sale dated 26.09.1986, R-3 and R-4 could not have

obtained proprietorial right over the immovable properties of Hautley Tea Estate and, as such, after the Petitioner Bank issued “No Dues

Certificate dated 16.08.2000†in favour of R-3, no valid mortgage could have been created again after 16.08.2000. Hence, it is submitted that in the

absence of any admissible document showing a lawful and valid creation of mortgage over Hautley Tea Estate, no cognizance of mortgage created in

the year 1974 could be taken after certificate dated 16.08.2000 was issued by Petitioner Bank. In support of his contentions, the learned Counsel for

R-1 has relied on the case of State of Uttar Pradesh Vs. District Judge & Ors., (1997) 1 SCC 496.

d. Claim on the basis of SARFAESI Proceeding: In this regard, it is submitted that R-2 was the lawful owner of the movable and immovable

properties of Hautley Tea Estate, but SARFAESI notice under Section 13(2) was issue only to R-3 and not to R-2. The schedule appended to the said

notice did not indicate existence of mortgage over Hautley Tea Estate, and that moreover, there was no reference about the date of creation of

mortgage or documents by which mortgage was created. It is also submitted that there was nothing on record that the Petitioner Bank had taken over

possession of Hautley Tea Estate by taking recourse to any law in force including SARFAESI Act. Thus, it is submitted that there existed no judicially

enforceable right of the Petitioner Bank. In this regard, reliance is placed on the case of (i) Somnath Manocha Vs. Punjab & Sind Bank & Anr., AIR

2012 Del 168, and (ii) Dr. Dipankar Chakraborty Vs. Allahabad Bank, judgment dated 07.07.2017 by Calcutta High Court in W.P. No. 16511 (W) of

2016 (print-out from http://indiankanoon.org).

SUBMISSIONS BY THE LEARNED SENIOR COUNSEL FOR R-2:

36) Supporting the submissions made by the learned Senior Counsel for the R-7 as well as by the learned Counsel for R-1, Mr. G.N. Sahewalla, the

learned Counsel for the R-2 i.e. Nimodia Plantation & Industries Pvt. Ltd. has further submitted that as the erstwhile owners of Hautley Tea Estate,

they had no objection to (i) the impugned order dated 21.07.2016, by learned DRAT, Kolkata, thereby transferring the recovery proceeding from

Recovery Officer-II, DRT, Guwahati to the DRT-I, Kolkata, (ii) subsequent transfer or proceeding and orders passed by the learned DRT-I, Kolkata,

and (iii) the issuance of the Sale Certificate by the Recovery Officer-I, DRT-I, Kolkata. It is submitted that assuming but not admitting that there was

any truth in the allegation that the sale was made at low price, the R-2 is not at all the aggrieved party. Therefore, it was not open for the Petitioner

Bank to challenge such sale, because if the Petitioner Bank had a valid mortgage, no one had ever prevented the Petitioner Bank to enforce such its

right as a mortgagee. It is further submitted that the apart from the amount disclosed in the sale certificate, as per the joint compromise petition filed

by the parties before the DRT-I, Kolkata, the purchaser had been informed about huge dues on account of electricity, land revenue, taxes,

worker’s dues, statutory dues including Provident Fund contribution, and various other dues, which would aggregate to more than Rs.11.00 Crore,

and, as such, there was no truth in the allegations by the Petitioner Bank that Hautley Tea Estate was sold under conspiracy and fraud and for a paltry

amount, which is submitted to be far from truth.

37) The learned Senior Counsel for the R-2 has placed reliance on the cases of:

a. Ratansingh Vs. Vijaysingh; (2001) 1 SCC 469;

b. Manohar, Shankar Nale Vs. Jaipalsing, Shivlalsing Rajput, (2008) 1 SCC 520.

CONTRA SUBMISSIONS BY THE LEARNED SENIOR COUNSEL FOR THE WRIT PETITIONER:

38) Per contra, the learned Senior Counsel for the Petitioner has submitted in his argument that the present case had four parallel storylines. In this

regard, it is submitted that the main plank of his submission was that the entire episode of obtaining an order from the learned DRAT for transfer of

the recovery proceeding of OA 21/1997 from Guwahati to Kolkata was stage managed and was vitiated by overwhelming evidence of collusion and

fraud because the property worth about Rs.60.00 Crore was sold for almost a song for a paltry amount of Rs.71,47,008/-. It is submitted that all his

submissions are backed by pleadings on record.

39) The submissions made by the learned Senior Counsel for the Petitioner on three facets of fraud, and collusive litigation and one facet of

establishing the right of the Petitioner are summarized as follows:-

a. On history of ownership of Hautley Tea Estate and validity of mortgage:

i. In this connection, by referring to the Sale Deed dated 09.01.1984, executed by ATCPL in favour of R-2, it is submitted that in the said sale deed

there is a narration by which R-2 had taken over all the liability due to the Petitioner Bank.

ii. Thereafter, R-2 had merely handed over the possession of Hautley Tea Estate to R-3 and R-4, without executing any formal sale deed. However,

in the Agreement for Sale, there is a statement to the effect that a sum of Rs.68,36,551.30 was the liability payable to the Petitioner Bank and it also

contained a statement that a sum of Rs.7,75,000/-was payable to R-1.

iii. Thus, according to the learned Senior Counsel for the Petitioner Bank, the R-2, R-3 and R-4 had admitted and acknowledged their liability towards

the Petitioner Bank, which extended the period of limitation to enforce the mortgage.

iv. R-3 and R-4 thereafter filed a suit for specific performance of contract, being TS No. 18/1987, which was decreed. The Petitioner Bank was

arrayed as Defendant No.4 in the said suit. Therefore, as per the decree, the said Hautley Tea Estate could only be sold to R-3 and R-4. Against the

said decree the R-2 had preferred an appeal, being RFA No. 106/2005, which is pending for disposal before this Court. Thus, it is submitted that their

mortgage was never in jeopardy.

v. Therefore, when the Recovery Officer, DRT, Guwahati, had asked the parties to make full disclosure of material facts by order dated 06.10.2015,

in order to (i) avoid discovery of material facts by Recovery Officer, DRT, Guwahati, and to overcome the handicap of decree passed in TS 18/1987

and the pending appeal before this Court, the concerned parties, i.e. R-1 and R-2 went to DRAT, Kolkata in collusion with R-7 and in a collusive

application, got the recovery proceeding of OA 21/1997 transferred to DRT-I, Kolkata, so that orders can be passed behind the back of the petitioner.

vi. Thus, it is submitted that the mortgage of the Hautley

Tea Estate with the Petitioner in the year 1974 remained unaffected by subsequent transfer, as the successive occupiers continued to avail finance for

Hautley Tea Estate on the strength of such existing mortgage.

b. Proceedings before DRT, Guwahati: In this connection, it is submitted that R-1 had filed OA No. 21/1997 before DRT, Guwahati, wherein by order

dated 17.03.2003, Recovery Certificate was issued for an amount of Rs.22,67,139.64, with interest from the date of filing of OA till recovery. In the

recovery proceeding, the Petitioner Bank had appeared and in order dated 21.11.2003, though the Recovery Officer had observed that property was

mortgaged with the Petitioner Bank, it was held that R-2 was the owner of Hautley Tea Estate. However, the Recovery Officer, DRT, Guwahati had

ordered auction sale of Hautley Tea Estate at the reserved price of Rs.5,68,00,000/- (Rupees Five Crore sixty eight lakh only), for which sale notice

was published on 29.11.2003 and auction was scheduled on 29.12.2003. It is submitted that as on 11.06.2012, the said property was valued at Rs.12.00

Crore.

c. It is submitted that the proposed auction was stayed by this Court by order dated 23.12.2003, passed in W.P.(C) 10375/2003, wherein this Court

had held that R-2 was the owner of the property and that title could not have passed by way of an Agreement for Sale. Thus, the fraud that was

committed by transferring the recovery proceedings is that the real facts could not be brought to the notice of the DRT-I, Kolkata that the property of

Hautley Tea Estate, which was earlier proposed to be auctioned at a reserve price of Rs.5.68 Crore was being sold for a song.

d. Collusive litigation:

i. In this regard, it is submitted that everything had come to a standstill with the stay of auction proposed on 29.12.2003. Thereafter, suddenly R-1

started pursuing the recovery proceeding of OA 21/1997, which could be seen from the order dated 06.10.2015, passed by the Recovery Officer,

DRT, Guwahati.

ii. An attempt was made to sell the property worth Rs.12.00 Crore at Rs.35.00 Lakh. At that stage, the then vigilant Recovery Officer, DRT,

Guwahati, passed an order dated 06.10.2015, to the following effect “(1) CDs are directed to file the certified copy of the final orders passed by

the ld. Civil Court in respect of TS 18/1987 and TS 41/1987; (2) CDs are also directed to file on affidavit whether they have filed any review/ appeal

against order dated 17.12.1996 of Hon’ble Gauhati High Court in respect of winding up of the company of CD No.1If the answer is in affirmative,

then CDs shall file certified copy of the orders in respect of such review/ appeal; (3) CD No.1 is directed to explain whether Hautley Tea Estate is a

Company or not. If yes, then file copy of their Memorandum of Association and Article of Association and copy of Registration Certificate; (4) CHB

is directed to file on affidavit stating that no case is pending in respect of the mortgaged/ attached property in any court; (5) Assam Cooperative Apex

Bank having its office at Panbazar, Guwahati-781001 is directed to file a report to this Tribunal stating whether they have filed any appeal/ review in

respect of order dated 12.11.2012 passed by the Hon’ble Gauhati High Court in W.P.No. 10357 of 2003; (6) Shri Lalit Ch. Borah, S/o. Late

Nandeswar Borah, resident of Itachali, Nagaon, Dist. Nagaon, Assam is directed to file report to this Tribunal stating whether he has filed any appeal

in respect of order dated 12.11.2012 passed by the Hon’ble Gauhati High Court in W.P.No. 10352 of 2003 and also directed to file copy of

judgments passed by Ld. Civil Courts in respect of TS 18/1987 and TS 41/1987; (7) The decision of depositing the demand draft in the account of

Tribunal and transferring the same to the CHB will be taken only after deciding the present petition.â€​

iii. These disclosures, being uncomfortable to the R-1, R-2 and the proposed auction purchaser (i.e. R-7), instead of disclosing material facts before

the Recovery Officer, DRT, Guwahati, in collusion approached the learned DRAT and by practicing fraud upon the said learned Tribunal, got the

recovery proceeding transferred to the learned DRT-I, Kolkata.

iv. It is submitted that the learned DRT-I Kolkata, including its Recovery Officer had miserably failed to peruse and appreciate the previous orders

passed by the Recovery Officer, proposing to auction Hautley Tea Estate at Rs.5.68 Crore as well as specific direction to the R-1 and the Petitioner

to disclose material particulars, and that the said orders had attained finality.

v. It is submitted that as the learned DRAT and learned DRT-I had heard R-7, i.e. the auction purchaser, there was no reason not to hear the

Petitioner Bank, which has a huge debts of Rs.15,34,41,787.45 as on 06.07.2015 (with interest upto 23.05.2008) to be recovered, which would be

evident from letter dated 06.07.2015 [Annexure-U of W.P.(C) 1380/17].

vi. It is also submitted that if the sale is allowed to be completed at Rs.75.90 lakh, statutory dues, labour wages, provident fund, huge outstanding dues

of Petitioner Bank, etc. would all be lost because it is quite possible that the auction purchaser shall be absolved of all the liabilities payable by the

previous owners of Hautley Tea Estate.

vii. It is also submitted that although the Sale Certificate was issued on 14.10.2016, the R-7 was keeping idle. It was only when the Petitioner Bank

appointed one Esquire Tea Estate Pvt. Ltd. (R-6) as their Managing Agent on 15.02.2017, the R-7 enforced the Sale Certificate on 16.02.2017 and

took over the Hautley Tea Estate. It is also submitted that as R-5, the erstwhile Managing Agent of the Petitioner had no authority to hand over

possession to R-7, the Petitioner Bank had lodged an FIR and was pursuing their remedy.

viii. It is also stated that the fraud in confirming the sale and in issuing of the “Sale Certificate†is evident from the fact that the sale was made as

per a private agreement, without there being any auction sale. It is submitted that such a sale was fraudulent because if an auction sale was

conducted, then the Recovery Officer would be required to fix the minimum reserve price based on market value of Hautley Tea Estate, which way

back in 2003 was Rs.5.68 Crore. Thus, these road-blocks were overcome by practicing fraud upon the learned DRT-I, Kolkata and by virtue of a

collusive litigation.

e. Justification of possession and/or control over the affairs of Hautley Tea Estate by the Petitioner Bank:

i. In this regard, it is submitted that the Division Bench of this Court in W.P.(C) 1827/2007, W.P.(C) 1249/1009 and FAO 9/2012 had specifically held

that delivery of possession by the mortgagee (i.e. by Petitioner Bank to R-5) was lawful. It is submitted that the said finding establishes the paramount

right of the Petitioner as the mortgagor.

ii. It is submitted that R-2, R-3 and R-4 had all abandoned the Hautley Tea Estate on 15.07.2005. There was huge labour and worker’s wages to

be paid. Therefore, Labour Commissioner was moved by way of Case No. PW 3/2006 and there was a conditional attachment of property of Hautley

Tea Estate described in Schedule-I and Schedule-II of the said petition. Thereafter, on the strength of MoU dated 24.05.2005, between the Petitioner

Bank and R-5, the possession of Hautley Tea Estate was handed over to R-5 as the Managing Agent appointed by the Petitioner Bank. Moreover, on

23.05.2005, envisaging such agreement by the Petitioner, the workers had also entered into an agreement with R-5 to hand over Hautley Tea Estate to

R-5. Thus, the paramount right and authority of the Petitioner Bank over Hautley Tea Estate was accepted by all concerned.

iii. It is submitted that possession of the Petitioner over Hautley Tea Estate as well as delivery of such possession lawfully to R-5 was recognized by

the Division Bench of this Court by virtue of the common judgment and order dated 26.11.2014, passed in W.P.(C) 1827/2007, W.P.(C) 1246/2009

and FAO 9/2012. In the same order, it was also held that the Petitioner Bank was the mortgagee of Hautley Tea Estate. Moreover, it is submitted that

as R-5 was held by this Court to be in lawful possession of Hautley Tea Estate through the Petitioner Bank, this Court had recognized the Agreement

dated 24.05.2008 between the Petitioner Bank and R-5, which is deemed to be a valid, binding and legally enforceable agreement.

iv. It is further submitted that when they had enforced their right and had taken over the possession of the said Hautley Tea Estate after the R-3 and

R-4 had abandoned the said Estate, there was no reason for the Petitioner Bank to pursue their remedy available before the civil courts for

enforcement of the mortgage, or under Bengal Public Demand Recovery Act as well as under SARFAESI Act. Therefore, this was not a case where

there was any failure on part of the Petitioner Bank to pursue their legal remedy because everyone, including the borrowers, (i.e. R-2, R-3 and R-4),

workers, labourers, etc. had all recognized the paramount right of the Petitioner Bank as a mortgagee and/or secured creditor.

v. It is submitted that the Petitioner Bank had an indefeasible right to carry on business under Section 6 of the Banking Regulation Act, 1949.

f. Current valuation of the Hautley Tea Estate:

i. By referring to the interim order dated 16.03.2017 passed by this Court, the learned Senior Counsel for the petitioner has submitted that as per the

direction of this Court, the assets of Hautley Tea Estate was duly valued by a competent and Govt. approved valuer.

ii. In this regard, it is submitted that by said order dated 16.03.2017, the Govt. of Assam, Revenue Department was impleaded as Respondent No.10

(hereinafter referred to as “R-10†for short). Representing the said R-10, one Shri M.P. Sharma, the Secretary to the Govt. of Assam, Revenue

Department by affidavit filed on 16.06.2017 in W.P.(C) 1551/17, had brought on record, two valuation reports of the assets of Hautley Tea Estate as

in the year 2016 and as on 12.05.2017, which was done pursuant to the said order dated 16.03.2017. As per valuation for the year 2016, the market

value of the said Tea Estate was certified to be Rs.5781.13 lakh and the total value of the said property as on 12.05.2017 was certified to be

Rs.6016.44 lakh.

iii. Thus, it is submitted that by such fraudulent and collusive litigation, the Hautley Tea Estate was sold at Sale Certificate amount of Rs.77,13,808/-,

which was only a little over 10% of the value of the property.

g. Thus, by referring to the statements made in both the writ petitions, the learned Senior Counsel for the petitioner had prayed for allowing the writ

petition.

h. It may be mentioned herein that the learned Senior Counsel for the Petitioner had produced the original Sale Deed dated 01.05.1970 for the perusal

of this Court. It was submitted that the said original Sale Deed had been deposited by ATCPL. It is submitted that the Petitioner Bank may be

permitted to file the said document on record. However, at the stage, when the arguments are at a verge of being closed, this Court was not inclined

to accept the said prayer, as it would have prolonged the hearing. However, this Court had taken a judicial note of the said document in original was in

possession with the Petitioner Bank. Hence, the said original document was returned to the learned Senior Counsel for the Petitioner.

i. In support of his argument, the learned Senior Counsel for the petitioner has relied on the following case citations:

i. Radhey Shyam Vs. Chhabi Nath, (2015) 5 SCC 423;

ii. Nirma Industries Ltd. Vs. Securities & Exchange Board of India, (2013) 8 SCC 20;

iii. Eastern Coalfields Ltd. Vs. Kalyan Banerjee, (2008) 3 SCC 456;

iv. Navinchandra N. Majitha Vs. State of Maharashtra, (2000) 7 SCC 640;

v. Jay Laxmi Salt Works Pvt. Ltd. Vs. State of Gujarat, (1994) 4 SCC 1;

vi. Oil & Natural Gas Commission Vs. Utpal Kumar Basu, (1994) 4 SCC 711;

vii. Ramchandra Ganpat Shinde Vs. State of Maharashtra, (1993) 4 SCC 216;

viii. State of Rajasthan Vs. Swaika Properties, (1985) 3 SCC 217;

ix. HPS India (P) Ltd. Vs. Srei International Finance Ltd., 2004 (3) GLT 582.

DISCUSSIONS AND DECISION:

40) Based on the submissions made by the learned Senior Counsel for the R-7, touching upon the maintainability of the writ petitions and on locus

standi of the writ petitioner, the following points of determination arise for decision in these two writ petitions:

Whether the petitioner had been able to show before the Recovery Officer, DRT, Guwahati, as well as before this Court that they had any live

claim against any money purportedly recoverable from the lawful owners of Hautley Tea Estate?

Whether the petitioner Bank has been able to establish that their equitable mortgage existed over Hautley Tea Estate?

Whether the petitioner Bank had a right to participate in the recovery proceedings before the learned DRT or in application filed before the learned

DRAT?

Whether on account of findings on the aforesaid three points of determination, the writ petitions can be said to be not maintainable and whether for

the same reasons, the petitioner would not have a locus standi to maintain the present writ petitions?

POINT OF DETERMINATION NO.2:

41) The Point of Determination No.2 is taken up first. The case projected by the Petitioner Bank is immovable properties of Hautley Tea Estate was

mortgaged with them in the year 1974. If a mortgage is found to be created, then there is a definite transfer of interest in the specific immovable

property by the mortgagor in favour of the mortgagee. Therefore, to understand the meaning of mortgage, the provisions of Section 58(a) of the

Transfer of Property Act, 1882 is extracted below:-

“58.(a) “Mortgageâ€, “mortgagor’, “mortgageeâ€, “mortgage-money†and “mortgage-deed†defined: A mortgage is the

transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan,

an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the

transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the

instrument (if any) by which the transfer is effected is called a mortgage-deed.â€​

42) Thus, from the provisions of Section 58(a) of the Transfer or Property Act, 1882 there appears to exist certain essential ingredients of a valid

mortgage, being “Mortgageâ€, “mortgagor’, “mortgageeâ€, “mortgage-money†and “mortgage-deedâ€. However, if mortgage is

created by deposit of title deeds, then the transaction is covered by the provisions of Section 58(f) of the Transfer of Property Act, 1882 and the

requirement of a “mortgage-deed†is deemed to be waived and the “mortgagee†must show that the “mortgagor†had delivered to a

creditor or his agent documents of title, with the intent to create security thereon. In this regard, the provisions of Section 58(f) of the Transfer of

Property Act, 1882 is extracted below:

“58.(f) Mortgage by deposit of title-deeds-Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and

in any other town which the State Government concerned  may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or

his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-

deeds.â€​

43) The pleadings contained in the writ petition clearly shows that it was projected that by depositing the original sale deed

dated 01.05.1970, ATCPL had created mortgage of the properties of Hautley Tea Estate and availed financial assistance. It is also seen that in

paragraph 5 of the writ petition, it was projected that the Petitioner Bank had asked the ATCPL by its letter dated 01.02.1974 to comply with

necessary formalities. However, no document has been produced by the Petitioner Bank to show that after observing such formalities, ATCPL had

had created the mortgage of Hautley Tea Estate by depositing original title deeds. In this regard, it is seen that the Petitioner Bank has not produced

any document evidencing the creation of an equitable mortgage by deposit of title deeds. In the opinion of this Court, in view the provisions of Section

58(a) and 58(f) of the Transfer or Property Act, 1882 the “mortgagee†is required to demonstrate that the “mortgagor†had delivered to a

creditor or his agent documents of title, with the intent to create security thereon. Thus, without the production of any document evidencing creation of

a lawful and valid equitable mortgage, there is no scope for this court to take cognizance of the intention of the owner of Hautley Tea Estate to create

equitable mortgage over Hautley Tea Estate by deposit of title deeds.

44) The issue of mortgage can also be seen from another angle. It is the admitted case of the Petitioner Bank that in the year 1974, the ATCPL (i.e.

Abhoyjan Tea Co. Pvt. Ltd.) had mortgaged Hautley Tea Estate in favour of the Petitioner to secure a loan. However, the Petitioner has not

impleaded the said ATCPL as a respondent in these writ petitions. It is also seen that it is not the case of the Petitioner Bank that it was not aware of

the sale/transfer the Hautley Tea Estate by ATCPL to R-2, but before that possession of Hautley Tea Estate was delivered by ATCPL to Shew

Prasad Nimodia. In these writ petitions, the further admitted case of the Petitioner Bank is that by executing a registered Agreement for Sale dated

04.01.1982, the said ATCPL had handed over the possession and management of Hautley Tea Estate to Shew Prasad Nimodia at a consideration of

Rs.45.00 lakh, being the value of the garden land, plant and machinery and a further consideration of Rs.45.00 lakh, being the liability toward the

Petitioner Bank as on 01.01.1982.

45) Thereafter, as per the Petitioner Bank, it had granted working finance to Shew Prasad Nimodia, a rank outsider, allegedly for and on account of

Hautley Tea Estate for 1980-83 and 1983-84. The said Shew Prasad Nimodia is also not arrayed as one of the respondents in these two writ petitions.

Thus, by extending loan to Shew Prasad Nimodia, a third party, not only the Petitioner Bank is found to be aware of the fact that physical possession

of Hautley Tea Estate was handed over by the said ATCPL to Shew Prasad Nimodia. Moreover, as the Petitioner Bank has categorically admitted

that it had granted finance to the said Shew Prasad Nimodia, the Petitioner Bank is found to have absolved the said ATCPL, as such, the said ATCPL

had not been impleaded in these writ petitions.

46) It is seen that the recognition of transfer of Hautley Tea Estate by ATCPL by the Petitioner Bank does not end here. From the statements made

in the writ petition, it is apparently clear that the Petitioner Bank is aware of execution and registration of a Sale Deed dated 09.01.1984, executed by

ATCPL in favour of R-2, by virtue of which Hautley Tea Estate was conveyed to R-2 on receipt of sale consideration of Rs.90.00 lakh, which was

inclusive of Rs.45.00 lakh to be paid to the Petitioner Bank towards its liability as on 31.12.1981 and that the sale was made effective from

01.01.1982. It is the admitted case of the Petitioner Bank that it had advanced loan to R-2. However, no document has been produced to show that R-

2 had delivered any title deeds to the Petitioner Bank with an intention to create a valid equitable mortgage over immovable properties of Hautley Tea

Estate.

47) Thereafter, R-2, by an Agreement for Sale dated 26.09.1986, proposed to sell Hautley Tea Estate to (i) R-3 and (ii) R-4 at a sale consideration of

Rs.2.10 crore, inclusive of all liabilities of the Petitioner Bank, provident fund, electricity, staff and labour wages, etc. and in view of the said

agreement, the possession of Hautley Tea Estate was also handed over to R-3 and R-4. It has already been mentioned herein before that in paragraph

9 of W.P.

(C) 1380/17, it is specifically pleaded that “… Although Sri Lalit Chandra Bora liquidated the earlier dues of the Bank, however, the tea estate

continued to enjoy financial assistance from the petitioner bank and for that purpose entire tea crops, including green leaves of the said tea estate are

hypothecated with the bank. Further other properties of the said estate also continued to remain mortgaged with the petitioner bank.†In view of such

categorical admission that R-3 had liquidated its dues, the onus is on the Petitioner Bank to demonstrate the circumstances under which the Petitioner

Bank recognized the existence of R-2, and then R-3 and R-4 to operate the account of Hautley Tea Estate and to avail loans and advances.

48) Thus, in view of the discussions above, and in view of the requirement of Section 58(f) of the Transfer of Property Act, 1882 that a person must

hand over title deeds with the intention to create a security, the Petitioner Bank must show such intention by producing a admissible copy of (i) their

mortgage register maintained in normal course of ordinary business, or (ii) a memorandum of deposit of title deeds, or (iii) take delivery letter by the

person making such deposit to create equitable mortgage by deposit of title deeds. Thus, the prima facie conclusion of this Court is that merely by

holding the Sale Deed dated 01.05.1970, the Petitioner Bank has not been able to demonstrate the creation of an equitable mortgage of the immovable

property of Hautley Tea Estate by deposit of title deeds. Moreover, by its own conduct, the Petitioner Bank not only recognized the existence of a

subsequent Sale Deed dated 09.01.1984, by which ATCPL transferred Hautley Tea Estate to R-2, but also allowed advances on account of Hautley

Tea Estate to (i) Shew Prasad Nimodia, (ii) R-2, and (iii) R-3 and R-4. Thus, by conduct, the Petitioner Bank had absolved the said ATCPL, who is

alleged to have created the initial mortgage by recognizing others as owners of Hautley Tea Estate and by continuing to grant them advance on

account of Hautley Tea Estate even after R-3 had admittedly liquidated the entire outstanding dues of Hautley Tea Estate as on 16.08.2001.

49) Moreover, as per the provisions of Article 62 of the Schedule of Limitation Act, 1963 the prescribed period of limitation to enforce payment of

money secured by a mortgage or otherwise charged upon immovable property is 12 (twelve) years from when the money sued for becomes due.

Admittedly, the Petitioner Bank had instituted TS 15/1985 against ATCPL & 8 others before the Court of Assistant District Judge No.1, Guwahati,

which was decreed. Under the circumstances, the onus to show that even after the said TS 15/1985 was decreed, the right to sue for recovery of

money secured by a mortgage over Hautley Tea Estate still remained open and/or available to them.

50) In the considered opinion of this Court, it would have been a totally different situation, if the Petitioner Bank was not aware of the transfer of

Hautley Tea Estate by ATCPL, perhaps then there could have been possibly a scope for the petitioner Bank to salvage the creation of equitable

mortgage, if any, by virtue of deposit of Sale Deed dated 01.05.1970. It is true that when a property is mortgaged, any sale of such charged and/or

mortgaged property cannot absolve the mortgaged property of the encumbrance under a valid mortgage. But in the present case in hand, not only the

Petitioner Bank had shown their acquiescence to sale of Hautley Tea Estate by ATCPL, but by recognizing the subsequent owners and/or occupiers,

continued to advance loans and advances even after issuing a “no due certificateâ€​ dated 16.08.2001 to R-3 as mentioned herein before.

51) In view of the discussions above, the Point of Determination No.2 is answered in the negative by holding that the petitioner Bank could not

establish the creation of equitable mortgage on the immovable properties of Hautley Tea Estate (i) prior to issuing “no due certificate†dated

16.08.2001, and (ii) after the issuance of such certificate. Moreover, by its own conduct, by recognizing others as owners or occupiers of Hautley Tea

Estate, any semblance of right, which the Petitioner Bank might have, against the “mortgagor†of Hautley Tea Estate, stood absolved by

exonerating the original “mortgagorâ€​, namely, ATCPL.

POINT OF DETERMINATION NO.1:

52) The R-7 in their affidavit- in- opposition filed in W.P.(C) No. 1380/17 had annexed a copy of the “No dues certificate†dated 16.08.2001

[Annexure-IV(Series)]. A perusal of the same shows that the Petitioner Bank had realized from R-3, its entire liability of Rs.1,13,32,217.46 (Rupees

One Crore thirteen lakh thirty two thousand two hundred seventeen and paise forty six), which due from R-2. The Petitioner Bank had unambiguously

certified therein that there was no outstanding balance in the account and that the account was liquidated.

53) It is the admitted case of the petitioner Bank that after liquidation of the said outstanding by virtue of “No dues Certificate†dated 16.08.2001,

it continued to grant loans and advances to R-3 and R-4 as proprietors of Hautley Tea Estate. However, there is no material on record to show what

the status of Hautley Tea Estate is as per records of the Petitioner Bank, i.e. whether it was a Company, a Firm, a proprietorial concern, or a

Association of Persons. It is also not shown on record, how and/or on what basis two individual persons, viz., R-3 and R-4 can become proprietors of

Hautley Tea Estate and/or continue to avail loan and advances for Hautley Tea Estate. This is a relevant question because, as per the own showing of

the Petitioner Bank, the Hautley Tea Estate was sold by ATCPL to R-2. Therefore, unless, there are admissible materials which establishes

otherwise, only the real owner of Hautley Tea Estate could have availed loans and advances for and on behalf of Hautley Tea Estate. Otherwise, the

natural fallout of loan having availed by R-3 and R-4 would be that the immovable property of Hautley Tea Estate cannot be held to be liable for

repayment of such loan and advances availed by any third party for and on behalf of Hautley Tea Estate and if such loans and advances have actually

been granted by the petitioner Bank, their officials have done so at their own risk as to cost and consequences arising therefrom.

54) In view of the discussions above, the Point of Determination No.1 is answered in the negative and against the

petitioner Bank by holding that the Petitioner Bank had failed to demonstrate that they had any live claim against any money purportedly recoverable

from the lawful owners of Hautley Tea Estate, i.e. R-2, as it stood before the Sale Certificate was issued by the Recovery Officer, DRT-I, Kolkata.

Point of determination No.3:

55) At the outset it is seen that the Petitioner Bank had instituted a suit, being TS No. 15/1985 before the learned court of Assistant District Judge No.

1, Guwahati (as it was then). From the copy of judgment of the said suit available on record, it is observed that the said suit had been filed on the

ground that ATCPL and R-2 had both failed to liquidate the dues of the Petitioner Bank. The said suit was allowed by judgment and decree dated

02.07.1986 for a sum of Rs.45.00 lakh. By order dated 02.09.1886, the said learned Court had included interest at the rate of 18% on the decreetal

amount of Rs.45.00 lakh. There is no material to show that the said decree had been executed. Thus, it appears that the execution of the said decree

dated 02.07.1986 as modified by order dated 02.09.1986 had become barred by limitation. Thus, the Petitioner Bank has not been able to demonstrate

that they had any existing or subsisting right against the ATCPL as well as against R-2.

56) The Petitioner Bank has projected that after R-4 and R-4 had liquidated the loan due on account of Hautley Tea Estate on 16.08.2001, the R-3

had continued to avail finance for and on behalf of Hautley Tea Estate. Notwithstanding that the Petitioner Bank has not been able to establish that in

what capacity the said R-3 and R-4 had been permitted to operate the account of Hautley Tea Estate, on a perusal of the copy of the notice dated

09.01.2007, issued to R-3 under Section 13(2) of the SARFAESI Act, 2002 [Annexure-L to W.P.(C) 1380/17], it is found to contain a list of

documents creating securities. However, none of the documents describe therein indicate that any equitable mortgage was created in respect of

Hautley Tea Estate. Rather, the said notice indicates that mortgage was created only in respect of 2B-3K-18L land covered by Dag No. 505, 528, 529

and 530 of Patta No. 190 of Village- Town Nartam (Nagaon), Mouza, Town and District- Nagaon. Thus, the contents of the said SARFAESI notice

dated 19.01.2007 is found to be inconsistent with the case projected by the Petitioner Bank as the said notice prima facie shows that as on 09.01.2007,

i.e. the date of said notice, no equitable mortgage had been created in respect of Hautley Tea Estate, which is located in the district of Golaghat.

57) It is observed that by order dated 27.12.2006, the Assistant Labour Commissioner- cum- Authority under the Payment of Wages Act, 1936,

Golaghat conditionally attached the property described in Schedule-I and II in Case No. P.W.3 of 2006 (A. Tirkay, ACMS, Golaghat Branch & 3

others Vs. Lalit Chandra Borah, Managing Proprietor, Houtley Tea Estate & Anr.). Therefore, at least as on 27.12.2006, the Petitioner Bank was not

in lawful possession of Hautley Tea Estate. It appears that in anticipation of appointment to be given by Petitioner Bank, an interim MoU 23.05.2008

[Annexure-O to W.P.(C) No. 1380/17] had been reached between the workers of Hautley Tea Estate and R-5. Accordingly, the management of the

said Tea Estate was handed over to R-5. Hence, as on 23.05.2008, the Petitioner Bank was not in lawful possession of Hautley Tea Estate. Later on,

by a Deed of Agreement dated 24.05.2008 [Annexure-P to W.P.(C) No. 1380/17], the Petitioner Bank appointed R-5 as the Managing Agent of

Hautley Tea Estate. The Petitioner Bank has not been able to produce any document showing (i) how it became the owner of Hautley Tea Estate so

as to appoint R-5 as the Managing Agent of Hautley Tea Estate, and (ii) how it got the custody of the Hautley Tea Estate. Strangely, although ACMS

had given their no objection to the Petitioner to hand over management to R-5, they had challenged the said action by filing W.P.(C) 1827/2007, had

challenged the action of the Petitioner Bank.

58) This leads to another contentious issue as to whether the observations made by this Court in connection with orders passed in W.P.(C)1827/2007

(Secretary, Assam Chah Mazdoor Sangha Vs. The State of Assam & 8 others), W.P.(C) 1246/2009 (Lalit Ch. Borah Vs. The Assam Co-op Apex

Bank Ltd. & 2 others), FAO 9/2012, (Marudhar Tea Co. Pvt. Ltd. Vs. Lalit Ch. Borah), W.P.(C) 10352/2005 (Lalit Ch. Borah Vs. Union of India &

Ors.), and W.P.(C) 10375/2005 (Assam Co-op Apex bank Ltd. Vs. Union of India & Ors.), would constitute a binding precedent, establishing the

right of the Petitioner Bank. In this connection, on a perusal of the common judgment dated 26.11.2004 by this Court in (i) W.P.(C) 1827/2007, (ii)

W.P.(C) 1246/2009, and (iii) FAO 9/2012, shows that ATCPL, R-1, R-2 and R-7 were not parties in those cases, as such the said decision cannot be

said to have conclusively determined their respective rights and liabilities. However, this Court hastens to clarify that this Court is not making any

comment whatsoever on the merit of the said judgment and order, which has attained finality qua the parties therein.

59) It may be pertinent to mention herein that in paragraph 8 of the said common judgment dated 26.11.2004, it has been referred that the Petitioner

Bank had initiated proceedings under the Bengal Public Demand Recovery Act, 1913 (BDPR Act). However, as possession of Hautley Tea Estate

was admittedly given to R-5 by the ACMS on 23.05.2008, which was prior to the Deed of Agreement dated 24.05.2008 between the Petitioner Bank

and R-5, there is no material on record to show how the Petitioner Bank came to allegedly possess Hautley Tea Estate.

60) In the proceedings before the Recovery Officer, DRT, the Petitioner Bank had submitted petition No. 272, praying for adjournment on the ground

that they would file a petition before the Presiding Officer, DRT, Guwahati for impleadment as party as the attached property was mortgaged to them.

The said petition was rejected by order dated 03.11.2003 on the ground that after final order was passed and recovery certificate was issued such

prayer could not be allowed under Section 19(2) of RDDBFI Act. As per the said order dated 03.11.2003, the Recovery Officer, DRT, Guwahati had

directed the Petitioner Bank to disclose

(i) whether the movable and immovable properties of Hautley Tea Estate was mortgaged to Petitioner Bank after liquidation of earlier liabilities as per

Certificate dated 16.08.2000, (ii) if so, who created the mortgage, for what amount and when was it created, and (iii) In support of the above, to

furnish a certified copy of the letter of intent be produced on 11.11.2003 with report. The said order had attained finality. Nonetheless, it appears that

the said order dated 03.11.2003 has not yet been complied with. As per order dated 23.11.2003 passed by the Recovery Officer [Annexure-G of

W.P.(C) 1380/17], the Recovery Officer, DRT, Guwahati, had recorded a clear finding that an amount of Rs.10,94,80,000/- was taken by R-3 by

executing hypothecation deeds and promissory notes though he was legally not the owner of Hautley Tea Estate. It is further noted in the said order

that the Petitioner Bank had failed to submit any mortgage deed. Hence, the Recovery Officer, DRT, Guwahati had further held that he was not

convinced to accept that the properties of Hautley Tea Estate was still mortgaged to the Petitioner Bank. It appears that the Petitioner bank had

allowed the said order dated 23.11.2003 to attain finality.

61) Thus, it appears that the Petitioner Bank had shown by filing petition No. 272 dated 03.11.2003, that it was aware that in order to agitate their right

against Hautley Tea Estate, it was required for them to implead themselves as a party. Nonetheless, there is no material on record to show that the

lawful owners of Hautley Tea Estate had created any mortgage after issuance of NOC dated 16.08.2001 by the Petitioner Bank, admitting that their

entire loan was liquidated. Under such circumstances, when the recovery process was being delayed, this Court cannot find fault with the concerned

parties, i.e. R-1, R-2 and R-7 for approaching the learned DRAT for transfer or recovery proceedings of OA 21/1997 to Kolkata.

62) Admittedly the Petitioner Bank is aware that a “Sale Certificate†dated 14.06.2016 had been issued, which has created some right in favour

of R-7. The legal owner of the said property is R-2. If anyone is aggrieved by sale of properties alleged to be worth Rs.60.00 Crore to R-7 for a mere

consideration of Rs.77.00 Lakh by the Recovery Officer, DRT-I, Kolkata, the only party who can be perceived to be aggrieved would only be R-2,

being the lawful owners of the property. It is no one’s case that R-2 was not the debtor of R-1 or that R-1 was not entitled to get the Hautley Tea

Estate sold through the recovery proceedings initiated by DRT, Guwahati, in OA 21/1997.

63) Therefore, notwithstanding that the recovery proceedings had culminated before Recovery Officer, DRT-I, Kolkata, this Court is of the unhesitant

opinion that â€

a. The Petitioner Bank has not been able to establish that R-2 was their secured debtor;

b. The Petitioner Bank has not been able to establish that it was holding any charge over the immovable property of Hautley Tea Estate either prior to

16.08.2001 or after 16.08.2001, i.e. after the Petitioner had issued their “no due certifictateâ€​;

c. The Petitioner Bank had allowed the order dated 21.11.2003 passed by the Recovery Officer, Debts Recovery Tribunal, Guwahati to attain finality,

by which the Recovery Officer, DRT, Guwahati did not accept that the properties of Hautley Tea Estate was still under mortgage to the Petitioner

Bank.

64) Thus, in the opinion of this Court, the petitioner Bank, having lost its right to intervene in the recovery proceedings in OA 21/1997, by order dated

23.11.2003, any appearance made thereafter by the petitioner Bank in such recovery proceeding cannot give rise to any right to the petitioner Bank to

contest such recovery proceeding. Therefore, the transfer of recovery proceeding from DRT, Guwahati, to DRT-I, Kolkata has not caused any

prejudice to the Petitioner Company, as it had no alleged dues to be recovered from R-2, who was the lawful title holder of the Hautley Tea Estate.

65) Thus, from the facts as narrated above, it appears that highly disputed issues of facts has been raised in these two writ petitions, requiring

pleadings as well as evidence from all concerned parties to decide them. Therefore, it would be open for the Petitioner Company to avail such

appropriate remedy, as may be available to them against its purported borrowers, in accordance with law.

66) The allegation of sale of Hautley Tea Estate having an estimated net worth of Rs.60.00 Crore at a paltry sum of approximately Rs.75.90 lakh

cannot have any bearing in the present case for two simple reason. Firstly, assuming that Hautley Tea Estate was sold for any amount higher than the

dues receivable by R-1, the said R-1 could not have appropriated any money in excess of its own dues. Secondly, the Petitioner Bank has not been

able to discharge the onus of showing that assuming but not admitting that if Hautley Tea Estate was not sold and/or sold at a sum of Rs.60.00 Crore,

they would be able to realize their dues from R-2. Therefore, in the considered opinion of this Court, no prima facie prejudice appears be caused to the

Petitioner Bank by such sale of Hautley Tea Estate, because the Petitioner Bank had not been able to demonstrate that any part of its alleged dues

were realizable from R-2. Moreover, R-2, being the owner of Hautley Tea Estate has consented to such sale of Hautley Tea Estate to R-7, as such, it

is deemed that they were aware of the worth of Hautley Tea Estate. Therefore, in the considered opinion of this Court, no ground is found to interfere

with the order dated 21.07.2016 passed by the learned DRAT, Kolkata in Application No. 101/2016/ 120/55 by which O.A. No. 21/1997, pending

before the Recovery Officer, DRT, Guwahati had been transferred to the Recovery Officer, DRT-I, Kolkata, or any other subsequent orders passed

by the learned Debts Recovery Tribunal-I, Kolkata including the issuance of Sale Certificate. There appears to be no reason to nullify the Sale

Certificate because R-2, the owner of Hautley Tea Estate was a party in the proceedings of OA 21/1997, subsequently transferred to DRT-I,

Kolkata.

67) Moreover, the application before DRAT or proceeding before DRT-I cannot be said to be collusive. The entertaining of objection of the Petitioner

by the Recovery Officer since the year 2003, without the petitioner’s being able to demonstrate the existence of their right was, inter-alia,

projected and therefore, the order of transfer of recovery proceedings of OA 21/1997 cannot be faulted with. The RDDBFI Act provides for power

of the learned DRAT to transfer any proceedings from one DRT to another.

68) In view of the discussions above, the Point of Determination No.3 is answered in the negative and against by the Petitioner Bank by holding that

the Petitioner Bank has not been able to demonstrate the existence of their right to participate in the recovery proceedings before the Recovery

Officer, DRT, Guwahati. Consequently, it is held that the Petitioner Bank had no right to appear in the proceedings before DRAT in Application No.

101/2016/ 120/55 by which O.A. No. 21/1997, pending before the Recovery Officer, DRT, Guwahati had been transferred to the Recovery Officer,

DRT-I, Kolkata. Consequently, the Petitioner Bank had no right to participate in the recovery proceedings before the DRT-I, Kolkata.

Point of Determination No.4:

69) On account of the findings on the Points of Determination No.1, 2 and 3, the Point of Determination No.4 is answered in the negative and against

the Petitioner Bank by holding that both the writ petitions are not maintainable and for the same reasons, the petitioner Bank are found to have no

locus standi to maintain the present writ petitions.

70) Discussions on cases cited by the learned Senior Counsels/ Counsels for the appearing parties:

a. The learned Senior Counsel for the R-7 had placed reliance on the case of (i) K. Anbazhagan Vs. Superintendent of Police & Ors., (2004) 3 SCC

767; (ii) K. Anbazhagan Vs. State of Karnataka, (2015) 6 SCC 158; and (iii) State of Karnataka Vs. J. Jayalalitha & Ors., (2017) 6 SCC 263 to

project that once the case stood transferred to DRT-I, Kolkata, by orders passed by the learned DRAT, Kolkata, the orders passed by the DRT-I,

Kolkata can only be challenged before the jurisdictional High Court at Kolkata and the writ petitions before this Court was not maintainable. In the

opinion of this Court, a perusal of the above cited cases shows that for the purpose of ensuring a fair trial, the Hon’ble Supreme Court had

transferred the original criminal prosecution cases against the accused from State of Tamil Nadu to State of Karnataka. Therefore, as the order

passed for transferring those cases had attained finality, only the High Court having judicature in the State of Karnataka was held to have jurisdiction

for maintaining appeals. However, in the present cases in hand, the Petitioner Bank had challenged the order passed by the learned DRAT by which

the recovery proceeding was transferred to DRT-I, Kolkata and under the circumstances the consequential challenge to the orders passed by DRT-I,

Kolkata by the Petitioner Bank before this Court is held to be maintainable as the Petitioner bank had not conceded to the jurisdiction outside this

Court. Thus, the ratio of the cases cited by the learned Senior Counsel for R-7 is not found to be applicable. However, it is clarified that with the

upholding of the order of transfer as passed by the learned DRAT, the Petitioner Bank, if so advised, can maintain their challenge to the orders passed

by the learned DRT-I, Kolkata only before the jurisdictional High Court.

b. Relying on the case of (i) Oil & Natural Gas Commission Vs. Utpal Kumar Basu & Ors., (1994) 4 SCC 711, (ii) HPS India (P) Ltd. Vs. SREI

International Finance Ltd. & Anr., 2004 (3) GLT 582, (iii) Eastern Coalfields & Ors. Vs. Kalyan Banerjee, (2008) 3 SCC 456, (iv) State of Rajasthan

& Ors. Vs. M/s. Swaika Properties & Anr., and (v) Navinchandra Majithia Vs. State of Maharashtra, (2000) 7 SCC 640, it is canvassed by the

learned Standing Counsel for the Petitioner Bank that as no cause of action of the recovery proceeding arose at Kolkata, as such, the transfer of the

proceedings of OA 21/1997 to Kolkata, if allowed to stand, would mean granting of jurisdiction to DRT-I, Kolkata, when it has none. In this

connection, it is not in dispute that the RDDBFI Act contains a specific provision for transfer of proceeding from one Tribunal to another. If any

proceeding is transferred by exercise of such power, it is always a case where jurisdiction gets conferred with such an order of transfer by the

competent appellate tribunal. However, as it has been held that the Petitioner could not demonstrate its right against Hautley Tea Estate, the order of

transfer of proceeding has not caused any perceivable prejudice. On facts, it is seen that in the case of Utpal Kumar Basu (supra), he was a resident

of Calcutta. He read in newspaper that tenders were invited at Delhi for contract at Gujarat, but he had filed the writ petition before High Court at

Calcutta and under the said facts, it was held that there was no cause of action to entertain a writ petition at Kolkata, which is not so in the present

case. The case of HPS India (supra) is a case under NI Act. The cheque was banked at Kolkata and notice under Sec.138 of NI Act was issued

from Kolkata, but the bank of the account holder was at Sivasagar, as such, it was held that writ petition to challenge the jurisdiction was maintainable

at Guwahati, which is not the present case in hand. In the case of Kalyan Banerjee (supra), the service of employee was terminated outside territorial

jurisdiction of West Bengal by his appointing authority in the State of Jharkhand. Hence, it was held that High Court at Kolkata had no jurisdiction,

which is not the case in hand. Similarly, in the case of M/s. Swaika Properties (supra), acquisition process was initiated at Rajasthan. Hence, it was

held that High Court at Kolkata had no jurisdiction, which is not the case in hand. Similarly, in the case of Navinchandra Majithia (supra), the cause of

action entirely arose in Mumbai regarding transfer of shares. Therefore, it was held that Mumbai High Court had jurisdiction to entertain writ petition

that Courts at Meghalaya had no jurisdiction to try complaint case, which is not the facts of the present case. Thus, the present case is distinguishable

on facts of all the five cited cases.

c. The learned Senior Counsel for the Petitioner Bank had relied on the case of Harbanslal Sahnia & Anr. Vs. Indian Oil Corpn. Ltd. & ors., (2003) 2

SCC 107 to canvass the point that despite alternative remedy being available, the Petitioner may not be relegated to any other Court/ Tribunal or

Forum. In this regard, it is observed that in the said cited case, the dealership of the Petitioner was terminated on irrelevant and non-existent clauses,

which is not the case herein. In the present cases, highly disputed questions have been raised, for which the Petitioner must be directed to approach

the appropriate Court/ Tribunal or Forum to establish their claim, if still live and for a decision as to who was the debtor of the Petitioner Bank. Hence,

the cited case is distinguishable on facts.

d. The learned Senior Counsel for the Petitioner Bank had relied on the case of Whirlpool Corpn. Vs. Registrar of Trade Marks, Mumbai & ors.,

(1998) 8 SCC 1 to canvass the point that writ petition under Article 226 was maintainable not only for issuing writs of habeas corpus, mandamus,

prohibition, quo warranto and certiorari, but for “any other reasonâ€, because in these cases, there was a violation of principles of natural justice. In

the present case, as the Petitioner could not demonstrate its live claim against R-2, the owner of Hautley Tea Estate, it is not open for this court to

entertain a writ petition for deciding the issue, which has attained finality by way of order dated 21.11.2003 in OA 21/1997 by the Recovery Officer,

DRT, Guwahati.

e. The learned Senior Counsel for the Petitioner Bank had relied on the case of (i) Nagubai Ammal & Ors. Vs. B. Shama Rao & ors., AIR 1956 SC

593, (ii) S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs. & Ors., (1994) 1 SCC 1 (iii) Ramchandra Ganpat Shinde & Anr.

Vs. State of Maharashtra, (1993) 4 SCC 216, (iv) Dnyandeo Sabaji Naik & Anr. Vs. Pradanya Prakash Khadekar & Ors., (2017) 5 SCC 496, to

canvass the point that the litigation carried to the learned DRAT and consequent proceeding before DRT-I, Kolkata was collusive and fraudulent,

which ought to be interfered with. In this regard, this Court has already held that the Petitioner had no right to object to the recovery proceeding

initiated by R-1. Therefore, merely because the Petitioner did not get any opportunity to place its case before the learned DRAT or before DRT-I,

Kolkata, cannot make the said litigation collusive or fraudulent because, the Recovery Officer, DRT, Guwahati, by the order dated 23.11.2003,

appears to have sealed the fate of the Petitioner before DRT. Therefore, the facts of the cited cases are found to be distinguishable from the facts of

the present case.

f. By referring to the case of Nirma Industries Ltd. Vs. Securities & Exchange Board of India, (2013) 8 SCC 20, it is submitted by the learned Senior

Counsel for the petitioner that it is well settled that hearing becomes essential if its denial results in adverse civil effects. However, in the present case,

as the petitioner bank could not demonstrate its live claim against R-2, its claim was not entertained by order dated 23.11.2003 by the Recovery

Officer, as such, the issue being settled, there was no requirement to hear the Petitioner on the same point again. Hence, on facts the present case is

found distinguishable from the facts involved in case of Nirma Industries Ltd. (supra).

g. Referring to the case of Radhey Shyam Vs. Chhabi Nath, (2015) 5 SCC 423, it is submitted that writ against the order passed by the DRAT and

DRT-I, Kolkata was maintainable. There is no dispute that the said legal proposition is a trite law. However, firstly, the provisions of RDDBFI Act

provides for appeal against every order, in these writ petitions, no case is made out to exempt the Petitioner to avail the alternative remedy as provided

under the said Act because highly disputed issues has been raised and the same must be best left to be tried before competent court/ forum/ tribunal

and secondly, this Court was not satisfied with the right of the Petitioner Bank to interfere in recovery proceeding initiated by R-1 before DRT.

Hence, the ratio laid down in Radhey Shyam (supra) does not appear to help the Petitioner.

h. The learned Counsel for the R-1 has also referred to various case citations as narrated herein before. As this Court is not conclusively deciding

whether the claim of the Petitioner Bank was barred by limitation or whether the Petitioner had a judicially enforceable right, for which liberty has

been granted to the petitioner to approach competent Court/ Forum/ Tribunal, as such, the cited cases are not discussed as such discussions may

irreparably prejudice one side. In this regard, this court has merely relied on the order dated 23.11.2003 passed by the Recovery Officer, DRT,

Guwahati in OA 21/1997 and having prima facie seen that the Recovery Officer had made observations against the Petitioner that this Court, for

reasons discussed hereinbefore, had not found any right of the Petitioner Bank to be agitated in recovery proceedings initiated by R-1 as the Petitioner

could not demonstrate that it still had a live claim against Abhoyjan Tea Co. Pvt. Ltd. (ATCPL) and Nimodia Plantation & Industries Ltd. (R-2) after

the Petitioner bank had issued “no objection certificateâ€​ dated 16.08.2001 in favour of Sri Lalit Ch. Borah (R-3).

71) Accordingly, both the writ petitions stand dismissed on the point of maintainability and lack of locus standi of the

Petitioner. 72) The summary of this order are as follows:-

a. The Point of Determination No.1 is answered in the negative and against the petitioner Bank by holding that the Petitioner had failed to demonstrate

that they had any live claim against any money purportedly recoverable from the lawful owners of Hautley Tea Estate, (R-2) i.e. Nimodia Plantation

& Industries Pvt. Ltd., as it stood before the Sale Certificate was issued by the Recovery Officer, Debts Recovery Tribunal-I, Kolkata.

b. The Point of Determination No.2 is answered in the negative by holding that the Petitioner Bank could not establish the creation of equitable

mortgage on the immovable properties of Hautley Tea Estate either prior to 16.08.2001 and/or after 16.08.2001, when the Petitioner Bank had issued

“No due certificate†favouring R-3. Moreover, by its own conduct, by recognizing others as owners of Hautley Tea Estate, any semblance of

right, which the Petitioner Bank might have, against the “mortgagor†of Hautley Tea Estate, stood absolved by exonerating the “mortgagorâ€,

namely, ATCPL (Abhoyjan Tea Co. Pvt. Ltd.). Moreover, upon holding a decree passed in TS 15/1985 in their favour, the right of the Petitioner Bank

to enforce the alleged mortgage over Hautley Tea Estate is prima facie found to be barred by Article 62 of the Schedule to the Limitation Act, 1963.

c. The Point of Determination No.3 is answered in the negative and against by the Petitioner Bank by holding that the Petitioner Bank has not been

able to demonstrate the existence of their right to participate in the recovery proceedings before the Recovery Officer, Debts Recovery Tribunal,

Guwahati. Consequently, it is held that the Petitioner Bank had no right to appear in the proceedings before Debts Recovery Appellate Tribunal,

Kolkata in Application No. 101/2016/120/ 55 by which O.A. No. 21/1997, pending before the Recovery Officer, Debts Recovery Tribunal, Guwahati

had been transferred to the Recovery Officer, Debts Recovery Tribunal-I, Kolkata. Consequently, it is held that the Petitioner Bank had no right to

participate in the recovery proceedings before the Debts Recovery Tribunal-I, Kolkata.

d. On account of the findings on the Points of Determination No.1, 2 and 3, the Point of Determination No.4 is answered in the negative and against

the Petitioner Bank by holding that both the writ petitions are not maintainable and for the same reasons, the petitioner Bank are found to have no

locus standi to maintain the present writ petitions.

e. As a result, both the writ petitions stand dismissed on the point of maintainability and lack of locus standi of the Petitioner.

73) A Recovery Certificate can be challenged in the manner as prescribed under the RDDBFI Act and, as such, the petitioner Bank has appropriate,

efficacious and alternative remedy available to them under the said Act. Thus, while this Court is not inclined to entertain this writ petition, it is

provided that the petitioner Bank may avail such appropriate, efficacious and alternative remedy available to them, in accordance with law. It is

provided that if the Petitioner approaches the competent forum/ court for redressal of its grievances within a outer limit of 60 days from today, the said

forum/ court shall take into consideration the time taken by the petitioner Bank for pursuing their remedy before this Court, having filed the W.P.(C)

No. 1380/17 on 04.03.2017.

74) In the event, the Petitioner Bank avails their alternative remedy, then the observations made herein shall not influence the said competent Forum/

Tribunal while hearing the matter on merit, because these observations are made for the limited purpose of deciding these two writ petitions on

preliminary issues as indicated above.

75) The parties are left to bear their own cost.