# M/s Shree Bhoomi Food Beverages Pvt. Ltd v. Debts Recovery Appellate Tribunal & Ors

- **Citation:** (2023) 5 ILRA 756
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-31
- **Case number:** Writ-C No. 26184 of 2020
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-shree-bhoomi-food-beverages-pvt-ltd-v-debts-recovery-appellate-tribunal-ors-50283
- **Pages:** 8

## Headnote

Civil Law - SAERFAESI ACT-Possession
memo-Bank
initiated
proceedings
under
SARFAESI Act and mortgaged property for
auction-auction materialized- Petitioner-auction
purchaser-deposited complete sale price and
sale certificate was issued to auction purchaserPetitioner-sale in favour of Petitioner was set
aside-no reason for bank to handover the
movable assets to Petitioner-no inventory filed
in support of handing over movable propertyreferred document as possession memo -not
signed by any officer of bank, bank seal absent -
cannot be considered as legal documents for
handing
over
possession
of
property
to
petitioner.

W.P. allowed. (E-9)

## Text

756 INDIAN LAW REPORTS ALLAHABAD SERIES

93. Following the law laid down in
the
aforesaid
authorities
and
having
considered the material on record, this
Court is of the considered view that once
the Tribunal found termination of the
services of the petitioner as contrary to the
provisions of law, relief only in the form of
compensation etc would be unjust and the
Labour
Court
should
have
directed
reinstatement of the petitioner in service
with full or 50% back-wages. The Court
does not find any cogent reasoning in the
order of the Labour Court in so far as the
denial of relief of reinstatement or backwages is concerned.

94. In view of the above, the writ
petition succeeds and is allowed. The
impugned
award
dated
20.07.2015,
published on 02.01.2016, passed by the
Presiding Officer, Labour Court (5), U.P.,
Meerut (respondent no.1) in Adjudication
Case No.18 of 2002 (M/s Jagran Prakashan
Ltd.
Vs.
Umesh
Kumar)
is
hereby
modified and it is directed that the
petitioner
(Umesh
Kumar)
shall
be
forthwith reinstated in his services. He shall
also be entitled for back-wages to the
extent of 50% from the date of his
termination.
All
other
consequential
benefits of service are also awarded in
favour of the petitioner (Umesh Kumar)
which shall be released in accordance with
law
by
the
respondent-establishment
without any delay.
95. Since the amount under the award was
directed to be deposited under the interim
order dared 20.05.2016 passed in Writ-C
No.22872 of 2016 with a further direction
that it shall be invested in a fixed deposit
with a nationalized bank, it is hereby
directed that on moving of an application
by the workman (Umesh Kumar) before the
Tribunal below, the Tribunal and the
concerned bank shall facilitate release of
the amount deposited in the nationalized
bank
through
proper
course
to
the
petitioner (workman) not later than two
months from the date a certified copy of
this
order
is
produced
along
with
appropriate application. The said amount
shall be adjusted towards financial benefits
conferred upon the petitioner (workman)
under this judgment.

End Result

Writ-C No.23241 of 2016 (M/s Bureau
Chief Rastriya Sahara and another Vs.
Labour Commissioner U.P. and 2 others) is
allowed; Writ-C No.23786 of 2016 (M/s
Bureau Chief Rastriya Sahara and another
Vs. Labour Commissioner and 2 others) is
allowed; Writ-C No.22872 of 2016 (M/S
Jagran Prakashan Ltd. Vs. Presiding
Officer, Industrial Tribunal and another) is
dismissed; and Writ-C No.27687 of 2016
(Umesh Kumar Vs. The Presiding Officer,
Industrial Tribunal and another) is allowed.
----------
(2023) 5 ILRA 756
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-C No. 26184 of 2020

M/s Shree Bhoomi Food Beverages Pvt.
Ltd. ...Petitioner
Versus
Debts Recovery Appellate Tribunal & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Gyan Prakash Srivastava, Sri Shashi
Nandan (Sr. Advocate)

Counsel for the Respondents:
5 All. M/s Shree Bhoomi Food Beverages Pvt. Ltd. Vs. Debts Recovery Appellate Tribunal & Ors. 757
Sri Sanjai Singh, Sri Krishna Mohan
Asthana, Ms. Deepika Tiwari, Sri Anjani
Kumar Raghuvanshi

Civil Law - SAERFAESI ACT-Possession
memo-Bank
initiated
proceedings
under
SARFAESI Act and mortgaged property for
auction-auction materialized- Petitioner-auction
purchaser-deposited complete sale price and
sale certificate was issued to auction purchaserPetitioner-sale in favour of Petitioner was set
aside-no reason for bank to handover the
movable assets to Petitioner-no inventory filed
in support of handing over movable propertyreferred document as possession memo -not
signed by any officer of bank, bank seal absent -
cannot be considered as legal documents for
handing
over
possession
of
property
to
petitioner.

W.P. allowed. (E-9)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

Facts :-

1. Punjab National Bank (respondent
no.3 bank) has granted certain credit
facilities to M/s Shamli Papers Mill Ltd.
(respondent
no.5/borrower
company),
however, it defaulted in payment.

2. The Bank accordingly initiated
proceedings
under
the
provisions
of
Securitization
and
Reconstruction
of
Financial Assets and Enforcement of
Security Interest Act, 2002 (for short
"SARFAESI") and mortgaged property was
put for auction. At this stage, the borrower
company filed a Securitization Application
(S.A.) No. 160 of 2010 before Debt
Recovery Tribunal at Lucknow (for short
"DRT").

3. The DRT passed an interim order
dated 19.07.2011, whereby the bank was
allowed to proceed further for auction but
restrained the bank not to confirm the sale
till further order.

4. First sale notice was not
materialized, therefore, bank issued fresh
sale notice and ultimately auction was
materialized on 17.02.2014. Petitioner
(auction purchaser) deposited complete sale
price and sale certificate was also issued on
03.03.2014 to auction purchaser.

5. Petitioner (auction purchaser) filed
an application before DRT for impleadment
and clarification of interim order dated
19.07.2011 passed by DRT.

6. On above referred application, the
DRT passed an order dated 08.05.2014
whereby application was allowed and held
that the auction dated 17.02.2014 to be
illegal and quashed it and the bank was
directed to refund the amount received
from petitioner (auction purchaser) along
with interest. Relevant part of order is
mentioned hereinafter :-

"I have heard rival submissions
and perused the record.

It reveals from the record that
restrain order dated 19.07.11 was passed by
my predecessor was with specific direction
that the "the bank to proceed as per law but
do not confirm the sale till further orders"
and the said order was not vacated till date
by this Tribunal. The Contention raised by
the Ld. Counsel for the applicant that since
no bid was received, therefore, auction was
not materialized, thus the order dated
19.07.11 has no effect is not acceptable. A
formal declaration of this Tribunal was
necessary before proceeding further. The
second limb of argument of the respondentbank is that the order dated 19.07.2011 was
for the sale notice dated 16.6.11 which
758 INDIAN LAW REPORTS ALLAHABAD SERIES
pertains to auction sale of the factory, land
and building only and the plant and
machinery were not part of the said
auction. Therefore, in any case the said
restrain order is not applicable for the plant
and machinery. The said contention of the
respondent Bank is not sustainable as
during the fourth impugned auction, the
factory land and building were also put for
auction along with plant and machinery,
therefore, I do not find merit in the
contention of the Ld. Counsel for the
respondent- Bank and I am of the view that
since without vacation of the restrain order
the respondent-Bank proceeded further and
sold the plant and machinery in the auction,
the said act amounts disobedience of the
interim order of this Tribunal, therefore, the
Judgment of the Hon'ble High Court of
judicature at Allahabad in case of Savitri
Devi (supra) is rightly applicable in the
present matter. Their Lordship in the said
judgment has categorically held that :-

"9. Admittedly,... it is settled
regal proposition that sale deeds so
executed are a nullity as having been
executed in disobedience of the interim
order of the Court. In Mulraj V. Murti
Raghunathji Maharaj, AIR 1967 SC 1386
the Hon'ble Supreme Court considered the
effect of action taken subsequent to passing
of an interim order in its disobedience and
held that any action taken in disobedience
of the order passed by the Court would be
legal subsequent action would be nullity.

10.
Similar
view
has
been
reiterated in Surjit Singh and others v
Harbans Singh and others, 1995 (6) SSC
50 1995 SCFBRC $30, Govt. of A.P.
Gudepu Salic and others, 200 (4) SSC 625,
Hansraj Tirathram v. The Administrator,
Municipality Jammu, AIR 1963 Kerala 18.

11. Therefore, there is no doubt
that the alleged sale deeds are nullity
meaning thereby no nest, unenforceable
and in executable and deserve to be
ignored."

Therefore, in the light of abovementioned facts and legal proposition the
clarification application is hereby allowed
and since the auction dated 17.02.2014 is
illegal and all subsequent action of the
respondent-Bank is nullity, hence, the
auction
is
hereby
quashed
and
the
respondent-bank is hereby directed to
refund the amount received from the
auction purchaser along with interest
@11% from the date of deposit of full
amount of the auction.

Applicant to take steps before the
Registrar for Incorporation of auction
purchaser in the array of parties before the
Registrar by 15.5.14.

List on 8.7.14 for final hearing."

(emphasis supplied)

7. The above referred order dated
08.05.2014 was challenged by the bank
before Debts Recovery Appellate Tribunal,
Allahabad (for short "DRAT") by filing an
Appeal No. R-65/2014.

8.

Meanwhile,
Securitization
application filed by borrower was allowed
to be withdrawn by order dated 25.06.2014.
The order dated 25.06.2014 is mentioned
hereinafter :-

"Ld. Counsel for the applicant
submits that he has moved an application
dated 7.6.14 for withdrawal of the SA.

At this stage Ld Counsel for the
auction purchaser vehementally opposed
the withdrawal of the SA stating that
respondent Bank has not refunded back his
money till date.

In reply, Ld Counsel for the
respondent-Bank submits that possession of
the factory premises was given to the
auction purchaser for a period of one month
5 All. M/s Shree Bhoomi Food Beverages Pvt. Ltd. Vs. Debts Recovery Appellate Tribunal & Ors. 759
to remove the movable assets which has
already been removed by him. Therefore,
he submits that auction purchaser has no
ground to object in the matter. He further
submits that he has no objection on
withdrawal of the S.A.

In the light of submission made
by the parties as well as application for
withdrawal of the case available on record,
the SA is dismissed as withdrawn.

However, the respondent-Bank is
hereby directed to ensure the compliance of
order dated 8.5.14 of this Tribunal."

(emphasis supplied)

9. Subsequently, the appeal filed by
the bank (against order of DRT quashing
auction) was allowed by DRAT by an order
dated 23.12.2014 and impugned order
dated 08.05.2014 and 25.06.2014 therein
was set aside and liberty was granted to
auction purchaser to challenge auction
proceedings. Impleadment application filed
by auction purchaser/petitioner was also
rejected vide order dated 21.01.2015.

10. Auction purchaser/petitioner filed
a Writ Petition No. 807 of 2015 before this
Court and the same was disposed of by
order dated 30.11.2018. Relevant part of
order is quoted hereinbelow -:

"The Court further found that the
only controversy which remained to be
considered is to the effect that the
moveable property, which was purchased
by the petitioner in the auction is delivered
or not and if not delivered, the money has
been refunded back or not.

After going through all the facts
and circumstances of the case, this Court is
of the definite opinion that the appropriate
forum for the respective parties including
the auction purchaser, would be the Debt
Recovery Tribunal for adjudication of some
factual disputed question of law which has
now crept in during pendency of the S.A
proceedings before the Tribunal or before
the Appellate Tribunal. The question of fact
which has originated during litigation
before the two Tribunals, can well be
settled before them after hearing the rival
claims of all the parties. This Court is also
not in agreement with the views drawn by
the Appellate Tribunal that in the given
facts of the case the auction purchaser is
now stranger and can seek his remedy
elsewhere. In these view of the matter, this
Court finds that the all the parties may be
relegated before the Tribunal for final
adjudication of their rights in the matter.

In view of the above, the petition
succeeds and is allowed. The orders
impugned dated 21.1.2015 and 23.12.2014
passed by the Debts Recovery Appellate
Tribunal as well as order dated 25.06.2014
passed by Debts Recovery Tribunal to the
extent of permitting the withdrawal of
Securitisation Application No. 160 of 2010,
are quashed. The matter is remanded back
to the Tribunal for adjudication after
hearing the parties including the auction
purchaser afresh."

(emphasis supplied)

11. In compliance of above order, the
DRT, Lucknow heard the parties and
passed following order dated 29.07.2019 on
an M.A. filed by auction purchaser and
allowed
securitization
application
and
directed to refund the money to auction
purchaser.

12. The DRT, Lucknow held that :-

"The Respondent bank has failed
to explain that when the sale conducted in
favour of auction purchaser was set aside
vide Tribunal's order drd.08-05-2014 then
there was no reason to hand over the
760 INDIAN LAW REPORTS ALLAHABAD SERIES
movable assets to the auction purchaser on
a subsequent date.

The Respondent bank has failed
to produce before the Tribunal any
inventory with the signature of auction
purchaser in support of handing over the
movable items to the auction purchaser.

The Respondent bank has filed
affidavit of Shri Rajkumar Saxena as
evidence in support of handing over the
movable assets. The said affidavit was filed
before the Hon'ble High Court. Even with
the said affidavit, no inventory duly signed
by the Auction purchaser is enclosed in
support of handing over the movable goods
to him. Hence, merely on the basis of
averments of affidavit, it cannot be inferred
that the movable assets were ever handed
over to the auction purchaser. Since the
movable assets were never handed to
applicant/auction purchaser, hence over
applicant/auction purchaser is entitled to
get back the sale consideration deposited
by him with the bank."

(emphasis supplied)

13. The bank challenged the above
order before DRAT which was allowed by
impugned order dated 19.10.2020 that DRT
shall adjudicate it first in the light of
direction by this Court in Writ Petition No.
807 of 2015 which are referred below -:

"21. It is obvious that the
appellant-bank orally prayed on 19.06.2019
for grant of permission to file additional
documents but the Tribunal below declined
to accept the said prayer stating that the
matter was to be decided on the basis of
earlier evidences. The Tribunal below has
misconstrued
the
direction
dated
30.11.2018 of the Hon'ble High Court.
Since the order dated 19.06.2019 was
challenged by the appellant-bank in Appeal
No. R-55/2019 though, the same became
infractuous after passing of the final order
on 29.07.2019 but the bank was free to
raise that issue in the instant appeal as the
interim order dated 19.06.2019 merged
with the final order. The order dated
19.06.2019 is not sustainable hence, is
liable to be quashed in the present appeal.

22. It is worthwhile to mention
that on 05.07.2019, the appellant-bank filed
an application before the Tribunal below
with some documents and the respondent
No.
2
auction
purchaser
filed
its
preliminary
objection
on
10.07.2019
against the same. The Tribunal below ought
to have decided the application dated
05.07.2019 before passing the final order.
But without doing so, the Tribunal below
has made certain observations with regard
to some documents whereas, no finding
was
recorded
with
regard
to
the
photographs
and
other
electronics
evidences including the videography stated
to have been prepared on 05.08.2014 and
23.08.2014 by the appellant-bank. Further,
the consideration of such documents
without affording an opportunity of hearing
to the auction purchaser for rebuttal of the
same was another fallacy in the order and
was also contrary to the earlier order passed
on 19.06.2019 declining to permit the
additional evidence.

23. Moreover, it is the specific
averment of the appellant- bank that the
representative of auction purchaser was
present at the time of taking over the
possession on 12.06.2014 and also that the
videography was conducted on 05.08.2014
and 23.08.2014 in which the presence of
authorized
representative
of
auction
purchaser is
claimed. The electronic
evidence
including
videography
and
photographs are relevant to decide the real
controversy between the parties. However,
the same was not considered and have not
been allowed to be taken on record. Since
5 All. M/s Shree Bhoomi Food Beverages Pvt. Ltd. Vs. Debts Recovery Appellate Tribunal & Ors. 761
the matter was pending before the Hon'ble
High Court since 2014, therefore, the Bank
had
no
opportunity
to
file
evidence/document earlier before the DRT,
Lucknow to substantiate their claim of
delivery of possession Thus, the Bank is
entitled to be provided an opportunity of
furnishing evidences/documents available
with them. Simultaneously, the auction
purchaser is also entitled for adducing
evidence/documents in support of its
contention or for rebuttal of the documents
filed by the Bank. Since, the finding is to
be recorded for the first time by the trail
court i.e. Tribunal below therefore, I deem
it appropriate to remand the matter back to
the DRT, Lucknow to adjudicate afresh
after affording. opportunity to the parties to
adduce the documents/evidences as they
may wish to file.

24. In view of the above, the
appeal is allowed. The order dated
19.06.2019 and 29.07.2019 passed by the
Tribunal below are set aside and the matter
is remanded back to the DRT, Lucknow to
adjudicate it afresh in the light of the
directions given by the Hon'ble High Court
in Writ Petition No. 807/2015 after
affording opportunity of filing additional
evidences/documents and providing right to
rebuttal to the same to the parties and then
to decide the issue in accordance with law."

14. The above order is impugned in
present writ petition at the instance of
auction purchaser.

Submissions of Petitioner/Auction
purchaser :-

15. Sri Shashi Nandan, Senior
Advocate assisted by Sri G.P. Srivastava,
learned
counsel
for
petitioner/auction
purchaser has submitted that :-

(i) This Court by order dated
30.11.2018 has quashed the orders dated
21.01.2015, 23.12.2014 passed by DRT
and order dated 25.06.2014 to the extent of
permitting withdrawal of Securitization
Application No. 160 of 2010 and matter
was
remanded
back
to
DRT
for
adjudication after hearing the parties
including the petitioner/auction purchaser
afresh.

(ii) On remand, DRT heard the
parties on a limited issue about handing
over of movable assets and held that since
sale conducted in favour of auction
purchaser was set aside on 08.05.2014, then
there was no reason for bank to handover
the movable assets to auction purchaser and
that no inventory was filed in support of
handing over the movable property.

(iii) This Court has not directed to
adduce any new evidence. It has directed
only that parties be heard afresh.

(iv)
Possession
of
auction
property was never handed over to the
petitioner.

(v) Sufficient opportunity was
granted to the bank, but no evidence was
submitted during proceedings before DRT.

(vi) That the respondent bank on
one hand has taken a stand that they have
delivered possession to the petitioner
company, however, on other hand they
made an averment that the possession of
the unit was delivered to one Sri Aash
Ahmad. The respondent bank has further
issued a letter on 19.07.2014 to one of the
Director of the applicant company that
since the plant and machinery installed at
factory premises are huge so Sri Aash
Mohd., who has no concerned with the
petitioner company had requested for
further time of 1 to 1/2 month to remove
the same.
762 INDIAN LAW REPORTS ALLAHABAD SERIES

(vii) The pendrive submitted by
bank before this Court cannot be relied
upon.

Submissions of Bank :-

16. Sri Sanjai Singh, learned counsel
appearing for bank has submitted that :-

(i) There are sufficient evidence
with the bank that possession of land along
with machinery was handed over to auction
purchaser, which essential to be looked into
for
proper
adjudication
of
dispute,
therefore, there was no illegality in
impugned order whereby matter was
remanded back for consideration with
liberty to submit evidence.

(ii) High Court has directed the
DRT to decide afresh after hearing the
parties, therefore, it ought to have allowed
the bank to submit evidence. In support of
their submission that possession was duly
handed over.

(iii)
Opportunity
to
place
evidence cannot prejudice the auction
purchaser as he has been granted liberty is
granted to rebut the evidence.

17. Heard learned counsel for parties
and perused record.

18. Handing over possession of a
auction property requires a procedure to be
allowed. A possession memo duly signed
by
representative
of
bank,
auction
purchaser and witnesses has to be prepared.
To handover possession cannot be an
empty formality.

19. In present case, learned counsel
for bank alleged that possession of plant
and machinery was handed over to auction
purchaser/petitioner
in
presence
of
authorized
representative
of
auction
purchaser on 12.06.2014 and it was
videographed also.

20. A photocopy of above referred
possession memo dated 12.06.2014 is
annexed
as
Annexure
SA-1
of
supplementary
affidavit
filed
by
respondents No. 3 and 4. The said
document is dated 12.06.2014. It is
purportedly signed by authorized signatory
without any name/designation as well as
same has signed below word ''received', but
it is dated 18.06.2014, though by an order
dated 08.05.2014, the DRT has held that
auction dated 17.02.2014 was illegal,
therefore, there was no occasion for bank to
handover possession.

21. For reference, alleged possession
memo is pasted hereinafter :-

22. The above referred document by
any legal acumen could not be considered
to be a ''possession memo' as required by
due procedure, therefore, any videography
of such act would have no consequence.
The bank has brought on best evidence in
support of their claim that property was
5 All. Netra Pal Singh & Anr. Vs. State of U.P. & Ors.
763
handed over to auction purchaser, however,
as referred above, it cannot be construed to
be a legal document for possession.

23. The above referred document is
not signed by any officer of bank, bank seal
is also absent. Name of authorized officer
is
also
not
disclosed.
The
alleged
authorized
representative
of
auction
purchaser has also not disclosed his
name. There is no document on record
how he was appointed as authorized
representative of auction purchaser as
well as there are no witnesses to the
process of handing over of auction
property; as well as inventory has also
not placed on record though it was
mentioned in abovereferred letter that
inventory was also enclosed, therefore,
there is no need to remand the matter to
DRT for fresh consideration after giving
opportunity to parties to give evidence as
the best evidence is before the Court but
it could not be considered to be a legal
document for handing over possession of
property to auction purchaser.

24. Accordingly, writ petition is
allowed
and
impugned
order
dated
19.10.2020 is hereby quashed.
----------
(2023) 5 ILRA 763
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 34859 of 2013

Netra Pal Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Satyendra Nath Tiwari, Sri Anupam
Kulshreshtha, Sri Mahesh Gautam

Counsel for the Respondents:
C.S.C.

A. Ceiling Law - UP Urban Land (Ceiling
and Regulation) Repeal Act, 1999 -
Sections 8(4), 10(1) & 10(5) - UP Urban
Land
Ceiling
(Taking
of
Possession,
Payment of Amount and Allide Matters)
Direction, 1983 - Abatement of ceiling -
Earlier ceiling process was set aside by the
appellate court - No possession was taken
u/s 10(6) of Act of 1999 - Effect - Held,
the St. has not brought on record any
material
to
show
that
the
actual
possession was taken from the petitioner
in
pursuance
of
the
fresh
ceiling
proceeding initiated on the basis of order
dated
10.2.1993
of
the
competent
authority, hence the ceiling proceeding
regarding the land of the petitioners, in
question has been abated under the Act,
1999. The petitioners are entitled to retain
the land and respondents are directed not
to interfere in the possession of the above
land. (Para 7 and 9)

Writ petition allowed. (E-1)

List of Cases cited:

1. St. of U.P. Vs Hari Ram; (2013) 4 SCC 280

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
petitioners and learned Standing Counsel
for the State.

2. The present petition has been filed
with the following prayers:-

"i) Issue a writ, order or direction
in the nature of mandamus declaring all the
proceedings over the land in question