Allowed

Aarburgreen Estates LLP v. State Bank of India

DRT8 Aug 2025APPEAL/3/2023

Case brief

AI extract

What is this about?

The Tribunal allowed the appeal, holding that property transfers during pendency of recovery proceedings were valid as attachment did not cover the specific lands. It ruled the Recovery Officer lacked jurisdiction to adjudicate easement disputes or interfere with RERA-regulated construction projects.

What did the court decide?

Impugned order dated 14.07.2023 is set aside. Recovery proceedings shall continue in accordance with law. All pending applications are disposed of.

Aarburgreen Estates LLP versus State Bank of India — Writ and Judicial Review | DRT (2025)

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Page No.

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KOLKATA EEBTS REGOVERY TRIBUNAL NO. 2

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ORDER SHEET
AARBURGREEN
(Gondnuedon)
ESTATES LLP
APPEALT3/202,
c.xxo. ln;)ffi Vr
IN
QTATtr RANK F INDIA
1N119712025
Ollcr tflon silh
O.b tN205812024 d.t rtd dd.d
d
IN Ord.rul0r SlgneUrr E$tuol
Qdcr ., tff.trt
Diary No.903/2022
ioa!ryy
Counsel for the parties
Mr. A. K. Dhandhania, Sr. Counsel
50 Mr. Souritra GangulY
08.08.2025 Ms. Sweta Mishra
Ms. Easha Manchanda ... For the Appellant
Ms. Mekhala Kanji
Ms. Gitashree Chattopadhyay... Forthe Respondent Ban
Mr. Nimish Mishra
Mr. Abir Mondal . .. For the Respondent No 2
Judgment pronounced in open Court.
Appeal No.3 ot 2023 is allowed and disposed of o
contest.
No order as to costs.
Judgment in separate sheets of 21 pages has bee
attached.
Returned back the LCR.
Order be uploaded in the Tribunal's website.
toffin^onurl
Presiding Officer
KB DRT-2, Kolkata

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1 Appe al I 03 I ZO23^{-D RT-2/KoL}

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DEBTS RECOVERY TRIBUNAL^{- 2, KOLKATA}

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JeevanSudha Bldg.,^7th Floot,42lC,^{J.L. Nehru Road, Kolkata} -⁷⁰⁰⁰⁷¹

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Before Shri Arbind Madhav. Pres^{idino Officer}

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Aooeal. No.O3 ot 2023

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ln the matter of

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1 Aarburgreen Estates LLP, having its registered office at 229,^{AJC Bose Road,1"t Floor,} Crescent Tower, Kolkata, Pin^- 700020

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2 Itlulticon Prestige Residences LLP, having its registered office at^{Mansarovar, 38,} Camac Street, Park Street, Kolkata, Pin^- 700016

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Appellants

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-Versus-

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1 State Bank of lndia, SARB Kolkata, 1, Middleton Street, Jeevandeep Building, 11h Floor, Kolkata, Pin - 700071

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2 Subhas Chowdhury, Son of Late Sudhir Ranjan Chowdhury, residing at 1976, Garia Main Road, Tentultala, Kolkata, Pin - 700084

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3 Textile Products & Processing Company, having its Office at 488, Dr. Suresh Sarkar Road, Post Office - Linton Street, Police Station- Beniapukur, Kolkata, Pin - 700014

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4 Dalia Nandi, Daughter of Late Nirmalendu Guha Thakurta, residing at 48B, Dr. Suresh Sarkar Road, Post Office - Linton Street, Police Station - Beniapukur, Kolkata, Pin - 700014

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....... Respondents

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Ld. Counsel for the parties. For the SARFAESI Applicant Mr. A.K Dhandhania, Sr. Counsel For the Respondent Bank Ms. Mekhala Kanji For the Respondent no.2 Mr. Nimish Mishra

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Mr. A.K Dhandhania, Sr. Counsel

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JUDGMENT

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Reserved on 14.07.2025 Delivered on 08.08.2025

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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.

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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.

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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 19 %

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Ap^pe al I 03 I 2023 -DRT-2lKO L

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Thousand Seven Hundred Only/-) . The certificate^{and confirmationof sale was issued in favour of} Respondent No-2 on 25.09.2006. The amended copy of sale^{certilicateand confirmationwere} issued on^'19.09.2014. The sale certificate was^{executedand registeredin favour of Respondent.2} on 10.03.2017 by the receiver appointed^{by Ld.RO.}

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2(ii). The further case of the appellant is that the^{AppellantNo.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 planin} August 2022 from Rajpur-sonarpur Municipality being^{sanction plan no.90/CB/25l46for} construction of two towers, twelve storied and^{fifteenstoried respectivelywithsaleablearea of} 1,62,000.sq.ft. consisting of 141 residential flats and^{one commercial spacewith a project cost of} Rupees more than 30 crores. Flats were booked.

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2(iii). The Respondent 2, who^purchased a small^{plotof adioining landin 2006, filed an} application before Ld.RO on^13.12.2022 alleging^{that appellantswere blockingthe ingressand} egress over his^{purchasedplot} of^{land.The impugned orderdated '14.07.2023, the Ld.RO issued} various directions affecting the^interests of the^{appellant. Hencethis appeal has been filedby the} appellants.

¶31

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 448correspondingto LR Dag} Nos.3397,3401 and 3406 all recorded in LR^{KhatianNo.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 appellantas the 'SaidPremises') by} seven deeds of convenyance.^{The particulars are :-}

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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.}

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The said land was^purchased by Dream^{Tower Kolkata Pvt Ltd. from NirmalenduGuha} Thakurta, Niharendu Guha Thakurta,^{Sukhendu GuhaThakurta and Sarojendu GuhaThakurtaby} a deed of sale dated 12.04.2013.

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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.}

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c. By deed of sale dated 10.05.2016 further^{purchased 15.785 Sataks fromSukhendu} Guha Thkurta for a consideration of^{Rs.49,87,500.}

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d. By deed of sale dated 10.05.2016^{againpurchased 15.785 Sataks from Niharendu} Guha Thakurta for a consideration of^{Rs 47,75,000.}

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e. By deed of sale dated 20.05.2016^{againfurtherpurchased '15.785 Sataks from} Nirmalendu Guha Thakurta^{fora consideration of Rs.52,15,000.}

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f. By deed of sale dated 13.12.2016 further^{purchased17.44 Sataks from Chaitali Guha} Thakurta , Saptadeep Guha^{Thakurta and Jaita Basak at a total cost of Rs. 80'25,000.}

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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.}

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4"o

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Appeal/03/2023-DRT-2/KoL

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3(ii). By this way appellant^{1 purchasedthe above propertiesfora total considerationof Rs} 3, 65,27,500

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The appellant no.1 entered^{into a DevelopmentAgreementdated 19.08.2022 with} Multicone Prestige^{Residences LLP (Appellant No.2) for developmentof the land at its own cost as} per sanc{ion plan by Rajpur-sonarpur^{Municipality on sharing basis betweenAppellant1 and 2 al a} ratio of 30% and^{7Oo/o respectively. ln the said development agreement there were mentioning of} building sheds and structures^{measuringabout 2230sq.mtrs.whichhad been demolishedby} appellant 2 after execution^{of the agreement. sanction for a building plan was applied for. The} purchaser Aarburgreen Estates LLP^{hadto file an affidavitof boundary declaration, whichwas} affirmed on 15.05.2018^{beforethe Raipur-Sonarpur Municipality(Annexure"E' to the memoof} appeal). Another affidavit^{had also been affirmedon 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^{withvacantadjoininglandincludingthe land purchasedby Subhas} Chowdhury, the Respondent^2.

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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^{of14',1flatSand one commercialspace. Aftersanction construction was} started. The^{projectwas given wide publicity. seven flats were alreadybooked.The name of the} purchaser is given in the memo of^appeal.

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The further case as^{madeout in the memo of appealis that a noticedated15.12'2022was} received from Ld.RO^{of this Tribunalasking Mr.Satyajit Barma,a partner,to appear in person} before the Ro on^{22.Q2.2O23 and provide documents for the propertyin his possession on the} ground that he blocked ingress^{and egress of the propertysold by DRT to Mr Subhaschowdhury'} The^property mentioned^{in the notice was as follows:-}

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,,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);WestBengal''}

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6.AppellantlappearedbeforetheLd.Ro.Ld.AdvocatefortheAuc{ionPurchaser Mr.Subhas chowdhury^{submittedthat the aforesaid landof totalarca of 22 decimal had been} purchased on 11.07.2006, amended^{sale certificateand confirmationof sale was issued on} 19.09.2014 and the^{ingress and egressof the property was blocked. lt was madeout that} certificate^{Debtors(cD) illegally sold theirpropertiesto appellant1 . The receiverhad submitted a} report on local^{enquirythat a structureon plot numbers 3325,3329,3333,3334 and3332 had been} demolished and a^{housing project namely 'MulticonPrestigeResidences'is under construction'} on 23.02.2023 the^{appellant 2 receiveda noticedirecting to appear in person on 01 03'2023' On} that day appellant^{1 and 2 appeared.Ld Ro was pleasedto pass an order and issued directionfor} issuance of notice to^{BL and LRO, Sonarpurto remain presenton thenextdate andfile reportof} Rl Mr.Atanu^{Bhattacharya relatingto demarcation and identification of the property of the Auction} purchaser on 24.01.2023 and also directed the directors^{of the appellant companyto remain} prtE6nt on the next date

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Appeat I 03 I 2023^-DRT-2/KoL

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On 24.03.2023, both the appellants^{filed separate applicationswith a prayerto servethe} copy of the application filed by the^{purchaser and for an opportunityto file oblections againstthat} application and for affording^{an opportunityof hearing.Those applications have been numbered as} tN3g1t2123 and 1N33212023 respectively.^{During the course of hearingon 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^{maintainabilityof the application but Ld.RO did not record} the submission. Thereafter the appellant^{mentioned the gist of the applicationlNU0l2022with} reference to certificate and confirmation^{of sale dated 25.09.2006 and on 1 1.09.2014on an} application of the Respondent^{2, the purchaser,the sale and the confirmation of sale was} amended by including the name of^{Sri.SubhasChowdhury} ,^{theproprietorof RamaniWood Crafts} and the^police station. The application^{was allowedon 19.09.2014. The orderwas passedwith} respect to two^properties. Thereafter^{some more facts regardingTRClA No.340/2022were} mentioned.

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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-cooperationand lack of coordination.The prayer} was allowed vide order dated^{'13.12.2022and Ld.Advocate Mr.GautamSurwas appointedthe new} receiver. He was directed to^{hand overthe physical possession of the sold propertyto the auction} purchaser after demarcation and identification by one amin^{to be deputed fromthe BL andLRO} department. The new receiver submitted^{reporton 01.O3.2O23 and statedthat 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.}

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The impugned order was^{passedon 14.07.2023.Onthat date, the counsel of the appellants} submitted a copy of a letter dated^{06.06.2023sent by Deputy Secretary, Governmentof West} Bengal, department of Urban Development^{and MunicipalAffairs to chairman of Rajpur-Sonarpur} municipality regarding declaration^{of 20 feet common wide road to a public road'}

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By the impugned order dated^{14.07.2023certain directionswereissuedwhich are set out} in^paragraph 5.33 of the^Memo of^{Appeal. BL and LRO Sonarpur,was directedto deputethe 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 printof Aarburwasstandingand} mentioned the sheded area^{in sketch map whichis part of the Dag Number 3332 of theauction} purchaser, the R.l has to show all the "existing"^and "possibte"^{passages with length and width} in the sketch map,if the mini^{commercialvehicle is drivenout from the present standing point to the} road available outside through^{all the existing and possible passagesvia the gate of thepremises} occupied by the developer^{Multicon.The Rl hasto 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 auctionpurchaser's} land and also io sell it to the BL &^{LRO, Sonarpur for compliance. TheLd.Receiverwas also to} submit report along with^{video and photographs and alsothe minutes of the meeting.A direction} was also^given to communicate the^{order to O/C Sonarpur,PS for compliance'}

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1O(i) The receiver was also directed^{to serve the copy of the order to the officialsof the} Aaburgreen. The receiver^{had to prepare inventoryof the items present in the unauthorised} premises built by Aarburgreen in the land of^{auction purchaserwhich was put under lock and key} 9n^{2ry1 .2023 by the Receiver. The O/C Sonarpur,PS was also directed to give full cooperation} (z-4'''/,a- ta,h b'-

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Appeal / 03 | 2o23'DRT-2/KoL

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and^protection to the^{receiverand Rl. The authorities and guards. The authorities of Aarburgreen} were also directed to^{allow the receiver, Rl to enter their premises for doing necessaryact.}

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10(ii) The Aaburgreen was also^{directed to submitthe documentsin connection withthe} letter issued by Deputy^{Secretaryto chairman Rajpur-Sonarpur Municipality regardingthecopyof} petition, the proof of ownership of RS Dag^{No.3330 & 3351} ,^{the consent letters of the property} owners of other Dag Nos.^{Through whichthe 20ft. Wideroadto pass'}

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Aggrieved and dissatisfied^{with the above order daled 14.07.2023the appeal hasbeen} preferred. The gist's of the^{grounds are as follows} -

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i. The RO failed to appreciate^{thatRespondent No.2, the purchaser at costof} Rs.1,06,700 aclually tried to^{prevent the construction overthe land purchased by} Appellantno.1atcostofRS3,65,27,5OO/-havingtheplansanctionedbythe Municipality, The Respondent^{filedthe applicationon 13.,12.2022 long after the} construction was started.^{Prayerwas also made in the applicationfor change of a} receiver on the^{ground thatthe receiverwas not co-operative'}

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ii. The RO failed to^{appreciate the fact that before'13.'12.2022, for about 16 years after} purchasetheRespondent2neverclaimedanyrightofingressoregress.ThelA 340 filed by the^{RespondentNo.2on',13.12.2022cannot be a bonafide one and was} filed with ulterior motive^{to stop the construction.}

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iii. The land^purchased by^{RespondentNo.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.

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tv The auction^{purchaser has made allegationin the application that Mr.Sekhar} Burman,thepartner,hasdisturbedtheegressandingressoverthelandof 22decimals of the land of subhas^{chowdhury. The egressor ingress of that land} was never through the^{landsat present belonging to the appellant So far as the} egress and ingress^on the^{said 22 decimals is concerned, thesamewas 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 theapplicationthe said subhas} chowdhury has not even^{allegedthat owner of land of Dag No.3332has a right of} easement through the^{landsof Dag No.3325, 3329 &3334. From perusal of the sale} certificate dated^{10.03.2017,it appearsthatshri Moni Mohan Naskar & ShriPhani} MohanNaskarweretheoriginalownersofDagNo.3332andwerenotownersof any^portion of the^{land of DagNos. 3325,3329&3334.There is nothing on record to} show that the said^{abovetwo persons had any right of easement over the lands of} Dag Nos. 3325,^{3329 &3334.}

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From the deed of sale^{certificatedated 10.03.2017,it appearsthat some Dilip} KumarNathandShivaPrasadNathpurchasedthelandinDagNo.3332byDeed No.4528/1956(The copy^{of that certified copywasannexedto the reply filedby the} appellanl before RO). That^{datedoes not mentionthat the owner of the landin Dag} .'r-l

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ffi

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Al}eal I 03 I 2oz3^-D RT- 2/ KOL

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No.3332 had any right of easement over the lands in the three Dag Nos. as stated above.

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¶73

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.

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vI 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.

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¶76

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.

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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^mentionedin the^{sale certificate} dated 10.03.2017 that receiver had taken^possession of the^property after^{attachmenttherefore} there is no^question of fresh demarcation^.

¶78

TRC lNUOl22 was heard, detailed submissions were made instead of^disposingof the^said application, the Ld. RO^gave various directions vide the order dated^{14.07.2023,whichis} 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).

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Two supplementary affidavits have also been filed on behalf of the Appellant^{1 and Appellant} 2 respectively

¶80

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 thatthe impugned order, prima facie, to be} ?e7t a

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oPPeallo3l2o23-DRT-2/KoL

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without^{jurisdiction.} The^{maintainabilitypoint was kept open. The Respondent2 filed one sLP} being no. sLP(C)^{No.26763ot 2023against that order.That sLP was dismissed by an order dated} 12.12.2023 by the Hon'ble^{Apex Court and Hon'ble HighCourt Calcuttawas requestedto take up} 227 petition at the earliest.

¶84

13(iD. co 315'lno2g^{was finally heard and theapplicationwas allowedby an order dated} 21.05.2024. The order^{passedby the Ro dated 01.09.2023was set aside.A prayerhas been} made to consider the supplemenlary^{affidavitat the timeof final hearingof appeal.Theother} supplementary affidavit^{has been filed with the same facts and prayer on behalfof the Appellant2'}

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Affidavit-in-ODDositi^on

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14. ResDonse of Resoondent^No.2

¶87

It has been set out that^{Respondent No.1, the bank pursued TRC for recovery of debt beforeLd} RO. DRT-ll, Kolkata against^{certificate Debtors(cD).lt has been made out that the Appealis} misconceived that in the^{guiseof Appeal,an attempt is being made to bypassthe statutory} provision to stake its claim over such^{property. TheAppellant could not have purchased and if he} has purchased that^is the outcome^{of a void contract. lt has furtherbeen set out that appealis not} maintainable on fact^{andon law, it suffersfromnon-joinderof necessary parties.The sevencD's} are not made^{parties and in his absencethe 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^{applicationof Respondent2 in lA 34012022.No prayerhad been} made by the Appellants^{beforethe TRCproceeding.The Appellants have not even intervened in} the^proceeding.

¶88

14(i). The^gist of the^{case madeout by the Respondent2 is that the Recovery officer} published a sale notice dated^{28.04.2006 inviting biddersto purchasethe property-}

¶89

.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'ouzaJagatdal.Po]icestationsonarpur,District.24Parganas(south),westBengal.,

¶90

TheRespondent2wasdesirousandexpressedhisintenttopurchasetheproperty.The receiver Kajal Kumar^{Halder provided the respondent with inspection of the property by opening} iron gates^providing the^{rightof pathway leading to the property. During inspection' no one} opposed that exercise.^{The Respondent2 convenientlyentered through the iron gate, walked on} the land that^was the^{road leading to the said property surrounded by boundarywallThat exercise} was comfortably done^{giving confidenceto the Respondent 2 to participate in the auction sale'lt} was informed that the^{property offered for saleis only a part and portion of the largerpremises} owned by the cDs.^{on 11.07.2006 Respondent offeredhis bid and wasdeclaredas a highest} bidder. The entire consideration^{amount was deposited and the propertywas sold to him by the} Tribunal in the said^{TRC in the saleconducted by the Ro.TheTribunal has to securetheinterest} of the^purchaser. sale^{certificatewas issued on 25.09.2006, whichwas subsequently modified and} fresh sale certificate^{issuedon 19.09.2014,the Ld. Receiver alsoexecuted a deedof conveyance} intP.hvout. qL\

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App eal / Ot / zOz3^{-D RT-2/KOL}

¶93

14(ii)The^{physical possession of the propertywith rightof pathwayfrom the Municipalroad,} namely Dwarir road through^{iron gate was delivered.suddenlyduring 2020, that iron gate} providing easemenupathway was^{closed at theinstanceof theapplicant, therebytheproperty sold} to the Respondent^{No.2 was madea landlocked property.The Respondent 2 was constraint to file} lN34Ol2O22 before the^{RO in the saidTRC proceeding on thepremisethat thepropertywas sold} on the representation^{that Respondent 2 should have a pathway fromthe iron gate to his property'}

¶94

The Appellants filed their^{objection after receivingthe summons. No applicationwas made} by the Appellant seeking^{interventionin the TRC. Pending adjudicationof that lA, the RO was} carrying out enquiries and^{investigations to render justice andto ascertain the trueandcorrect} facts. ln order to^{give it a colour of a purported right,he filed this appeal'}

¶95

lt has further^{being made out in the affidavit-of-opposition, thatthe Appellantpurchased} through various deeds^{the larger property making a project plan and in the processthe 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 ownedby third parties'}

¶96

The alternative arrangement^{is fully detailed and sketched in mapmarkedwith lefter "E"'} The owners of the^{properties over whichthe proposed 20 ft. pathway soughtto be carvedout,} have recorded^their objection.(obiections^{annexed collectively and markedletter "F").}

¶97

15(i).ThelargerpropertywhichincludedthepropertyofRespondentNo.2,wereownedby the cDs. The^{balanced residueof the larger propertycannot be/couldnot have been dealtwith by} the cDs owing to^{theprovisionsof Rule 16 of the schedule of lncome Tax Act1961 . The} properties were illegally sold by the^{cDs in favour of the AppellantNoloverwhich the Appellant} No.2 is developing^{two high rise towers.}

¶98

1S(ii).The claim of^{right, titleand interest overthe larger residual property of the cDarisesout of a} void transaction therefore^{no right title and interest accruedto the Appellants. onlythe Tribunal in} the said TRC^{can propose to sale the same after protectingthe right of pathway'}

¶99

The cHB obtained^{Recovery certificate(RC) from the DRT. The Rule 16 of the second} schedule of the^{lncome TaxAct clearly statethat after serviceof noticeunder Rule2, the cD} cannot deal with the^{property withoutthe leave of the Ro. ln the year 1998, theRespondentNo1,} the bank^got the^{Recoverycertificate(Rc) to the tuneof Rs.48,55,057.33/- againstthe cD. The} Appellant No.¹ Aarburgreen^{Estates Ltd. ls not theabsoluteowner of thelandmeasuring 104'66} satakh⁽⁶³ Cottahs,^{5 Chittacks, 5 sq.ft) lying in Dag Nos.3325, 3329, 3334 by virtue of thesale} deeds executed in derogation^{of the Rule16 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&28.11.2017are executed} after the date of decree^{passedby DRT ll, Kolkataon 17.07.1998. As the decreewas passed} much^prior to the date^{of conveyance,which vitiates all the deedsexecuted later on underRule 16} of the lncome^{Tax Act.}

¶100

The Appellants^{wantto demolishthe shedlying in the propertyof Respondent2, the} Appellant encroached upon^{the property and parkedone truck bearing registration number:} WB19D4936 with the name^{Aarbur whichwas alsomentionedin the receiver's report dated} 08.08.2023 a{1.v

¶101

¶102

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

¶103

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.

¶104

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 thoughtheproperty} 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.

¶105

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 orderdated} 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 Courtat} 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^{matterback to thisTribunalto} decide the instant Appeal. An SLP was^prefened against the order^of the^{Hon'bleCourt passedin} 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.}

¶106

2'1. One supplementary affidavit has also been filed on 27.'l'1.2024 by a^{Respondent2 to the} affidavit in opposition as above, with a^prayer to make it^part and^{parcel of the affidavitin} opposition. With this supplementary affidavit certain^photographs and^{maps have beenfiled 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.

¶107

ResDonse of Resoondont No.l : State Bank of lndia

¶108

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 facilityfromRespondent} No.1 Bank. The Partnership Firm failed to repay the dues^and the^{loan accounttumedinto 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 & ProofingCo.,} Partnership (ii) Niharandu Guha Thakurta⁽ⁱⁱⁱ⁾ Sukhendu Guha Thakurta^(iv) Sushil^KumarGuha 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

¶109

¶110

Appe al I 03 I 2Oz3 -D RT-2/KO L

¶111

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 arethe legalheirs.} 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 dated¹⁷ .U.2000^is Annexure^E)

¶112

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^{propertysituated 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 recordedⁱⁿ the order^dated 30.10.2000 and subsequent orders.

¶113

22(iii). lt has furlher been made out that through the seven deeds of conveyance^{the entireland} 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^{receiverfor such property and to salethe 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 Rule¹⁶ of the^{lncomeTax Rule 1962. As theproperties} 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.^(page9)

¶114

Points For Determination

¶115

On consideration of the pleadings, the documents and the^{record and afterhearing the} parties, following points arise for determination of the Appeal -

¶116

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

¶117

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

¶118

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

¶119

(4) Whether the Appeal is fit to be allowed or not.

¶120

Analysis &fiullrrse

¶121

Point No. 1

¶122

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} -

¶123

Products & Proofins co, Partnership €*f(','")tile

¶124

¶125

ApPeaU03/2023-DRr-2/KoL

¶126

(ii) Niharandu Guha Thakurta

¶127

(iii) Sukhendu Guha Thakurta

¶128

(iv) Sushil Kumar Guha Thakurta

¶129

(v) Sarojendu Guha Thakurta

¶130

(vi) Nirmal Kumar Guha Thakurta

¶131

(vii) Gangesh Paints Pvt Ltd.

¶132

After transfer of the^{suit to Debts Recovery Tribunal,the case was registeredas T.A182 of 1996'} Judgment was^{passed on 17.07.1998 and accordingly a Recovery certificate was issuedbeing} 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}

¶133

Submissions

¶134

ResDo ndent no, 1 - lt^{has been submitted on behalf of the respondent no.1 that aflerattachment} of the two^{properties,learned Receiver has filed his report on 30.10.2000and it was disclosed by} the learned Receiver^{that about the property belonging to CD no.6 situatedat Mouza Jagaddal,} details of which are enumerated^{in order dated30.1O.2OOO. The said property situated at Mouza} Jagaddal of cD^{No.6was also attached and order of attachment was issued on 30.10.2000 8y} mentioning the above facts^{it has further been submittedthat it is clear from the above that} property situated at Mouza Chowhati,^{MouzaJagaddal andPremises no.53,C.N Roy Road,in the} name of cD 3 attached.^{By refeningto section 25 of the Recoveryof Debtsand Bankruptcy Act,} 1993 and also Rule¹⁶ of^{the lncome Tax (Certificate proceeding) Rules, 1962. lt has alsobeen} submitted that any^{privatetransfer of the property attachedis void as against all claims} enforceable under the^{attachment. Therefore,the Appellant no.1, Aarburgreenstate LLP} purchased the properties of L.R^{Dag No. 3325, 3329 and 3334 by 7 Deed of conveyance.}

¶135

Res no.2- Specific^{pleading has been made in para 4.3.10of the "Opposition" that claim} of right and interest^{over a larger resign propertyof c.Ds arisesout of a widetransaction. (Rule 16} of the second schedule^{of lncome TaxAct) and no right detail an interest is conferred in favour of} appellant no.1 or appellant^{no.2 in respectof larger property'}

¶136

Appel lantno.l & 2-^{First inreply to the lN3;Ol2O22 the appellants contestedthe assertion and} specifically made statements^{in para 4 of the replythat AarburgreenstateLLP is the absolute} owner of the^piece and^{parcelof the land measuringabout 104.66 sataks comprisingR.S Dag} No.3325, 3329 &^{3334. The claim of being absoluteowner of the said property by virtue of 7 sale} deeds the appellants^{contestedthe 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 claimor objection} instead he^{proceeded to passfurther orders. Let the attachmentpoint be considered, whether} attachment^{was made or not.}

¶137

lN34,Ot2O22^{in questiondoes not raiseany question regardingthis and impungedorder} daled 14.07.2023 also^{does not speak regarding attachment. This point is takenas. lt hasbeen} put forward by the respondents. Respondent^{no.1 by filing a mortgage suitin the court of ADJin} civil court at Alipore,^{Dist. 24 Parganas being T.s No. 58 of 1992 against the defendant' After} Oo+, au

¶138

¶139

Appeal I 03 I 2Oz3 -DRT-2/KOL

¶140

coming into force of the RDDB^{Act, 1993 the case wastransferredto DRT, Kolkataand was} numbered as 182 of 1996. The case was adjudicated^{upon and certificate was granted ex parte} being Certificate no. 14l 1999dated^{04.03.1999for recoveryof the sum mentioned abovewith} interest. The certificate^{proceedingwas initiated before Recovery Officer(RO)'DRT.}

¶141

An application was filed by the cHB,^{state Bank of lndiaon 04.01.2000 with a prayer to} attach the^property mentioned^{in schedule1 & 2 ot the applicationand alsofor appointment of} receiver. Learned R.O^passed the^order on^{17.04.2000. Receiverwas appointed. He was direcled} to make inventory and take^{possessionof the property. lt was also observedthat Mouza of} property relating to Dag no. 3332 was not mentioned^{fromthe statementof the bank. The CHB} was directed to furnish the^{name of} the^{Mouzaof the above property.}

¶142

27 . Receiver submitted report on 30.10.2000^{as per report, he visited the propertyon} 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 brokenboundarywall with a gate,} which was identified by representatives of^{CHB. The copy of order and attachmentwas affixedon} entrance gate.^(The above^{property waspurchasedby applicant / respondentno.2 in} auction).

¶143

Thereafter he visited the site^{of the propertysituated at MouzaChowhati of Dag no.1211,} c.s Khatiyan 233 and R.S^{Khatiyan234 (32 sataks) and Dag no.1208 /1311 C.S 233 / R.S 682} (34 sataks) belonging to C.D no. 2 to 6. Symbolic^{possessionwas taken after it was inventorised.} (The above property is not the subject^property ot^{\N34OI2O22 in which the impugnedorder} was passed).

¶144

Thereafter, he visited the site^{of the property situatedat 53, C.N Roy Road, Calcutta} - 700039. The inventory of this^{property,which was also the subjec{ property of R.P13 of 1997 of} TRC 281 of 2OO1^(SBl v/s Ganges^{Paint). As therewas no change in the property,freshinventory} was not made.

¶145

The above^properties are^{situatedat 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 17.04.2OO0by thereceiver.Vide order dated 30.'10.2000,a} formal order of attachment was^{directedto be issuedwith respectto thepropertyof Dag no.3332.} ln compliance of the said order leamed^{Receiver visitedthe site at Mouza Jagaddal, South24} Paragnas under Rajpur Municipality on^{16.'12.2000and affixed the copy of the order of attachment.} (hand written report is available on record of TRC¹⁹¹ of^{2001). Respondentno.1 / bankalso rely} upon the above attachment to^{mean that property of the CDs at Mouza Jagaddal, all have been} atlached.

¶146

31 . From perusal of the report it does^{not come out that the propertiesof Dag no. 3325, 3329 &} 3334 were ever attached.^{Attachmentwas made upon the propertyof Mouza Jagaddalpur, Dist. 24} South^paragnas under the Rajpur^{Municipalitybeing a plot measuring aboutan area ol 22} decimals under Dag no. 3332,^{Khatiyan no. 879. Only thisproperty under Mouza Jagaddal was} anachej_ &$ %-D

¶147

¶148

ApPeal/03/2023-DRT-2/KOL

¶149

Rule 16⁽²⁾ of^{lncome Tax Actprovidesthat whether an attachment has been made under} this schedule, any^{private transferor deliveryof property attachedor of any interest thereinand} any^payment to the^{defaulter of any debt, dividing or any monies contraryto such attachment, shall} be void as against^{all claims enforceable under the attachment. The claimof the respondentin this} score is not substantiated^{with any evidence.The valid evidence is the crux and core of any} adjudicatory^process. Trite^{is the principlethat there must be a proof offeredin supportof the} specific^{pleading. Respondents have basedtheir claim of the transfer being void underRule 16 (2)} of the lncome^{Tax Act is completely not substantiated.}

¶150

33.AstherewasnoattachmentofthepropertiesofDagno.3325,3329&3334ofMouza Jagaddalpur,^{thereforeall the alienationswith respect to that property cannotbe void.}

¶151

U. There is another^{aspectof the matter. UnderRule 11 of the second Scheduleof the lncome} Tax Act is somewhat^different.

¶152

under Rule 11(1) -^{whereany claimis prefened to or anyobiectbnis madeto the} attachment or^sale of^{any propeftyin execution of a cedificateon the ground that such propeiyis} not liabte to such^{attachment or sale, the Tax RecoveryOfficershallproceedto investigate the} claim or objection.^{lJnderRule 11(4),(5) and (6) it is provided as follows -}

¶153

Rute11(4):Where,uponthesaidinvestigation,theTaxRecoveryofficeris satisfled that, for the^{reasonstated in the claim or objection, such property was} not, at the said date,^{rn possession of the defaulteror of some person in trust for} himorintheoccupancyofatenantorotherpersonpayingrenttohim,orthat, beinginthepossessrbnofthedefauftelatthesaiddate,itwassoinhls possesslon,notonhisownaccountorashtsownpropelty,butonaccountofor intrustforsomeotherperson,orpafttyonhisownaccountandpartlyonaccount of some other^{person, the Tax Recoveryofticer shallmake an order rcleasing} the propetty, wholty^{or to such extentas he thinksftt, from attachmentor sale'}

¶154

Rule11(5):WeretheTaxRecoveryofficerissatisfiedthatthepropeftywas,at the said date, in^{the possessionof the defautteras hr'sown propeftyandnoton} accountofanyotherperson,orwaslhfhepossessionofsomeotherpersonin trustforhim,orintheoccupancyofatenantorotherpersonpayingrenttohim' the Tax Recovery^{Offtcershall disallow the claim'}

¶155

Rule11(6):Whereaclaimoranobiectionisprefeffed'thepaftyagainstwhom an order is^{mademayinstituteto a suit in a civilcoutito establish the ightwhich} he ctaims to the^{propeiyin dispute; but subjectto theresultof suchsuit (if any)'} the order of the^{Tax Recovery Officershall be conclusive'"}

¶156

Therefore,Recoveryofficer(Ro)hadtoexaminewhoisinpossessionofthepropertyandin what capacity. He can^{only attach property in possessionof the c.D in his own right,or in} possession of a tenant or a third^{party or on behalfof / for the benefitof the cDs. He cannot} declare any transfer^{made by the cDs in favour of a third partyas void.The provisionsof Rule 11} 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 thelncome} &"5

¶157

¶158

App eal / 03 / 2023^-D RT-2/KO L

¶159

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.

¶160

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.

¶161

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

¶162

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.

¶163

Point No.l is answered in negative.

¶164

Pointno.2&3

¶165

Easementarv Rioht

¶166

Whether the respondent no. 2 has a right of egress or ingress over^{the property of} appellant has an easementary right.

¶167

For deciding this issue the ordering^portion is^quoted below -

¶168

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 -

¶169

(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.

¶170

(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 willbe} 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.

¶171

¶172

(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.

¶173

¶174

(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.^{TheLd. 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.

¶175

¶176

APPeatlo3l2o23-DRT-2/KoL Receiver arso has to communicate^{today'sorder to the OlC, Sonarpur P S for} compliance. The^{Ld. Receiverhas a/so to servetoday'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 andthe R.l deputedfromthe BL&LROSonatpur'}

¶177

TheLd.Receiverhasalsotoprepareinventoryofthetimespresentinthe unauthoised^{prernises built by the'AarburGreen'in the Landof the Auction} purchaser which is^put under the^{tock and key on 24'01'2023by the Ld'} Receiver.

¶178

(3)Theol?sonarpurP.Sisdirectedtogivefuilcooperationandprctection to the Ld. Receiver^{andthe Rl deputedfrom BL&LRO Sonarpur while executing} the Tibunal's order.^{Also the otc, SonarpurmaintainLaw and order at the} propetty site duing execution of wo*^{assignedto the Ld' Receiverby this} Tibunal.

¶179

(4) The Authorities and^guards of^{the MIJLTICONand Aarburgreen are} directed to attow^{the Ld. Receiver and the R.l of BL & LRO to entertheir} prcmises for doing the necessary^{wor? as perthedirectionsof this Tibunal'} (5) The Auction Purchaser -^{Mr. Subhas Choudhuryis directed to Pay} RL.\1OOO/-^{(RupeesFifteen Thousanclonly) to the Ld' Receiverafter} compliance of^{todaY'sorder.}

¶180

ln connection^{with the letter of the DeputySecretary addressedto the} Chairman,RaipurSonarpurMunicipality,TheAarburgreenisdirectedtosubmit the following^{documents :-}

¶181

(i) The copy of the^{petitionatong with enclosures filed by Sri AriunSingh}

¶182

Mehta.

¶183

(ii) The proof of ownership of^{R.S DagNo'3330and3351 (copies of title} deeds and revenue^{recordwithEnglish Translation)'}

¶184

(iii) consent lefters of the^{Propertyowners of other Dag no's through} which the 20 feet^{wide road adioiningDwairRoadwl'l passandto be declared} as public Road^{as prayed by the Si Arjun SinghMehta'}

¶185

DespitedirectedwasgivenintheLastorderofthisTribunalfortheCHB officials to be^{presenton each hearingdate fixedfor thiscase, the officialsfrom} CHB are absent.

¶186

The officials^{presenton the last dateon behalf of cHBare again directed to be} present on the dates of heaing of^{this case Today'sorder should be} communicated^{to the CHBofficialsby theAdvocate appeaingfor CHB'}

¶187

Submlssion on^{behalf of APPellant}

¶188

Submission has^{been made on behalf of the appellantthat the auction purchaser,} respondent no.2 is not^{entitledto have engress or ingress to his land of Dag no.332 through the} land belonging to Aarburgreen^{stateLLP 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} detailed submissions were^{made on behalfof both the parties. lnstead of disposingthe lA, leamed} .-) ) q"

¶189

¶190

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

¶191

R.O gave various directions^{without anyprayerfor the said direction.Duty of the R.O wasto} adjudicate the matter of dispute^{on the basisof evidenceand it wasbeyond his jurisdiction to} collect or^grant the evidence.^{He has even given withoutany} iustification^{direction to the authorities} and^guards of Aarburgreen to^{allow the receiver andR.l of BL& LROto enter their premises.}

¶192

Further it has been submitted^{that learned counselfor the appellantno.1 had produced} before the learned R.O letter dated^{06.06.2023from DepulySecretary, Governmentof West} Bengal to Chairman Rajpur,^{Sonarpur Municipalitywith an enclosureof a copy of the petition filed} by shri Arjun singh Mehta^for declaring^{20 feet wide road as publicroad. with regardto this} subject the R.O^has also^{issued direclionwhich is as follows} -

¶193

"ALSO NOTICE BE ISSUED TO THE CHAIRMAN,^RAJPUR SONARPUR MUNIC\PAL|TY^{(Addressat iNetaii Subhas Chandra Bose} Road,Harinavi,Kotkata,WestBengal,PlN-700148)tofileadetailrepotl with municipal rutes by^{himlherto this Tribunalwith reference to the Petiton} of Sn Ariun Singh Mehta of^{Aarbur green to Letterno'484/ UDMA-} 19011(11)/42021-GENL Sec-Dept. of^{UDMA Dated06'06'2023of the} Deputy Secretary, to^{the Govemment of WestBengal theChariman,Raipur} Sonarpur Municipality has to^{explainin his repoft whether 'Declaration of} public Road is feasible or not .......-.-"

¶194

The^passing of the above^{directionsis completely beyond the jurisdiction of the R.o.}

¶195

lt has been submitted^{thatin the successive sale deeds right, nowhereit was mentionedthat} 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 purchasedin auction.}

¶196

Submi ion on behalf of ResDondent^No.2

¶197

43.^per contra it has been^made out^{on behalf of the respondent no.2 thateven if therewas no} mention in the deeds for^use of the^{propertyof theappellantfor accessto thepropertyof auction} purchaser that cannot be a reason to hold^{that therewas no grant as grantcould 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 SCC689 and also one iudgmentof Hon'ble} catcutta High court^{passed in Kali Pad Bose & ors. V/s Fann Bhushan Roy (AlR1924 CAL363).} It has been submitted that^{therewas a pathwayexisted before from the land of the appellantto the} land^purchased by the^{respondent no.2 of Dag no.3332.}

¶198

lndian Easement Act^{is not applicable to the State of West Bengal to supportthis} contention. Learned counsel^{for the appellant referredto judgment passedby Hon'bleCalcutta} High Court on 25.02.2019^{Rita Rai (Rumba) & Ors. V/s Prakash Tamam.}

¶199

Part Vl, The lncome^{Tax (CertifcateProceedings)Rules, 't962 pertains to the} resistance or obstruction to deliver^{of possessionto purchaser.Rule 41, 42 &43 ofthesaid} provision reads as follows -

¶200

Resistance or obstuction^{fo possessioa of immovable property i}

¶201

(1) Where the purchaser of immovable^{propafiysold in exacutionof a ceftificate} is resisted or obstructed by any^{personin obtainingpossession of the propedy, he may} make an apptication to the^{Tax Recovery Officer complainingof such resistance or} obstruction within thirty^{daysof the date of such resistance or obstruction-} A,{ $u

¶202

¶203

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

¶204

(2) The Tax Recovery Officer shall fix a day for investigating the matter and shall summon the pafty against whom the application^{is madeto appearand answerthe} same.

¶205

Resistance or obstruction by defaulter^:-

¶206

Where the Tax Recovery Officer is satisfled that the^{resistanceor obstruction} was occasioned without any^just cause by the^{defaufteror by someotherperson 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,^{takesleps to put the} applicant ihto possess,bn of the^properv by^{removing the defaulter or any person} acting at his instigation.

¶207

Resistance or obstruction by bona fide claimant^:'

¶208

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^personother than the defaufter, the Tax Recovery Officer^{shall make an orderdismissingthe} application.

¶209

Let the above^provision be examined^{whether it applicable to the factsof the case or not} 46. From^perusal of the order^passed by^R.O on^{30.10.2000 it appearsthat 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.6at Mouza Jagaddalpur South24 Parganas} and the same has been^inventorised by^{him andhe 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^{causethe copyof attachmentto be affixed on the} conspicuous part of the^property and to^{file a report in this on behalfon the next date. ln} compliance of this order relating to this^{property, learned Receiver submitted reporton 19.12.2000.} The report is hand written endorsed on^{his letter head. This reportis available on record.}

¶210

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 copyof the orderof attachment} issued on 30.1O.2OOO, on the entrance of the aforesaid^{proporty beinga plot of land measuring} 22 sataks of Dag no.3332. Earlier in his^report dated^{30.10.2000 he described the propertyto be} surrounded^"By a broken wall wlth a^{gate". Therefore,the propertywhich had been attached has} a definite boundary and the order^{of attachmentwas affixed on the gate.}

¶211

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,thisRule does not applies. He has directed} the R.l to show all the existing and^{possible passagewith length and width in the sketch,if the mini} commercial vehicle is driven out from the^{standing point to the road available outsideand also all} the existing and^{possible passages via gates of premises occupiedby developer MULTICON.}

¶212

Calling for such report is completely uncalled for.^{The learnedR.O wentfurther and directed} the authorities and guards of MULTICON and AARBURGREEN^{to allowthe 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

¶213

¶214

Appeat / 03 I 2O23-DRT-2/KOL

¶215

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.

¶216

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.

¶217

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

¶218

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.

¶219

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

¶220

¶221

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

¶222

That revision application^{was allowed.The impugned orderwas set aside by the} iudgment dated 21.05.2024 after holding that^{leamed R.O had passedan interim order whichwas in the} form of granting a formal relief.^lt was^{directedto hearthe application afresh on the evidences and} on the issues discussedⁱⁿ the^{judgment. Such allegations shall be entered into by the Recovery} Officer after disposal of the^{pending appealand subjectto theresult of theappeal.The impugned} order dated 01.09.2023 as well as^{the earlierorder under challenged before this appellant form} daled 14.07.2023, both have been^{considered on a larger spectrumby the Hon'ble Court.}

¶223

That order dated^{21.05.2024passed 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 interferewith theorder} 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 Courtin C.O no.3151/2023are being} referred only to bring the fact that^{order dated 01.09.2023 passedby Ld.ROin the same} proceeding was set aside. This order can only be considered^{as a continuationofthe order passed} earlier on 14.07.2023^{which is} the^{subiect matterof this appeal.}

¶224

The easement is not^{apparent.The successionof sale deedsdo not also refer to any such} rights. The easement is not apparent^{or continuousfrom the fact of the case.The auction} purchaser had purchased the land of Dag No.3332 in the^{year 2006.The propertyattached hada} broken boundary with a^{gate; uponwhich attachment orderwas affixed.Primafacie, I do not find} any easementary right. Moreover,^{u/S 33 of the EasementAct 1882, if applicableto the Staleof} West Bengal, a suit has to^{be instituted for any such disturbanceof that rights.}

¶225

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^{easementaryright.}

¶226

Therefore the Point No.2 & 3 are decided against^{the Respondent.}

¶227

On 131O5t2O25 at the time^{of hearing one application beinglA No.1197/2025 was tiled online} and hard copy has not been^{filed. lt has beenfiled for directingthe appellantto concludethe} submission and also to^pass an order^{of injunctionto stop constructionof 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 soughttime for filing written notes.On 'l4lo7l2i25} written notes had been uploaded and^{it had been submittedthat duringthe courseof the day} written arguments would be filed. On^{that date i.e. 14t0712O25 the matter was reserved for} judgment. 1N119712025 was not pressed.

¶228

INTERFACE wlTH RERA

¶229

RERA is^,sector Specific Legislation'.^{lnter play between RERAAct, RDBAct, SARFAESI} Act and also the other Acts^{is paramountfor all the stake holders navigating complex, webof Real} Estate transaction. The interplay^{results is no lesser than completelya differentbut evolved} jurisprudence.

¶230

Essentially a^project is mortgaged^{in favourof a Financial lnstitutionas a securityagainst} debt raised by such developer.^{Theallottees also depositedthe amount with the developer.} Therefore, the developer is answerable to^{boththe F.l. and the allottees. Between F.l.and} promoter for enforcement of the security interest, the^{concerned DRT has the jurisdictionunder} SARJTAESI ACURDB Act. For^{grievancesof the buyers vis-a-vis promoter, the concernedRERA} >5 q

¶231

¶232

APPealloll2oz3'DRT-2/KoL

¶233

authority has the^{jurisdiction.ln this case thereis 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 throughthe land purchasedby the appellantno.1over} which development^{constructionis goingon.}

¶234

Therefore,^{proceedingunder RDB Act for recoveryand RERA have an impact on the} development of the^{project.To regulatethe growing Real Estatesector, Real Estate (Regulation &} Development) Act,^{2016 was enacted. lt mandates registration of the projects. lt providescriteria} of Registration^{(Section.4), Grant of Registration(Section-s),Revocationof Registration (Section-} 7). lt also^{provides func{ionsand duties of the promoters' the proiecl speciflcation and adherence} to sanc{ion^plans, the^{rights and dutiesof the allottees as well'}

¶235

From^{perusalof copy of development agreementdated 19to8,12022 (Annexure-'c' to Memo} of Appeal) and copy of^{Power of Attorney executedin 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 planthe developerwas entitled} to create a charge on^{its share of realisation in favourof the BanUF'|. and to raiseconstruction} finance up to maximum^{limit of 15 crores. Therefore, creditfacilities up to Rs. 15 crores has to be} taken from a bank^{as a builder finance.}

¶236

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

¶237

section 35 0f the^{sARFAESI Acl.2oo2andsection 34 0f the RDBAct,1993are similar} worded. Both have the^{overreadingeffectnotwithstandinganything inconsistenttherewith} contained in any^{other law for the time beingin force or in any instrument havingeffect by virtueof} law. Section 89 of the^{RERA Act, 2016 alsoprovidesthat 'Acl'shall have oveneadingeffect'} Therefore, being^{the subsequent legislationit shall have primacy and will prevail over any other} legislation,^{particularly when it comes to the protection of rights of home buyers.}

¶238

The matter^{was set at rest by Hon'bleApex courtwhile disposinga specialLeave To} Appeat(c) No.^{1861-1871of 2022 challengingthe judgementof 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,^{provisionof RERA Act will prevail. Now the project is completelyunder the} regulation of RERA Authority.^{As per photographsfiled by the respondent no'2,theproject} ,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 saleof units helps the promoterto run it as 'ongoingconcern"} the units cannot^{be said to be only the assetsof the promoter'}

¶239

The buyers cannot^{be left lurching in the procedural legal complexity.The problems must} be addressed^{in the existing frameworkwhich ensures projectcompletion,protect the home} buyers, enhancing^{their confidence and at the same time strengthenthe real estate ecosystem'} 67 . Therefore now the^{project "Prestige Residence"is well within RERAjurisdiction.} / g a. $.. CONCLUSION

¶240

¶241

Appeal I O! I 2O23^-DRT-2lKOL

¶242

From the discussions made above^{and on analysis of the matter, conclusioncanbe} summarized as under-

¶243

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 affectingthese Dag Nos. are} wholly unwarranted.

¶244

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 hascompletelyover} stepped his^{jurisdiction.}

¶245

The 'Prestige Residence'^{comingup on the above land areto be regulated only} under the RERA authority^{under Real Estate (Regulation& Development)Act, 2016. Ld.RO hasno} jurisdiction to intermeddle with the lands upon which the^{projectis comingup.}

¶246

With the above conclusion the^{Tribunal leavethe Respondentsto pursue their} individual relief, if any, before^{appropriate forum.}

¶247

ORD RED

¶248

Appealr3r2023 is allowed on^contest

¶249

The order and the directions^{daled 14.07.2023passed in TRC/191/2001by the} Ld.RO are set aside. The^{Ld.RO shall enterintothe recovery proceedings in accordancewith law.}

¶250

All pending lAs, if any also stand^disposedoff.

¶251

No order as to costs.

¶252

File be consigned to Record^Room.

¶253

This order is dictated and corrected^{by the undersigned and pronouncedon}

¶254

this the 08th day of August, 2025.

¶255

Copy of the Order be uploaded^{in the Tribunal's Website.}

¶256

t^{,b;-J i'60 r"} o2r (Arbind M hav) Presiding Officer DRT - 2, Kolkata

¶257

aky

Aarburgreen Estates LLP v. State Bank of India

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Aarburgreen Estates LLP v. State Bank of India

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