HIGH COURT OF DELHI
Paam Pharmaceuticals (India) (P.) Ltd.
versus
India SME Asset Reconstruction Company Ltd.
CRL. MC NO. 867 of 2012 AND CRL. MAS 3032-33 OF 2012
CRL. MA NOS. 4079 & 4080 OF 2012
April 9, 2012
ORDER
Crl. MA 4080/2012 (exemption)
1. Exemption allowed subject to all just exceptions.
Application stands disposed of.
Crl. MA 4079/2012
1. This is an application preferred by the petitioner/applicant for restoration of the petition which was dismissed in default on 22.3.2012.
2. Heard. In view of the submissions made therein, the application is allowed and the petition is restored to its original number.
3. The application stands disposed of.
Crl. MA No. 867/2012 & Crl. MAs 3032-33/2012
1. This is a petition under Section 482 Cr.PC assailing the order dated 18.2.2012 passed by learned ASJ whereby the revision petition against the order dated 19.7.2011 passed by learned MM was dismissed.
2. The Small Investment Development Bank of India (SIDBI) filed a complaint against the petitioner under Section 138/141/142 of Negotiable Instruments Act on account of dishonour of two cheques of Rs. 20 lac and Rs. 2.5 lac and for non-payment of the cheques amounts despite legal notice dated 4.9.1997. The petitioners were summoned in the said complaint case as accused. In the meanwhile, SIDBI executed a Deed of Assignment in favour of the respondent India SME Asset Reconstruction Company Ltd. (ISARC) on 15.4.2010. The ISARC company was registered with RBI as securitization and reconstruction company under Section 3 of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) with the main object of expediting the recovery of amount for Non-Performing Assets (NPA) of banks/financial institutions by adopting measures of recovery or reconstruction by exercising powers under the said Act. Vide the said Assignment Deed, the complainant SIDBI had assigned all its rights, titles, interests and benefits in respect of its claims against the petitioners with security and interest therein. The ISARC filed an application before the Court of MM for continuing the aforesaid complaint against the petitioners and its substitution as a complainant under Section 5(2) of SARFAESI Act. It was stated that under the circumstances, ISARC had entered into the shoes of the complainant/SIDBI and thus entitled to continue the complaint. The said application was allowed by learned MM vide order dated 19.7.2011 and accordingly ISARC was substituted as complainant in place of SIDBI. The said order was challenged by the petitioners before the learned ASJ by a revision petition which came to be dismissed vide the impugned order dated 18.2.2012.
3. The impugned order is assailed mainly on the grounds i.e. firstly, that what could be acquired through assignment was the financial assets, which would mean that certain facilities of financial nature extended by assignor and that the chqeue was not a financial asset or a specie thereof. Secondly, that the assignment which was recognized under Order 22 Rule 10 CPC entitled the assignee to pursue its remedy under the civil law and not in the proceedings of criminal nature. It was submitted that the proceedings of the criminal nature do not come within the ambit of Section 5(4) of the SARFAESI Act.
4. I have heard learned counsel for the petitioner. Both the points which have been raised in assailing the impugned orders of the courts below do not have any merit. The relevant provisions of law under SARFAESI Act would be required to note. These read as under:
“5. Acquisition of rights or interest in financial assets.—(1) Notwithstanding anything contained in any agreement or any other law for the time being in force, any securitization company or reconstruction company may acquire financial assets of any bank or financial institution—
