Rita Bhatia LOD

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IN THE CITY CIVIL AND SPECIAL COURT AT MUMBAI

MISC. APPLICATION NO. 208 OF 2021


IN
SPECIAL CASE NO. 441 OF 2020
IN
F.I.R. NO. 319 / 2021 (Chunabhatti Police Station)

Rita Bhupender Bhatia …Applicant

In the Matter Between

State Of Maharashtra. …Complainant


V/s
Shanawaz Salim Shaikh & Ors. …Respondents

Case Notes
1. Description of Parties:
Rita Bhupender Bhatia - Appellant/Applicant
State Of Maharashtra – Complainant
Shanawaz Salim Shaikh – R.1
Haroon Abdul Sattar Shaikh – R.2
Mukesh Dattatraya More – R.3
2. Appearing For: Applicant
3. Issues: Whether Chunnbhati Police Station has the right to attach the property
belonging to the Applicant?

4. Dates & Events:


Sr. Date Particulars Pleadings Ex/Pg
No. No.
23.09.2014 Registered Sale Deed in respect of flat 1(1) A/10
situated at A/1601, Building Casa Ceilo
Project No. 11, lakeshore Green Project,
sixteeth Floor, Villahe Khoni, Taluka
Kalyan Dist. Thane Area 374 Sq. ft.
(Carpet area) Palava Phase-II.
A 2 and his wife had floated Mount Mary 2(2)
Urban Co-Operative Credit Society Ltd.
promising handsome profits on
investment of money.
May 2018 Applicant and her husband, Mr. 2(2) B/142
& Bhupinder Bhatia and her son Mr. Rohit
July 2019 Bhatia have invested amount of Rs.
97,95,000/- and Term Deposit certificates
were issued in their name.
17.01.2021 After negotiations, Applicant agreed to 2(3) C/156
sell their said residential Premises to the
wife of A2 for total considerations of Rs.
75,00,000/- and executed MOU between
Applicant and Accused No. 2’s wife Mrs.
Nilofer Haroon Rasheed Shaikh.
A2’s wife handed over 10 Post-dated 2(4)
cheques in name of the Applicant in
respect of payment of consideration
amount of Rs. 75,00,000/-
Out of the total ten cheques three 2(4) D/163
cheques amount in to Rs. 23,00,000/-
were encased by her.
A2’s wife informed to the Applicant that 2(4)
the A 2 and herself were suffering from
financial difficulty and requested not to
deposit the remaining seven cheques.
Sept. 2019 After period of 5 Months since 2(4) D/163
encashment of third cheque, the
Applicant deposit four cheques out of
remaining seven cheques amounting to
Rs. 26,00,000/- in respect of sale
consideration of the said flat,
subsequently to the shock and surprise to
the Applicant all four cheques returned
unpaid.
Accused gave false assurances that they 2(5)
had every intention of completing the
transaction.
11.10.2019 Applicant issued legal notice to the 3(6) E/169
Accused’s wife calling upon her to make 3(8)
payment of balance consideration amount
within 15 days in the event of the
Accused’s wife fails to make payment
the MOU will henceforth stand
cancelled.
Applicant’s husband & her son registered 3(9) F/175
05.09.2019 Complaint and in pursuance of the same,
25.02.2020 F.I.R. No. 375/2019 at Bhandup Police
Station, against the A2 & her wife.
Investigation is completed and Charge-
sheet filed before sessions court.
MPID/1999/27/2019 is pending before
Sessions Court, Mumbai
21.01.2021 Applicant had received notice from 3(10) G/177
Respondent calling upon her to refund
amount of Rs. 23,00,000/-
A2 & his file are liable to refund Rs. 4(11)
74,95,000/- which is the balance amount
invested by the Applicant & her family in
the Credit Society of the Accused
25.01.2021 Applicant’s husband received call from 4(12) H/175
Chunabhatti Police Station for the
investigation in connection with the
present case. On the same day
Applicant’s husband was handed over
notice U/s 91 of Cr. P.C copy of said
notice
29.01.2021 Applicant came to know that during the 4(13)
hearing the Accused’s Advocate has
informed that the 2 properties including
the said flat is owned by the A. 2 have
not been secured and that the IO has not
received all the documents in respect of
said properties. The submission is
completely false and baseless.

Letter dated 12.10.2023 EX 5


Reply of Collector dated 28.08.2023
Say of the CA dated 11.03.2024
Additional Say of the CA dated EX 6
13.08.2024
Provisions:
4. Attachment of properties on default of return of deposits.
(1) Notwithstanding anything contained in any other law for the time being in force,—
(i) where upon complaints received from the depositors or otherwise, the Government
is satisfied that any Fianancial Establishment has failed,—
(a) to return the deposit after maturity or on demand by the depositor; or
(b) to pay interest or other assured benefit; or
(c) to provide the service promised against such deposit; or (ii) where the Government
has reason to believe that any Financial Establishment is acting in a calculated manner
detrimental to the interest of the depositors with an intention to defraud them; and if
the Government is satisfied that such Financial Establishment is not likely to return
the deposits or make payment of interest or other benefits assured or to provide the
services against which the deposit is received, the Government may, in order to
protect the interest of the depositors of such Financial Establishment, after recording
reasons in writing, issue an order by publishing it in the Official Gazette, attaching the
money or other property believed to have been acquired by such Financial
Establishment either in its own name or in the name of any other person from out of
the deposits, collected by the Financial Establishment, or if it transpires that such
money or other property is not available for attachment or not sufficient for repayment
of the deposits, such other property of the said Financial Establishment or the
promoter, director, partner or manager or member of the said Financial Establishment
as the Government may think fit.
(2) On the publication of the order under sub-section (1), all the properties and assets
of the Financial Establishment and the persons mentioned therein shall forthwith vest
in the Competent Authority appointed by the Government, pending further order from
the Designated Court.
(3) The Collector of a District shall be competent to receive the complaints from his
District under sub-section (1) and he shall forward the same together with his report to
the Government at the earliest and shall send a copy of the complaint also to the
concerned District Police Superintendent or Commissioner of Police, as the case may
be, for investigation.
5. Appointment of Competent Authority:
(1) The Government may while issuing the order under sub-section (1) of section 4,
appoint any of its officers not below the rank of the Deputy Collector, as the
Competent Authority, to exercise control over the monies and the properties attached
by the Government under section 4, of a Financial Establishment.
(2) The Competent Authority shall have such other powers as may be necessary for
carrying out the purposes of this Act.
(3) The Competent Authority shall, within thirty days from the date of the publication
of the said order, apply to the Designated Court, accompanied by one or more
affidavits stating the grounds on which the Government has issued the said order
under section 4 and the amount of money or other property believed to have been
acquired out of the deposits and the details, if any, of persons in whose name such
property is believed to have been invested or acquired or any other property attached
under section 4, for such further orders as found necessary.

Judgements:
1. (1967) 1 SCR 293: AIR 1967 SC 744

Ram Baran Prasad V/s Ram Mohit Hazra & Ors


Para 10. “Transfer of Property Act. Section 54 of the Act states that a
contract for sale of immovable property "does not, of itself, create any interest
in or charge on such property"
2. (2012) 1 SCC 656
Suraj Lamp & Industries Private Limited V/s State of Haryana & Anr
Para 18. “It is thus clear that a transfer of immovable property by way of sale
can only be by a deed of conveyance (sale deed). In the absence of a deed of
conveyance (duly stamped and registered as required by law), no right, title or
interest in an immovable property can be transferred.

Para 19. “Any contract of sale (agreement to sell) which is not a registered
deed a of conveyance (deed of sale) would fall short of the requirements of
Sections 54 and 55 of the TP Act and will not confer any title nor transfer any
interest in an immovable property (except to the limited right granted under
Section 53-A of the TP Act). According to the TP Act, an agreement of sale,
whether with possession or without possession, is not a conveyance. Section 54
of the TP Act enacts that sale of immovable property can be made only by a b
registered instrument and an agreement of sale does not create any interest or
charge on its subject-matter.

3. 2010 SCC Online Bom 1808

Sudhir Vasant Karnataki V/s St of Mah & Ors


Para 110 . To sum up, we answer the reference thus:
Q.(a) Whether the words "any property" used in subsection (1) of Section 102
of the Criminal Procedure Code, 1973 would mean to include "immoveable
property”
Ans. We, therefore, hold that the expression "any property" used in sub-section
(1) of Section 102 of the code does not include immovable property. Question a
is therefore, answered, in the negative.

Q.(b) Whether a police office officer can take control of any immoveable
property which may be found under circumstances which create suspicion of
the commission of any offence? Ans. No.

Q.(c) Which of the above two judgments lay down correct law in respect of the
powers of a police officer to seize any immoveable property under Section 102
of the Code of Criminal Procedure?

Ans. The judgment in Kishore Shankar Signapurkar v. State of Maharashtra


(supra) and not that in Bombay Science & Research Education Institute v.
State of Maharashtra (supra) lays down the correct law and the judgment of
the Supreme Court in State of Maharashtra v. Tapas D. Neogy (supra) has not
been correctly interpreted in Bombay Science & Research Education Institute
v. State of Maharashtra (supra). This question is, therefore, answered
accordingly.

Q.(d) Whether the law laid down by the Supreme Court in case of State of
Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 is restricted to seizure of
bank accounts only or it can be extended to immoveable property also, as
interpreted by the Division Bench in the case of Bombay Science and Research
Education Institute v. State of Maharashtra, 2008 All M.R. (Cri.) 2133?

Ans. The law laid down by the Supreme Court in State of Maharashtra v.
Tapas D. Neogy (supra) is restricted to seizure of bank account and cannot be
extended to immovable property also, as interpreted by the Division Bench in
Bombay Science & Research Education Institute v. State of Maharashtra
(supra). On pronouncement of the judgment, Mr. Gadkari, the learned A.P.P.,
submitted an oral application for stay.

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