IMPORTANT POINT
Criminal proceedings cannot be initiated to challenge actions taken under the SARFAESI Act, as it undermines the exclusive jurisdiction of the Debt Recovery Tribunal.

JUDGMENT :

Petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, challenging the First Information Report lodged against them on 22.7.2023, registered as Case Crime No. 611 of 2023, under Sections 420, 120-B of IPC and Section 82 of Registration Act, 1908, Police Station - Kavi Nagar, District - Ghaziabad. It is urged that the FIR is maliciously instituted in respect of a civil dispute and is thus an abuse of the process of law. It is also urged that the first informant has lodged the FIR on behalf of the borrower company, which undertook loan and defaulted in its repayment, on account of which proceedings were initiated in accordance with the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act'). Borrower company since has failed to seek any protection before the competent forum, in respect of coercive proceedings under the SARFAESI Act, it has lodged the impugned FIR with the intent to pressurize the finance company as well as auction purchaser to withdraw lawful actions initiated against the borrower/defaulter. Prayer accordingly is made to quash the aforesaid FIR.

2. We have heard Sri Gopal S. Chaturvedi and Sri Siddharth Agarwal (through VC), learned Senior Advocate assisted by Sri Dhruv Kapur, Sri Debashish Chauhan, Sri Varad Nath, Sri Rajan Kohli, Sri Divya Lamba, Sri Maharshi Kaler and Sri Chiranjivi Sharma (through VC), Advocates for the petitioners in Writ Petition No. 11838 of 2023; Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Raghav Dwivedi, Advocate for the petitioner in Writ Petition No. 11837 of 2023 and Sri Syed Imran Ibrahim, learned counsel for the first informant/respondent No. 3 and Sri J.K. Upadhya and Sri Pankaj Kumar, learned AGA for the State and perused the materials on record.

3. The writ petition was entertained and despite the matter being deferred on different occasions no counter-affidavit has been filed in the matter. When the matter was taken last on 14th March, 2024, following orders were passed :

''Learned State Counsel as well as Sri Syed Imran Ibrahim, learned counsel appearing for the private respondents pray for and are allowed three weeks and no more time to file counter-affidavit. Rejoinder-affidavit may be filed within one week thereafter.

List this case on 15.4.2024.''

4. Though a stop order was passed granting last opportunity to the informant and the State to file a counter-affidavit the respondents have not chosen to file any counter-affidavit in the matter so far. Since opportunity to file counter-affidavit has not been availed, we proceed with the hearing of the matter treating the averments made in the writ petition to be correct by applying the doctrine of non-traverse.

5. The first informant i.e. respondent No. 3 claims to be a resident of District Ghaziabad and authorized representative of M/s. Shipra Hotel Private Limited, a company registered under the Companies Act. Allegation in the First Information Report is that Plot No. 9, Ahinsakhand, Indirapuram, District Ghaziabad is owned by M/s. Shipra Hotel Private Limited on which a Shipra Mall was constructed, which has been fraudulently and unauthorizedly transferred to the owners of M/s. Himri Estate Pvt. Ltd. namely, Sumit Kumar Narwar through its authorized representative Rajeev Goel, by Smt. Reena Bagga, authorized representative of M/s. India Bulls Housing Finance Limited on 12.5.2023 by way of a registered transfer deed for a consideration of Rs. 551 crores, although its value is Rs. 2000 crores so as to cause financial loss to the U.P. Government. It is also alleged that Sumit Kumar Narwar by exercising undue influence and extending threats has got the agreement entered into between Shipra Mall and Shipra Estate and other companies cancell