Aarburgreen Estates LLP vs State Bank of India on 8 August 2025

JUDGMENT

Reserved on 14.07.2025 Delivered on 08.08.2025 This Appeal has been filed for setting aside/quashing the order dated 14.07 .2023 passed in TRC 191/2001 (SBl Vs Textile Products & Proofing Company and Others) by Sri A.K. Panda, the then Recovery Officer, Debts Recovery Tribunal 2, Kolkata whereby and where under he passed different orders and directions.

2. lt has been set out that appellants are neither borrowers nor guarantors, were not even parties in TA No.18211996. They are also not parties before the Ld. RO in TRC No. 191/2001. The Certificate Holder Bank (CHB) is also not claiming any relief against the appellants. The appellants are also not liable to pay to the CHB. 2(i). The Respondent No.2 purchased a property belonging to Certificate Debtors (CD) in an auction held by Ld Recovery Officer on 11.07 .2006 for Rs 1 ,06,700(Rupees One Lakh Six %

Ap pe al I 03 I 2023 -DRT-2lKO L Thousand Seven Hundred Only/-) . The certificate and confirmation of sale was issued in favour of Respondent No-2 on 25.09.2006. The amended copy of sale certilicate and confirmation were issued on '19.09.2014. The sale certificate was executed and registered in favour of Respondent. 2 on 10.03.2017 by the receiver appointed by Ld.RO. 2(ii). The further case of the appellant is that the Appellant No.1 in 2016 and 2017 purchased adjoining plots at a total consideration of Rs 3,65,27,500. The Appellant No.1 entered into a development agreement with Appellant No.2. The Appellants obtained sanctioned plan in August 2022 from Rajpur-sonarpur Municipality being sanction plan no.90/CB/25l46 for construction of two towers, twelve storied and fifteen storied respectively with saleable area of 1,62,000.sq.ft. consisting of 141 residential flats and one commercial space with a project cost of Rupees more than 30 crores. Flats were booked. 2(iii). The Respondent 2, who purchased a small plot of adioining land in 2006, filed an application before Ld.RO on 13.12.2022 alleging that appellants were blocking the ingress and egress over his purchased plot of land. The impugned order dated '14.07.2023, the Ld.RO issued various directions affecting the interests of the appellant. Hence this appeal has been filed by the appellants.

3. The Appelant No.1, Aarburgreen Estates LLP is the absolute owner of that parcel of land measuring about 104.66 satak(Equivalent to 63 cottahs, 5 chittacks, 5 sq.fts.). lying in RS Dag Nos. 3325,3329 and 3334 recorded in RS Khatian Nos. 832,697 and 448 corresponding to LR Dag Nos.3397,3401 and 3406 all recorded in LR Khatian No.4125, all in mouza Jagatdal, JL No.71, Ward No.25 Municipal Holding No.4O8, Dwarir Road, under Rajpur-Sonarpur Municipality, Kolkata- 700151 in the district of South 24 Parganas(Refened by appellant as the 'Said Premises') by seven deeds of convenyance. The particulars are :-

a. By deed dated 08.01.2016 6.64 Sataks (Equivalent to 4.02 Cottahs), Arburgreen Estates LLP purchased for a sum of Rs 22 Lakhs. The said land was purchased by Dream Tower Kolkata Pvt Ltd. from Nirmalendu Guha Thakurta, Niharendu Guha Thakurta, Sukhendu Guha Thakurta and Sarojendu Guha Thakurta by a deed of sale dated 12.04.2013.

b. By the deed of sale dated 06.05.2016, Arburgreen Estates LLP purchased 15.785 Sataks from Sarojendu Guha Thakurta for a consideration of Rs 48'25'000.

c. By deed of sale dated 10.05.2016 further purchased 15.785 Sataks from Sukhendu Guha Thkurta for a consideration of Rs.49,87,500.

d. By deed of sale dated 10.05.2016 again purchased 15.785 Sataks from Niharendu Guha Thakurta for a consideration of Rs 47,75,000.

e. By deed of sale dated 20.05.2016 again further purchased '15.785 Sataks from Nirmalendu Guha Thakurta for a consideration of Rs.52,15,000.

f. By deed of sale dated 13.12.2016 further purchased 17.44 Sataks from Chaitali Guha Thakurta , Saptadeep Guha Thakurta and Jaita Basak at a total cost of Rs. 80'25,000.

g. By deed of sale dated 28.11.2017 further purchased 17.44 Sataks from Amalendu Guha akurta for a consideration of Rs. 65,00,000. 4"o

Appeal/03/2023-DRT-2/KoL 3(ii). By this way appellant 1 purchased the above properties for a total consideration of Rs 3, 65,27,500

4. The appellant no.1 entered into a Development Agreement dated 19.08.2022 with Multicone Prestige Residences LLP (Appellant No.2) for development of the land at its own cost as per sanc{ion plan by Rajpur-sonarpur Municipality on sharing basis between Appellant 1 and 2 al a ratio of 30% and 7Oo/o respectively. ln the said development agreement there were mentioning of building sheds and structures measuring about 2230 sq.mtrs. which had been demolished by appellant 2 after execution of the agreement. sanction for a building plan was applied for. The purchaser Aarburgreen Estates LLP had to file an affidavit of boundary declaration, which was affirmed on 15.05.2018 before the Raipur-Sonarpur Municipality(Annexure "E' to the memo of appeal). Another affidavit had also been affirmed on 23.12.2021(Annexure "F', to the memo of appeal). The site plan clearly show that the purchased land by Aarburgreen Estates LLP do not have any connection with vacant adjoining land including the land purchased by Subhas Chowdhury, the Respondent 2. a(i)'TheRaipur-SonarpurMunicipalitysanctionedplanno.g0/CB/25l46on1o.o8.2o22for construction of two towers of twelve and fifteen storied respectively containing saleable areas of 1,62,000 sq.ft consisting of 14',1 flatS and one commercial space. After sanction construction was started. The project was given wide publicity. seven flats were already booked. The name of the purchaser is given in the memo of appeal.

5. The further case as made out in the memo of appeal is that a notice dated 15.12'2022 was received from Ld.RO of this Tribunal asking Mr.Satyajit Barma, a partner, to appear in person before the Ro on 22.Q2.2O23 and provide documents for the property in his possession on the ground that he blocked ingress and egress of the property sold by DRT to Mr Subhas chowdhury' The property mentioned in the notice was as follows:- ,,All that piece and parcel of land measuring 22 decimals, more or less, under Dag No. 3332, Khaitan No. 879, J'L No. 71, R.s' No.233' Touzi No.47,49,63,64 and 68 Mouza -Jagatdal' Police Station- Sonarpur, District-24 Parganas(South);West Bengal''

6. AppellantlappearedbeforetheLd.Ro.Ld.AdvocatefortheAuc{ionPurchaser Mr.Subhas chowdhury submitted that the aforesaid land of total arca of 22 decimal had been purchased on 11.07.2006, amended sale certificate and confirmation of sale was issued on 19.09.2014 and the ingress and egress of the property was blocked. lt was made out that certificate Debtors (cD) illegally sold their properties to appellant 1 . The receiver had submitted a report on local enquiry that a structure on plot numbers 3325,3329,3333,3334 and 3332 had been demolished and a housing project namely 'Multicon Prestige Residences'is under construction' on 23.02.2023 the appellant 2 received a notice directing to appear in person on 01 03'2023' On that day appellant 1 and 2 appeared. Ld Ro was pleased to pass an order and issued direction for issuance of notice to BL and LRO, Sonarpur to remain present on the next date and file report of Rl Mr.Atanu Bhattacharya relating to demarcation and identification of the property of the Auction purchaser on 24.01.2023 and also directed the directors of the appellant company to remain q prtE6nt on the next date a.7

Appeat I 03 I 2023 -DRT-2/KoL

7. On 24.03.2023, both the appellants filed separate applications with a prayer to serve the copy of the application filed by the purchaser and for an opportunity to file oblections against that application and for affording an opportunity of hearing. Those applications have been numbered as tN3g1t2123 and 1N33212023 respectively. During the course of hearing on 11 .04.2023, respondent 2 supplied a copy of his application being TRC lA No.340/2022. Ld Advocate for the appellants made submission regarding maintainability of the application but Ld.RO did not record the submission. Thereafter the appellant mentioned the gist of the application lNU0l2022 with reference to certificate and confirmation of sale dated 25.09.2006 and on 1 1.09.2014 on an application of the Respondent 2, the purchaser, the sale and the confirmation of sale was amended by including the name of Sri.Subhas Chowdhury , the proprietor of Ramani Wood Crafts and the police station. The application was allowed on 19.09.2014. The order was passed with respect to two properties. Thereafter some more facts regarding TRC lA No.340/2022 were mentioned.

8. lt has been made out that vide TRC lA No.34012O22, a prayer was also made for removing the earlier receiver Mr.P.Mitra on the ground of non-cooperation and lack of coordination. The prayer was allowed vide order dated '13.12.2022 and Ld.Advocate Mr.Gautam Sur was appointed the new receiver. He was directed to hand over the physical possession of the sold property to the auction purchaser after demarcation and identification by one amin to be deputed from the BL and LRO department. The new receiver submitted report on 01.O3.2O23 and stated that ingress and egress passage to and from the property sold at DRT-ll , Kolkata to Subhas Chaudhuri, the auction purchaser was blocked. The receiver did not mention how he came to that conclusion.

9. The impugned order was passed on 14.07.2023. On that date, the counsel of the appellants submitted a copy of a letter dated 06.06.2023 sent by Deputy Secretary, Government of West Bengal, department of Urban Development and Municipal Affairs to chairman of Rajpur-Sonarpur municipality regarding declaration of 20 feet common wide road to a public road'

10. By the impugned order dated 14.07.2023 certain directions were issued which are set out in paragraph 5.33 of the Memo of Appeal. BL and LRO Sonarpur, was directed to depute the R.l- Mr.Atanu Bhattacharya who was to make demarcation of the area of the old factory shed where the Mini Commercial Vehicle with Regd No.WB19D4936 with print of Aarbur was standing and mentioned the sheded area in sketch map which is part of the Dag Number 3332 of the auction purchaser, the R.l has to show all the "existing" and "possibte" passages with length and width in the sketch map,if the mini commercial vehicle is driven out from the present standing point to the road available outside through all the existing and possible passages via the gate of the premises occupied by the developer Multicon. The Rl has to prepare a report along with sketch map. The BL & LRO, Sonarpur has to foMard the report and a sketch map of the Rl to the RO. The receiver was also directed to communicate the order along with a sketch map of the auction purchaser's land and also io sell it to the BL & LRO, Sonarpur for compliance. The Ld.Receiver was also to submit report along with video and photographs and also the minutes of the meeting. A direction was also given to communicate the order to O/C Sonarpur, PS for compliance' 1O(i) The receiver was also directed to serve the copy of the order to the officials of the Aaburgreen. The receiver had to prepare inventory of the items present in the unauthorised premises built by Aarburgreen in the land of auction purchaser which was put under lock and key 9n 2ry1 .2023 by the Receiver. The O/C Sonarpur,PS was also directed to give full cooperation /,a- ta,h (z-4''' b'-

Appeal / 03 | 2o23'DRT-2/KoL and protection to the receiver and Rl. The authorities and guards. The authorities of Aarburgreen were also directed to allow the receiver, Rl to enter their premises for doing necessary act. 10(ii) The Aaburgreen was also directed to submit the documents in connection with the letter issued by Deputy Secretary to chairman Rajpur-Sonarpur Municipality regarding the copy of petition, the proof of ownership of RS Dag No.3330 & 3351 , the consent letters of the property owners of other Dag Nos. Through which the 20ft. Wide road to pass' Aggrieved and dissatisfied with the above order daled 14.07.2023 the appeal has been preferred. The gist's of the grounds are as follows - i. The RO failed to appreciate that Respondent No.2, the purchaser at cost of Rs.1,06,700 aclually tried to prevent the construction over the land purchased by Appellantno.1atcostofRS3,65,27,5OO/-havingtheplansanctionedbythe Municipality, The Respondent filed the application on 13.,12.2022 long after the construction was started. Prayer was also made in the application for change of a receiver on the ground that the receiver was not co-operative' ii. The RO failed to appreciate the fact that before '13.'12.2022, for about 16 years after purchasetheRespondent2neverclaimedanyrightofingressoregress.ThelA 340 filed by the Respondent No.2 on',13.12.2022 cannot be a bonafide one and was filed with ulterior motive to stop the construction. iii. The land purchased by Respondent No.2 falls within Dag No. 3332. Lands purchasedbytheAarburgreenEstatesLLP.FallswithinDagNos.3325,3329& 3334 and has no connection with each other. The land of Dag No.3332 has been mortgagedbyCDinfavourofStateBankoflndia'TheDagNoS.3325,3329&3334 were never mortgaged. The auction purchaser has made allegation in the application that Mr.Sekhar Burman,thepartner,hasdisturbedtheegressandingressoverthelandof 22decimals of the land of subhas chowdhury. The egress or ingress of that land was never through the lands at present belonging to the appellant So far as the egress and ingress on the said 22 decimals is concerned, the same was through a 20 ft. Passage common for Dag No. 3332, 3350, 3331 & 3333 & few other Dag Nos' (Copy of the plan prepared on 09.02.2023 by Mohan Kumar Ghosh ,amin was annexed with the Reply by the Appellant). ln the application the said subhas chowdhury has not even alleged that owner of land of Dag No.3332 has a right of easement through the lands of Dag No.3325, 3329 &3334. From perusal of the sale certificate dated 10.03.2017, it appears that shri Moni Mohan Naskar & Shri Phani MohanNaskarweretheoriginalownersofDagNo.3332andwerenotownersof any portion of the land of Dag Nos. 3325,3329 &3334. There is nothing on record to show that the said above two persons had any right of easement over the lands of Dag Nos. 3325, 3329 &3334. From the deed of sale certificate dated 10.03.2017, it appears that some Dilip KumarNathandShivaPrasadNathpurchasedthelandinDagNo.3332byDeed No.4528/1956(The copy of that certified copy was annexed to the reply filed by the appellanl before RO). That date does not mention that the owner of the land in Dag .'r-l ffi tv vt. vI v .

Al}eal I 03 I 2oz3 -D RT- 2/ KOL No.3332 had any right of easement over the lands in the three Dag Nos. as stated above. The above Dilip Kumar Nath and Shiva Prasad Nath sold 22 decimals of the land to Nirmal Kumar Guha Thakurta by Deed No.5582/19660he copy of the certified copy of the deed was annexed with the reply). That deed also does not mention regarding any right of easement. The lands of Dag nos.3329 & 3334 were purchased by Usha Rani Guha Thakurta by sale deed dated '16.04.1962 and at that time , the Dag No.3332 was not owned by any member of the Guha Thakurta family. The said land was purchased by Nirmal Kumar Guha Thakurta by Sale Deed No.5582/1966, as stated in the previous paragraph. Then it cannot be argued that land of Dag No.3332 has any right of easement over the other land of three Dag Nos. The land under Dag No.3325 was purchased by members of Guha Thakurta family in the year 1972 by Deed No.446/1972. ln that way also there cannot be any right of easement over the three Dag Nos. 3325, 3329 &3334. The proclamation of sale also did not mention that purchaser of plot 3332 would have any right of easement. The certificate and confirmation of sale both dated 25.09.2006 also did not mention the above fact regarding easements. The fresh certificate and confirmation of sale dated '19.09.2014 also did not mention the above right. ln the fresh certificate and confirmation of sale issued on the petition filed by Mr.Subhas Chowdhury. The petition also did not mention regarding incorporation of the fact of easementary right. The Deed of Conveyance dated 07.04.2017 also did not mention that the purchaser of land in Dag No. 3332 would have any right of easement. lt has been set out that therefore no question of demarcation of the land of Oag no.3332 and it has clearly being mentioned in the sale certificate dated 10.03.2017 that receiver had taken possession of the property after attachment therefore there is no question of fresh demarcation .

11. TRC lNUOl22 was heard, detailed submissions were made instead of disposing of the said application, the Ld. RO gave various directions vide the order dated 14.07.2023, which is impugned. lt has been made out that duty of the Recovery Officer should have to appreciate the evidences and adjudicate the mafters in dispute and not to pass order for obtaining evidence from various sources for supporting the party.

12. On the above grounds prayer has been made to set aside the order daled 14.07.2023 passed in the TRC No.19'1/2001(rRC lA NO.340/2022).

13. Two supplementary affidavits have also been filed on behalf of the Appellant 1 and Appellant 2 respectively 13(i). The supplementary affidavit filed on behalf of the Appellant No.1 states that after 14.07 .2023, the date on which the impugned order was passed certain developments have taken place. On 01.O9.2O23 Ld RO passed an order in TRC 191/2009 stopping all construction activities on the premises of Appellant 1 being done by Appellant 2. Aggrieved by the said order Appellants filed one Revision Application before the Hon'ble High Court, Calcutta under Article 227o1 the Constitution of lndia , being CO No. 3151/2023(Aarburgreen Estates LLP & Others Vs Subhas Chowdhury & Others). Hon'ble Court on 14.09.2023 passed an order to the effect that Hon'ble ,._,Cou',-{fiill hear the application finally with the finding that the impugned order, prima facie, to be ?e7t a

' oPPeallo3l2o23-DRT-2/KoL without jurisdiction. The maintainability point was kept open. The Respondent 2 filed one sLP being no. sLP(C) No.26763 ot 2023 against that order. That sLP was dismissed by an order dated 12.12.2023 by the Hon'ble Apex Court and Hon'ble High Court Calcutta was requested to take up 227 petition at the earliest. 13(iD. co 315'lno2g was finally heard and the application was allowed by an order dated 21.05.2024. The order passed by the Ro dated 01.09.2023 was set aside. A prayer has been made to consider the supplemenlary affidavit at the time of final hearing of appeal. The other supplementary affidavit has been filed with the same facts and prayer on behalf of the Appellant 2' Affidavit-in-ODDositi on

14. ResDonse of Resoondent No.2 It has been set out that Respondent No.1, the bank pursued TRC for recovery of debt before Ld RO. DRT-ll, Kolkata against certificate Debtors(cD). lt has been made out that the Appeal is misconceived that in the guise of Appeal, an attempt is being made to bypass the statutory provision to stake its claim over such property. The Appellant could not have purchased and if he has purchased that is the outcome of a void contract. lt has further been set out that appeal is not maintainable on fact and on law, it suffers from non-joinder of necessary parties. The seven cD's are not made parties and in his absence the matter cannot be heard and adludicated upon' The Appellant before the RO in the TRC proceeding was the opposite party and is a non-suitor/non- party and was only opposing the application of Respondent 2 in lA 34012022. No prayer had been made by the Appellants before the TRC proceeding. The Appellants have not even intervened in the proceeding. 14(i). The gist of the case made out by the Respondent 2 is that the Recovery officer published a sale notice dated 28.04.2006 inviting bidders to purchase the property- .ALL THAT piece and parcel of land measurlng 22 decimals more or less, under Dag No.3332,KhatianNo.879,J.LNo.71,R.S233,TouziNo.47,49'63'64and68'ouza- Jagatdal.Po]icestationsonarpur,District.24Parganas(south),westBengal., TheRespondent2wasdesirousandexpressedhisintenttopurchasetheproperty.The receiver Kajal Kumar Halder provided the respondent with inspection of the property by opening iron gates providing the right of pathway leading to the property. During inspection' no one opposed that exercise. The Respondent 2 conveniently entered through the iron gate, walked on the land that was the road leading to the said property surrounded by boundary wall That exercise was comfortably done giving confidence to the Respondent 2 to participate in the auction sale' lt was informed that the property offered for sale is only a part and portion of the larger premises owned by the cDs. on 11.07.2006 Respondent offered his bid and was declared as a highest bidder. The entire consideration amount was deposited and the property was sold to him by the Tribunal in the said TRC in the sale conducted by the Ro. The Tribunal has to secure the interest of the purchaser. sale certificate was issued on 25.09.2006, which was subsequently modified and fresh sale certificate issued on 19.09.2014, the Ld. Receiver also executed a deed of conveyance intP.hvout. L\q

App eal / Ot / zOz3 -D RT-2/KO L 14(ii)The physical possession of the property with right of pathway from the Municipal road, namely Dwarir road through iron gate was delivered. suddenly during 2020, that iron gate providing easemenupathway was closed at the instance of the applicant, thereby the property sold to the Respondent No.2 was made a landlocked property. The Respondent 2 was constraint to file lN34Ol2O22 before the RO in the said TRC proceeding on the premise that the property was sold on the representation that Respondent 2 should have a pathway from the iron gate to his property' The Appellants filed their objection after receiving the summons. No application was made by the Appellant seeking intervention in the TRC. Pending adjudication of that lA, the RO was carrying out enquiries and investigations to render justice and to ascertain the true and correct facts. ln order to give it a colour of a purported right, he filed this appeal'

15. lt has further being made out in the affidavit-of-opposition, that the Appellant purchased through various deeds the larger property making a project plan and in the process the iron gate was closed and blocked. The Appellant sought to provide an alternative solution by creating a new pathway from the rear side of the property owned by third parties' The alternative arrangement is fully detailed and sketched in map marked with lefter "E"' The owners of the properties over which the proposed 20 ft. pathway sought to be carved out, have recorded their objection.(obiections annexed collectively and marked letter "F"). 15(i).ThelargerpropertywhichincludedthepropertyofRespondentNo.2,wereownedby the cDs. The balanced residue of the larger property cannot be/could not have been dealt with by the cDs owing to the provisions of Rule 16 of the schedule of lncome Tax Act 1961 . The properties were illegally sold by the cDs in favour of the Appellant Nolover which the Appellant No.2 is developing two high rise towers. 1S(ii).The claim of right, title and interest over the larger residual property of the cD arises out of a void transaction therefore no right title and interest accrued to the Appellants. only the Tribunal in the said TRC can propose to sale the same after protecting the right of pathway'

16. The cHB obtained Recovery certificate (RC) from the DRT. The Rule 16 of the second schedule of the lncome Tax Act clearly state that after service of notice under Rule 2, the cD cannot deal with the property without the leave of the Ro. ln the year 1998, the Respondent No 1 , the bank got the Recovery certificate(Rc) to the tune of Rs.48,55,057.33 /- against the cD. The Appellant No. 1 Aarburgreen Estates Ltd. ls not the absolute owner of the land measuring 104'66 satakh (63 Cottahs, 5 Chittacks, 5 sq.ft) lying in Dag Nos.3325, 3329, 3334 by virtue of the sale deeds executed in derogation of the Rule 16 of the second schedule of the lncome Tax Act. The deeds of 08.01.2016, 06.06.2016, 10.05.2016, 20.05.2016, 13.12.2016 &28.11.2017 are executed after the date of decree passed by DRT ll, Kolkata on 17.07.1998. As the decree was passed much prior to the date of conveyance, which vitiates all the deeds executed later on under Rule 16 of the lncome Tax Act.

17. The Appellants want to demolish the shed lying in the property of Respondent 2, the Appellant encroached upon the property and parked one truck bearing registration number: WB19D4936 with the name Aarbur which was also mentioned in the receiver's report dated 08.08.2023 a{

1. v

Appe al / 03 / 2oz3 -DRT- 2/ KOL

18. The Rajpur-Sonarpur Municipal Authority could not have sanctioned the building plan when the recovery proceeding was pending and when the conveyance is itself void. The advertisement, promotion and sale of the flat should be stopped as that will amount to duping the public at the hands of the Appellant that is done with a view to create third party interest over the property. The Appellants have infringed the easementary right provided by the statute.

19. The Appellant No.1 filed lA 33112023 with a prayer for service of the petition and no prayer was made for addition as a party to the proceeding. lt has been made out that though the property was put on auction in the year 2006, however due to wrong PS & wrong name the sale certificate was subsequently amended and sale certificate dated 19.09.2014 was issued.

20. The Ld. RO vide order dated 01.09.2023 was pleased to pass an order of status quo essentially to protect the subject property from being further dealt with. That order dated 01.09.2023 was an interim order and any right has not been decided. The entire issue is still pending. Assailing the order dated 01.09.2023 the Appellants preferred Civil Revision Application, CO No.3151/2023. The Respondent 2 appeared and filed opposition. The Hon'ble High Court at Calcutta vide an order dated 21.05.2024 allowed the CO and the order of the RO dated 01.09.2023 was set aside and the Hon'ble Court relegated the matter back to this Tribunal to decide the instant Appeal. An SLP was prefened against the order of the Hon'ble Court passed in CO No.3151/2023. The SLP bearing no: Special Leave Petition (Civil) Diary No.35463/2024 was dismissed on 11.11.2024 with an observation that pending appeal would be heard on its own merit and without being influenced by any observation (s) made in the order impugned. 2'1. One supplementary affidavit has also been filed on 27.'l'1.2024 by a Respondent 2 to the affidavit in opposition as above, with a prayer to make it part and parcel of the affidavit in opposition. With this supplementary affidavit certain photographs and maps have been filed for harmonious consideration with the averment made in the opposition for better administration of justice. Mr Kajal Kumar Halder appointed by the RO provided him with the inspection of the property in question through the gate which is only the easement / way leading to the said property. The copy of the map has already been annexed with the opposition and the coloured map has been filed for better clarification with the supplementary. ResDonse of Resoondont No.l : State Bank of lndia

22. Objection has also been filed on behalf of the Respondent Bank. lt has been set out that one Textile Products & Proofing Co., a partnership finn, availed credit facility from Respondent No.1 Bank. The Partnership Firm failed to repay the dues and the loan account tumed into NPA. A suit was filed for recovery of sum of Rs 48,55,057.33p(Rupees Forty Eight Lakh Fifty Five Thousand Fifty Seven and Paisa Thirty Three) against (i) Textile Products & Proofing Co., Partnership (ii) Niharandu Guha Thakurta (iii) Sukhendu Guha Thakurta (iv) Sushil Kumar Guha Thakurta (v)Saoendu Guha Thakurta (vi)Nirmal Kumar Guha Thakurta (vii) Gangesh Paints Pvt Ltd. The suit was transfened to DRT after its establishment under RDDB & Fl Act 1993 & was numbered as TA 182/1996. The Original Application was disposed off on 17.07.1998 and accordingly a certificate no.14199 was issued for recovery of the above sum. ln favour of the bank as certificate holder bank (CHB) against all the above defendants as the certificate debtors (CD) (RC bejpg number 1411999 has been annexed with the opposition). @^$ g -'D

Appe al I 03 I 2Oz3 -D RT-2/KO L 22(i). Demand notice was issued, which was returned un-served with the remark "Not Claimed'. CD No.4 was deceased and CHB submitted report that CD No. 5 & 6 are the legal heirs. CHB filed the property particulars situated at Mouza Chauhatti & Premises No.53, C.N. Ray Road Calcutta-700039.CH8 filed an affidavit of service affirming that CDs refused to receive the Demand Notice. The 'refusal' was recorded in the order. By the said order dated 17.U.200O, order of attachment was issued with respect to the property at Mouza-Chauhatti & Premises No.53, C.N. Ray Road Calcutta-700039. Receiver was appointed to affix the order of attachment on the conspicuous part of the property(The order dated 17 .U.2000 is Annexure E) 22(ii). Afier attachment of the aforesaid two properties, the receiver filed his report on 30.10.2000. lt was disclosed that property belonged to CD No.6 situated at Mouza-Jagatddal, details of which were enumerated in the order dated 30.10.2000(The order dated 30.10.2000 is Annexure "F'). lt has been made out that in view of the above order the property situated at Mouza-Chauhatti, Mouza-Jagatddal and Premises No. 53, C.N. Ray Road Calcutta-700039 in the name of CD were attached. The CDs were aware of Recovery Proceedings, the CD No.06 Nirmal Kumar Guha Thakurta also appeared through his advocate, which is recorded in the order dated 30.10.2000 and subsequent orders. 22(iii). lt has furlher been made out that through the seven deeds of conveyance the entire land sold were owned by CDs or their representatives. Section 25 of The RDB Act, 1993 provides the modes of recovery by taking possession of the property over which security interest is created or any other property of the defendant by appointing receiver for such property and to sale the same. Rule 16 of lncome Tax Rule 1962 provides "Private alienation to be void in certain cases." The seven deeds are in complete violation of Rule 16 of the lncome Tax Rule 1962. As the properties involved in those deeds were owned by the CDs or their representatives who sold the said properties to Appellant No.1 Aaburgreen Estate LLP without taking permission from RO. (page 9)

Points For Determination

23. On consideration of the pleadings, the documents and the record and after hearing the parties, following points arise for determination of the Appeal -

(1) Whether all the 7 Deeds of Conveyance executed in favour of the applicants are void in view of the Rule 16 of Schedule'll'of the lncome Tax Act, '1961.

(2) Whether the respondent no.2 has a right of egress or ingress over the property of appellant as an easementary right.

(3) Whether the R.O by passing the impunged order oversteps his jurisdiction as provided under Section 25lo 28 of the RDB Act.

(4) Whether the Appeal is fit to be allowed or not. Analysis &fiullrrse Point No. 1

24. The Respondent bank has filed a suit for a recovery of sum of Rs.48,55,057'33/- (Rupees Forty Eight Lakhs Fifty Five Thousand Fifty Seven and Thirty Three Paise) against - €*f(','")tile Products & Proofins co, Partnership

ApPeaU03/2023-DRr-2/KoL

(ii) Niharandu Guha Thakurta

(iii) Sukhendu Guha Thakurta

(iv) Sushil Kumar Guha Thakurta

(v) Sarojendu Guha Thakurta

(vi) Nirmal Kumar Guha Thakurta

(vii) Gangesh Paints Pvt Ltd. After transfer of the suit to Debts Recovery Tribunal, the case was registered as T.A 182 of 1996' Judgment was passed on 17.07.1998 and accordingly a Recovery certificate was issued being certificate No. 14 of 1999 in which the respondent no. 1 was the cHB and the above mentioned persons and entities were Certificate Debtor CDs

Submissions

ResDondent no, 1 - lt has been submitted on behalf of the respondent no.1 that afler attachment of the two properties, learned Receiver has filed his report on 30.10.2000 and it was disclosed by the learned Receiver that about the property belonging to CD no.6 situated at Mouza Jagaddal, details of which are enumerated in order dated 30.1O.2OOO. The said property situated at Mouza Jagaddal of cD No.6 was also attached and order of attachment was issued on 30.10.2000 8y mentioning the above facts it has further been submitted that it is clear from the above that property situated at Mouza Chowhati, Mouza Jagaddal and Premises no.53, C.N Roy Road, in the name of cD 3 attached. By refening to section 25 of the Recovery of Debts and Bankruptcy Act, 1993 and also Rule 16 of the lncome Tax (Certificate proceeding) Rules, 1962. lt has also been submitted that any private transfer of the property attached is void as against all claims enforceable under the attachment. Therefore, the Appellant no.1, Aarburgreen state LLP purchased the properties of L.R Dag No. 3325, 3329 and 3334 by 7 Deed of conveyance. Res no.2- Specific pleading has been made in para 4.3.10 of the "Opposition" that claim of right and interest over a larger resign property of c.Ds arises out of a wide transaction. (Rule 16 of the second schedule of lncome Tax Act) and no right detail an interest is conferred in favour of appellant no.1 or appellant no.2 in respect of larger property' Appellantno.l & 2- First in reply to the lN3;Ol2O22 the appellants contested the assertion and specifically made statements in para 4 of the reply that Aarburgreen state LLP is the absolute owner of the piece and parcel of the land measuring about 104.66 sataks comprising R.S Dag No.3325, 3329 & 3334. The claim of being absolute owner of the said property by virtue of 7 sale deeds the appellants contested the claim ofthe respondents. The proper course as provided under Rule 1 1 of Schedule 2 is that R.O should have proceeded to investigate the claim or objection instead he proceeded to pass further orders. Let the attachment point be considered, whether attachment was made or not.

25. lN34,Ot2O22 in question does not raise any question regarding this and impunged order daled 14.07.2023 also does not speak regarding attachment. This point is taken as. lt has been put forward by the respondents. Respondent no.1 by filing a mortgage suit in the court of ADJ in civil court at Alipore, Dist. 24 Parganas being T.s No. 58 of 1992 against the defendant' After Oo+, au t2 Appeal I 03 I 2Oz3 -DRT-2/KOL coming into force of the RDDB Act, 1993 the case was transferred to DRT, Kolkata and was numbered as 182 of 1996. The case was adjudicated upon and certificate was granted ex parte being Certificate no. 14l 1999dated 04.03.1999 for recovery of the sum mentioned above with interest. The certificate proceeding was initiated before Recovery Officer (RO)' DRT.

26. An application was filed by the cHB, state Bank of lndia on 04.01.2000 with a prayer to attach the property mentioned in schedule 1 & 2 ot the application and also for appointment of receiver. Learned R.O passed the order on 17.04.2000. Receiver was appointed. He was direcled to make inventory and take possession of the property. lt was also observed that Mouza of property relating to Dag no. 3332 was not mentioned from the statement of the bank. The CHB was directed to furnish the name of the Mouza of the above property. 27 . Receiver submitted report on 30.10.2000 as per report, he visited the property on OS.O8.2OOO situated at Mouza Jagaddalpur under Rajpur Municipality. Property measuring an area of 22 decimals under Dag no. 3332, Khatiyan no. 879 belonging to Shri Nirmal Kumar Thakurta, c.D 6. This property was described to be surrounded by broken boundary wall with a gate, which was identified by representatives of CHB. The copy of order and attachment was affixed on entrance gate. (The above property was purchased by applicant / respondent no.2 in auction).

28. Thereafter he visited the site of the property situated at Mouza Chowhati of Dag no. 1211, c.s Khatiyan 233 and R.S Khatiyan 234 (32 sataks) and Dag no. 1208 /1311 C.S 233 / R.S 682 (34 sataks) belonging to C.D no. 2 to 6. Symbolic possession was taken after it was inventorised. (The above property is not the subject property ot \N34OI2O22 in which the impugned order was passed).

29. Thereafter, he visited the site of the property situated at 53, C.N Roy Road, Calcutta - 700039. The inventory of this property, which was also the subjec{ property of R.P 13 of 1997 of TRC 281 of 2OO1 (SBl v/s Ganges Paint). As there was no change in the property, fresh inventory was not made.

30. The above properties are situated at different locations excepting the property purchased by the appellant being Dag no.3325, 3329 & 3334. The above are the properties attached pursuant to the order of the learned R.O dated 17.04.2OO0 by the receiver. Vide order dated 30.'10.2000, a formal order of attachment was directed to be issued with respect to the property of Dag no.3332. ln compliance of the said order leamed Receiver visited the site at Mouza Jagaddal, South 24 Paragnas under Rajpur Municipality on 16.'12.2000 and affixed the copy of the order of attachment. (hand written report is available on record of TRC 191 of 2001). Respondent no.1 / bank also rely upon the above attachment to mean that property of the CDs at Mouza Jagaddal, all have been atlached. 31 . From perusal of the report it does not come out that the properties of Dag no. 3325, 3329 & 3334 were ever attached. Attachment was made upon the property of Mouza Jagaddalpur, Dist. 24 South paragnas under the Rajpur Municipality being a plot measuring about an area ol 22 decimals under Dag no. 3332, Khatiyan no. 879. Only this property under Mouza Jagaddal was anachej_ &$ %-D

ApPeal/03/2023-DRT-2/KOL

32. Rule 16 (2) of lncome Tax Act provides that whether an attachment has been made under this schedule, any private transfer or delivery of property attached or of any interest therein and any payment to the defaulter of any debt, dividing or any monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. The claim of the respondent in this score is not substantiated with any evidence. The valid evidence is the crux and core of any adjudicatory process. Trite is the principle that there must be a proof offered in support of the specific pleading. Respondents have based their claim of the transfer being void under Rule 16 (2) of the lncome Tax Act is completely not substantiated.

33. AstherewasnoattachmentofthepropertiesofDagno.3325,3329&3334ofMouza Jagaddalpur, therefore all the alienations with respect to that property cannot be void. U. There is another aspect of the matter. Under Rule 11 of the second Schedule of the lncome Tax Act is somewhat different. under Rule 11(1) - where any claim is prefened to or any obiectbn is made to the attachment or sale of any propefty in execution of a cedificate on the ground that such propeiy is not liabte to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection. lJnder Rule 11(4), (5) and (6) it is provided as follows - Rute11(4):Where,uponthesaidinvestigation,theTaxRecoveryofficeris satisfled that, for the reason stated in the claim or objection, such property was not, at the said date, rn possession of the defaulter or of some person in trust for himorintheoccupancyofatenantorotherpersonpayingrenttohim,orthat, beinginthepossessrbnofthedefauftelatthesaiddate,itwassoinhls possesslon,notonhisownaccountorashtsownpropelty,butonaccountofor intrustforsomeotherperson,orpafttyonhisownaccountandpartlyonaccount of some other person, the Tax Recovery ofticer shall make an order rcleasing the propetty, wholty or to such extent as he thinks ftt, from attachment or sale' Rule11(5):WeretheTaxRecoveryofficerissatisfiedthatthepropeftywas,at the said date, in the possession of the defautter as hr's own propefty and not on accountofanyotherperson,orwaslhfhepossessionofsomeotherpersonin trustforhim,orintheoccupancyofatenantorotherpersonpayingrenttohim' the Tax Recovery Offtcer shall disallow the claim' Rule11(6):Whereaclaimoranobiectionisprefeffed'thepaftyagainstwhom an order is made may institute to a suit in a civil couti to establish the ight which he ctaims to the propeiy in dispute; but subject to the result of such suit (if any)' the order of the Tax Recovery Officer shall be conclusive'" Therefore,Recoveryofficer(Ro)hadtoexaminewhoisinpossessionofthepropertyandin what capacity. He can only attach property in possession of the c.D in his own right, or in possession of a tenant or a third party or on behalf of / for the benefit of the cDs. He cannot declare any transfer made by the cDs in favour of a third party as void. The provisions of Rule 1 1 are analogous to those of order xxl Rule 58 to 61 and 63 of the cPC. The R.O has failed to investioate the claim of the defendant / appellant under Rule 11 of the Schedule '2' of the lncome "5 &

t4 App eal / 03 / 2023 -D RT-2/KO L Tax Act. Even if any attachment had been made and if the R.O comes to conclusion that transferee is in possession in his or her own right. He shall have to raise the attachment.

35. This Tribunal therefore, cannot proceed on the assumption that transaction is void. Here the properties not in attachment by virtue of the different order passed by R.O. With a finding that there was no attachment of the property of Dag no.3325, 3329 & 3334, no further deliberation is required. Moreover, if any property is attached under the Second Schedule, thal conditions continued till the dues are recovered or the attachments is lifted. But any undue delay can easily be subject to question. Rule 68 B of the Second Schedule deals with this aspect and provides that sale of aftached property to be made within a time period.

36. R.O. cannot consider the sell to appellant no.1 as invalid being void ab-initio

37. From the analysis and discussions of the point, the Tribunal comes to the conclusion that there was no attachment of the properties of Dag no. 3325, 3329 & 3334 of Mouza Jagaddalpur, hence, the alienation with respect to those properties cannot be void.

38. Point No.l is answered in negative. Pointno.2&3 Easementarv Rioht

39. Whether the respondent no. 2 has a right of egress or ingress over the property of appellant has an easementary right. For deciding this issue the ordering portion is quoted below -

1) The BL&LRO, Sonaryur has to depute the R.l - Mr. Atanu Bhattacharya after communicating this order by the ld. Receiver and fix a date for compliance. The R.l- Mr. Atanu Bhaftacharya is directed to - (a) Make demarcation of the area of old factory shed where the mini commercial vehicle with Regd. no. W819D4936 pinted as Aahur is standing and mention the shed area in sketch map which is paft of the Dag No. 3332 of the Auction Purchaser - Mr. Subhash Choudhury.

(b) Also the R.l has to show all the existing and possible passages with length & width in the sketch map, if the mini commercial Vehicle will be drive out from the rpesent standing point to the Roads available outside through all the existing and possible passages via the gates of the premises occupied by the developer - MIJLTICON who has arrangement with the Land Owner - Aa,burgrcen.

(c) The R.l has to prepare a Repoft along with sketch map in this connection.

(d) The BL& LRO, Sonarpur has to forward the Repoft & sketch map of the Rt to this Tibunal immediately after completion of the work assigned to the Rl by this Tibunal.

(2) The ld. Receiver is directed to communicate today's order along with the sketch map of the auction purchaser's land prepared by the Rl previously and send immediately to the BL&LRO Sonarpur for compliance. The Ld. Receiver has to submit one report along with video & photographs and minutes of /meeting in this connection after comptiance of the tibunat's order. The Ld. @"

ls APPeatlo3l2o23-DRT-2/KoL Receiver arso has to communicate today's order to the OlC, Sonarpur P S for compliance. The Ld. Receiver has a/so to serve today's order to the officials of the 'Aahur Green' and 'MULT\CON' and communicate them the date fxed for worl< to be done by him and the R.l deputed from the BL&LRO Sonatpur' TheLd.Receiverhasalsotoprepareinventoryofthetimespresentinthe unauthoised prernises built by the'Aarbur Green' in the Land of the Auction purchaser which is put under the tock and key on 24'01'2023 by the Ld' Receiver.

(3) Theol?sonarpurP.Sisdirectedtogivefuilcooperationandprctection to the Ld. Receiver and the Rl deputed from BL&LRO Sonarpur while executing the Tibunal's order. Also the otc, Sonarpur maintain Law and order at the propetty site duing execution of wo* assigned to the Ld' Receiver by this Tibunal.

(4) The Authorities and guards of the MIJLTICON and Aarburgreen are directed to attow the Ld. Receiver and the R.l of BL & LRO to enter their prcmises for doing the necessary wor? as perthe directions of this Tibunal'

(5) The Auction Purchaser - Mr. Subhas Choudhury is directed to Pay RL.\1OOO/- (Rupees Fifteen Thousancl only) to the Ld' Receiver after compliance of todaY's order. ln connection with the letter of the Deputy Secretary addressed to the Chairman,RaipurSonarpurMunicipality,TheAarburgreenisdirectedtosubmit the following documents :-

(i) The copy of the petition atong with enclosures filed by Sri Ariun Singh Mehta.

(ii) The proof of ownership of R.S Dag No'3330 and 3351 (copies of title deeds and revenue record with English Translation)'

(iii) consent lefters of the Property owners of other Dag no's through which the 20 feet wide road adioining Dwair Road wl'l pass and to be declared as public Road as prayed by the Si Arjun Singh Mehta' DespitedirectedwasgivenintheLastorderofthisTribunalfortheCHB officials to be present on each hearing date fixed for this case, the officials from CHB are absent. The officials present on the last date on behalf of cHB are again directed to be present on the dates of heaing of this case Today's order should be communicated to the CHB officials by the Advocate appeaing for CHB' Submlssion on behalf of APPellant

40. Submission has been made on behalf of the appellant that the auction purchaser, respondent no.2 is not entitled to have engress or ingress to his land of Dag no.332 through the land belonging to Aarburgreen state LLP in the three Dag no.s 3325, 3329 & 3334. lt has further been submitted that application being TRC lN34Ol2O22 filed by respondent no.2 was heard and d q" etailed .-) ) submissions were made on behalf of both the parties. lnstead of disposing the lA, leamed

Appea l/03/2023-DRT-2/KOL R.O gave various directions without any prayer for the said direction. Duty of the R.O was to adjudicate the matter of dispute on the basis of evidence and it was beyond his jurisdiction to collect or grant the evidence. He has even given without any iustification direction to the authorities and guards of Aarburgreen to allow the receiver and R.l of BL& LRO to enter their premises.

41. Further it has been submitted that learned counsel for the appellant no.1 had produced before the learned R.O letter dated 06.06.2023 from Depuly Secretary, Government of West Bengal to Chairman Rajpur, Sonarpur Municipality with an enclosure of a copy of the petition filed by shri Arjun singh Mehta for declaring 20 feet wide road as public road. with regard to this subject the R.O has also issued direclion which is as follows - "ALSO NOTICE BE ISSUED TO THE CHAIRMAN, RAJPUR SONARPUR MUNIC\PAL|TY (Address at i Netaii Subhas Chandra Bose Road,Harinavi,Kotkata,WestBengal,PlN-700148)tofileadetailrepotl with municipal rutes by himlher to this Tribunal with reference to the Petiton of Sn Ariun Singh Mehta of Aarbur green to Letter no'484/ UDMA- 19011(11)/42021-GENL Sec-Dept. of UDMA Dated 06'06'2023 of the Deputy Secretary, to the Govemment of West Bengal the Chariman, Raipur Sonarpur Municipality has to explain in his repoft whether 'Declaration of public Road is feasible or not .......-.-" The passing of the above directions is completely beyond the jurisdiction of the R.o.

42. lt has been submitted that in the successive sale deeds right, nowhere it was mentioned that there was any pathway existing on the land of Dag no. 3325, 3329 & 3334 up to the land of Respondent no.2 i.e., Dag no.3332 purchased in auction. Submi ion on behalf of ResDondent No.2

43. per contra it has been made out on behalf of the respondent no.2 that even if there was no mention in the deeds for use of the property of the appellant for access to the property of auction purchaser that cannot be a reason to hold that there was no grant as grant could be implication as well. ln support of the contention iudgments passed in the matter of Shri Swayam Prakash Ashramam v/s G. Ananda Velli Amma (210) 2 SCC 689 and also one iudgment of Hon'ble catcutta High court passed in Kali Pad Bose & ors. V/s Fann Bhushan Roy (AlR 1924 CAL 363). It has been submitted that there was a pathway existed before from the land of the appellant to the land purchased by the respondent no.2 of Dag no.3332.

44. lndian Easement Act is not applicable to the State of West Bengal to support this contention. Learned counsel for the appellant referred to judgment passed by Hon'ble Calcutta High Court on 25.02.2019 Rita Rai (Rumba) & Ors. V/s Prakash Tamam.

45. Part Vl, The lncome Tax (Certifcate Proceedings) Rules, 't962 pertains to the resistance or obstruction to deliver of possession to purchaser. Rule 41, 42 &43 ofthe said provision reads as follows -

17. Resistance or obstuction fo possessioa of immovable property i

(1) Where the purchaser of immovable propafiy sold in exacution of a ceftificate is resisted or obstructed by any person in obtaining possession of the propedy, he may make an apptication to the Tax Recovery Officer complaining of such resistance or obstruction within thirty days of the date of such resistance or obstruction- A,{ $u

L7 Appea l/03/2023-DRT-2/KOL

(2) The Tax Recovery Officer shall fix a day for investigating the matter and shall summon the pafty against whom the application is made to appear and answer the same.

42. Resistance or obstruction by defaulter :- Where the Tax Recovery Officer is satisfled that the resistance or obstruction was occasioned without any just cause by the defaufter or by some other person at his instigation, he shall direct that the applicant be put into possession of the propeiy, and where the applicant ls stll/ resrsfed or obstructed in obtaining possesslon, the Tax Recovery Officer may also, at the instance of the applicant, take sleps to put the applicant ihto possess,bn of the properv by removing the defaulter or any person acting at his instigation.

43. Resistance or obstruction by bona fide claimant :' Where the Tax Recovery Officer is satisfied that the resistance or obstruction was occasioned by any person ( other than the defaulter) claiming in good faith to be in possession of the propefty on his own account or on account of some person other than the defaufter, the Tax Recovery Officer shall make an order dismissing the application. Let the above provision be examined whether it applicable to the facts of the case or not

46. From perusal of the order passed by R.O on 30.10.2000 it appears that a petition has been filed by the learned Receiver Mr. K.K Halder stating therein that " a property with Dag no. 3332, Khatiyan No. 879 which belongs to Certificate C.D no.6 at Mouza Jagaddalpur South 24 Parganas and the same has been inventorised by him and he has taken symbolic possession. Let the report so filed be kept on record." He further passed the order to issue a formal order of attachment in respect of the property of Certificate Debtor Dag no. 3332, situated at Mouza Jagadallpur South 24 Parganas and also directed to affix a copy of the order of attachment on the notice board of the Tribunal. Learned Receiver was also directed to cause the copy of attachment to be affixed on the conspicuous part of the property and to file a report in this on behalf on the next date. ln compliance of this order relating to this property, learned Receiver submitted report on 19.12.2000. The report is hand written endorsed on his letter head. This report is available on record.

47. As per Report, he visited the site ofthe property at Mouza Jagaddalpur, south 24 Parganas under Rajpur Municipality on 16.12.2000. At 11 a.m he affixed copy of the order of attachment issued on 30.1O.2OOO, on the entrance of the aforesaid proporty being a plot of land measuring 22 sataks of Dag no.3332. Earlier in his report dated 30.10.2000 he described the property to be surrounded "By a broken wall wlth a gate". Therefore, the property which had been attached has a definite boundary and the order of attachment was affixed on the gate.

48. Rule 41 , 42 & 43 pertain to the immovable property sold in execution is resisted or obstructed, the purchaser may make an application. Therefore, resistance should be with regard to the property attached and sold. ln the fact of the case, this Rule does not applies. He has directed the R.l to show all the existing and possible passage with length and width in the sketch, if the mini commercial vehicle is driven out from the standing point to the road available outside and also all the existing and possible passages via gates of premises occupied by developer MULTICON.

49. Calling for such report is completely uncalled for. The learned R.O went further and directed the authorities and guards of MULTICON and AARBURGREEN to allow the receiver and R.l to enter lfeir premises for necessary work as directed. Again he further went on to pass an order for 7\ a a'o

Appeat / 03 I 2O23-DRT-2/KOL issuance of a notice to the Chairman, Rajpur, Sonarpur Municipality to file a detailed report with Rules with reference to the petition of Shri. Arjun Singh Mehta of AARBURGREEN and also to letter dated 06.06.2023. The Deputy Secretary to the West Bengal and to Chairman, Rajpur, Sonarpur Municipality has to explain in his report whether 'declaration of public road is feasible without the consent of the private land owners of the respected Dag no.s through which the 20 feet wide road adjoining the Dwarir Road will pass'. Both the directions are again beyond the jurisdiction of the R.O under the RDB Act.

50. The appellant are title holders of the property of Dag nos. 3325, 3329 & 3334 and the leamed R.O cannot explore the feasibility of any pathway going through this land. He is under obligation to act under the RDB Act and Rule 41,42 ol The lncome Tax (Certificate Proceedings) Rules 1962, can be invoked only in case of resistance or obstruction in obtaining the possession of the property sold.

51. Respondent no.1, State Bank of lndia in its affidavit-in-opposition or in written notes of argument has made no reference to these development and has made no statement regarding the action of the R.O

52. The R.O cannot assume the role assigned to other forum. lt will only cause struc{ured integrity to fracture. lt cannot assume the primary jurisdiction of the other forum. lt has to exercise its jurisdiction strictly within the parameters of Section 25 lo 28 of the RDB Act. Keeping only in view the object of the Act which is only "Recovery". Tribunal is only concemed with enforcement of security interest. Examination of remedies and scheme of the Act becrmes necessary to determine legislative intent.

53. I do not find reference of any pathway in the said notice or in the registered sale certificate. There is also no reference of the pathway in the previous sale deeds as shown by the appellant right from the 1956 to date. Afier purchase of the property in 2006 till 2022lhe question of pathway was never raised. His silence for such a long time and delay in approaching the appropriate forum weighs heavily against him. Though, Tribunal is not under obligation to delve deep into the question of easement, it does not find any reason to deliver any easementary right for ingress or egress existing through the land of Dag no.3325, 3329 & 3334. il. One C.O no.3151 of 2023 had been prefened by appellants of this case of this appeal. One Aarburgreen Estates LLP and ulticon Prestige Residences LLP. lt had been filed against the respondent no.2 as well as against the State Bank of lndia who are respondent here. That revision was preferred against the order dated 01.09.2023 passed by learned R.O, DRT -2 Kolkata in the instant TRC 191 ol 2OO1. The order was passed on an application filed by auction purchaser / respondent no.2 alleging obstruclion posed by the appellants making the plot no.3332 (purchased plot inaccessible). lt was passed during the pendency of this appeal. The Recovery Officer took the application of respondent no.2 for hearing. He stayed the construction going on in the properties owned by Aarburgreen and development by iiulticon till the further order. He further issued direction to inspect the status quo possession of the property with 15 days gap and submit one report after every inspeclion. The Officer in-charge of Sonarpur was directed to give adequate police force to the receiver, BL & LRO was directed to provide one senior Rl who was to file fresh sketch map showing the path of ingress or egress to the property of the auction purchaser. Mr. Subash Chowdhury and officials of Aarburgreen & Multicon was directed to deposit cost of Rs. 1 lakhs in the account of the DRT, Bar Association, Kolkata. Ar{ b.b

t9 Appeal / O3 I 2O23-DRT-2/KOL

55. That revision application was allowed. The impugned order was set aside by the iudgment dated 21.05.2024 after holding that leamed R.O had passed an interim order which was in the form of granting a formal relief. lt was directed to hear the application afresh on the evidences and on the issues discussed in the judgment. Such allegations shall be entered into by the Recovery Officer after disposal of the pending appeal and subject to the result of the appeal. The impugned order dated 01.09.2023 as well as the earlier order under challenged before this appellant form daled 14.07.2023, both have been considered on a larger spectrum by the Hon'ble Court.

56. That order dated 21.05.2024 passed by Hon'ble High court in c.o no. 3151 of 2023 was challenged in SLP before the apex court. The Hon'ble apex Court did not interfere with the order passed by Hon'ble Court and made it clear that pending appeal will be heard on its own merit. Both the orders including one passed by the Hon'ble High Court in C.O no.3151/2023 are being referred only to bring the fact that order dated 01.09.2023 passed by Ld.RO in the same proceeding was set aside. This order can only be considered as a continuation ofthe order passed earlier on 14.07.2023 which is the subiect matter of this appeal.

57. The easement is not apparent. The succession of sale deeds do not also refer to any such rights. The easement is not apparent or continuous from the fact of the case. The auction purchaser had purchased the land of Dag No.3332 in the year 2006. The property attached had a broken boundary with a gate; upon which attachment order was affixed. Prima facie, I do not find any easementary right. Moreover, u/S 33 of the Easement Act 1882, if applicable to the Stale of West Bengal, a suit has to be instituted for any such disturbance of that rights.

58. ln view of the discussions made above and the facts as spelled through the evidences, I do not find any merit in the issue of easementary right. Therefore the Point No.2 & 3 are decided against the Respondent.

59. On 131O5t2O25 at the time of hearing one application being lA No.1197/2025 was tiled online and hard copy has not been filed. lt has been filed for directing the appellant to conclude the submission and also to pass an order of injunction to stop construction of any nature. On the next date fixed on 21105t2025 argument had been concluded and parties were directed to file written notes. On O7lO7l2O25, the respondent no.2 sought time for filing written notes. On 'l4lo7l2i25 written notes had been uploaded and it had been submitted that during the course of the day written arguments would be filed. On that date i.e. 14t0712O25 the matter was reserved for judgment. 1N119712025 was not pressed. INTERFACE wlTH RERA RERA is ,sector Specific Legislation'. lnter play between RERA Act, RDB Act, SARFAESI Act and also the other Acts is paramount for all the stake holders navigating complex, web of Real Estate transaction. The interplay results is no lesser than completely a different but evolved jurisprudence.

60. Essentially a project is mortgaged in favour of a Financial lnstitution as a security against debt raised by such developer. The allottees also deposited the amount with the developer. Therefore, the developer is answerable to both the F.l. and the allottees. Between F.l. and promoter for enforcement of the security interest, the concerned DRT has the jurisdiction under SARJTAESI ACURDB Act. For grievances of the buyers vis-a-vis promoter, the concerned RERA >5 q

APPealloll2oz3'DRT-2/KoL authority has the jurisdiction. ln this case there is a third dimension. The respondent no 2 seeks rightofpathwayasaneasementaryrightoverthelandpurchasedagainstwhomrecovery proceeding was going on. The R.O. by the orders and directions vide the impugned order dated l4toTl2oz3appearsexploringthepossiblepassageasapathwaytothelandofDagNo.3332 purchased in auction in the year 2006 through the land purchased by the appellant no.1 over which development construction is going on.

61. Therefore, proceeding under RDB Act for recovery and RERA have an impact on the development of the project. To regulate the growing Real Estate sector, Real Estate (Regulation & Development) Act, 2016 was enacted. lt mandates registration of the projects. lt provides criteria of Registration (Section.4), Grant of Registration (Section-s), Revocation of Registration (Section- 7). lt also provides func{ions and duties of the promoters' the proiecl speciflcation and adherence to sanc{ion plans, the rights and duties of the allottees as well'

62. From perusal of copy of development agreement dated 19to8,12022 (Annexure-'c' to Memo of Appeal) and copy of Power of Attorney executed in favour of MULTICoN daled 2610812022 (Exhibit - D to Memo of Appeal), it appears that there is a miscellaneous provision appearing at 15.3 of development agreemenl that after sanction of the building plan the developer was entitled to create a charge on its share of realisation in favour of the BanUF'|. and to raise construction finance up to maximum limit of 15 crores. Therefore, credit facilities up to Rs. 15 crores has to be taken from a bank as a builder finance.

63. The bank, financing the project, is also in a sense considered as assignee of the promoter under section 2(ZK) of the RERA Act. The allottees/home buyers are also considered as'Financial Creditor' under the lBC.

64. section 35 0f the sARFAESI Acl.2oo2 and section 34 0f the RDB Act, 1993 are similar worded. Both have the overreading effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of law. Section 89 of the RERA Act, 2016 also provides that 'Acl' shall have oveneading effect' Therefore, being the subsequent legislation it shall have primacy and will prevail over any other legislation, particularly when it comes to the protection of rights of home buyers.

65. The matter was set at rest by Hon'ble Apex court while disposing a special Leave To Appeat(c) No. 1861-1871 of 2022 challenging the judgement of Hon'ble Rajasthan HC passed in "Union of lndia" case. By order daled '14.02.2022 it has been held that in the event of conflict with SARFAESI Act, provision of RERA Act will prevail. Now the project is completely under the regulation of RERA Authority. As per photographs filed by the respondent no'2, the project ,Prestige Residence' appears to have been substantially completed. The buyers are in "technical possession' of their units. They cannot be subiect of other proceedings. They are the operational creditors having first charge. As the sale of units helps the promoter to run it as 'ongoing concern" the units cannot be said to be only the assets of the promoter'

66. The buyers cannot be left lurching in the procedural legal complexity. The problems must be addressed in the existing framework which ensures project completion, protect the home buyers, enhancing their confidence and at the same time strengthen the real estate ecosystem' 67 . Therefore now the project "Prestige Residence" is well within RERA jurisdiction. / g a. $..

CONCLUSION

2L Appeal I O! I 2O23 -DRT-2lKOL From the discussions made above and on analysis of the matter, conclusion can be summarized as under-

1. Transfer to Aarburgreen, the Appellants, are valid and good and are not illegal with regard to Dag Nos.3325, 3329 and 3334. The recovery proceeding affecting these Dag Nos. are wholly unwarranted.

2. Therc was no right of ingress or egress over the above property. The question of declaration of easement right is not within the jurisdiction of Ld.RO. He has completely over stepped his jurisdiction.

3. The 'Prestige Residence' coming up on the above land are to be regulated only under the RERA authority under Real Estate (Regulation & Development) Act, 2016. Ld.RO has no jurisdiction to intermeddle with the lands upon which the project is coming up. With the above conclusion the Tribunal leave the Respondents to pursue their individual relief, if any, before appropriate forum. ORD RED Appealr3r2023 is allowed on contest The order and the directions daled 14.07.2023 passed in TRC/191/2001 by the Ld.RO are set aside. The Ld.RO shall enter into the recovery proceedings in accordance with law. All pending lAs, if any also stand disposed off. No order as to costs. File be consigned to Record Room. This order is dictated and corrected by the undersigned and pronounced on this the 08th day of August, 2025. Copy of the Order be uploaded in the Tribunal's Website. t,b;-J i'60 r" o2r (Arbind M hav) Presiding Officer DRT - 2, Kolkata aky