Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2048 of 2012 ====================================================== Dr.Matuk Nath Choudhary, Son of Late Yugal Kishrore Choudhary, Resident of 303, Saraswati Niwas Apartment, Road No. 12, Rajendra Nagar, P.S. Kadam Kuan, District Patna-16. .... .... Petitioner Versus 1. The Housing and Urban Development Corporation Ltd. having its registered office at Core 7A HUDCO, HUDCO Bhawan, India Habitat Centre, Lodi Road, New Delhi – 110003 through its Chairman-cum-Managing Director. 2. The Regional Chief, Regional Office, The Housing and Urban Development Corporation Ltd., 2nd Floor, Block-2 Mauryalok Complex, Dak Bunglow Road, Patna. 3. The Authorized Officer Regional Office, The Housing and Urban Development Corporation Ltd., 2nd Floor, Block-2 Mauryalok Complex, Dak Bunglow Road, Patna. 4. M/s Goswami Developers Pvt. Ltd. having its office at Apna Ghar, 2nd Floor, Abhay Bhawan, Frazer Road, Patna 800001 through its Managing Director Sri Lallan Sharma, Son of Late Kameshwar Singh, Resident of Durga Niwas, beside Hope Apartment, Indrapuri, Aashiana Road, Patna- 800014. 5. Reena Sharma, Wife of Sri Lallan Sharma, Daughter of Late Kameshwar Singh, Resident of Durga Niwas, beside Hope Apartment, Indrapuri, Aashiana Road, Patna- 800014, Director in M/s Gosswami Developmers Pvt. Ltd. having its office at Apna Ghar, 2nd Floor, Abhay Bhawan, Frazer Road, Patna 800001. 6. Alok Kumar, Director in M/s Goswami Developers Pvt. Ltd. having its office at Apna Ghar, 2nd Floor, Abhay Bhawan, Frazer Road, Patna 800001, Resident of 204, Saraswati Niwas Apartment, Road No. 12, Rajendra Nagar, P.S. Kadam Kuan, District Patna-16. .... .... Respondent/s ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER 3 07-02-2012 Heard learned counsel for the petitioner, counsel for the Housing and Urban Development Corporation Limited and the counsel appearing on behalf of respondent no. 4. The petitioner is aggrieved with the notice for auction sale issued by the Housing and Urban Development Corporation Limited (hereinafter referred to as „the HUDCO‟) Patna High Court CWJC No.2048 of 2012 (3) dt.07-02-2012 2/6 with respect to a property developed by respondent no. 4 known as Saraswati Awas Apartment, situated at Road No. 12, Rajendra Nagar, Patna. The petitioner‟s case is that he had entered into an agreement with respondent no. 4 to purchase Flat No. 303. The total sale consideration of the flat as agreed between the parties was Rs. 7,50,000/-. The petitioner has allegedly paid an amount of Rs. 1,10,000/- by cheque and Rs. 2500/- by cash. Apparently the petitioner did not pay the entire amount however, he came into possession of the said flat. There is a dispute between the builder and the petitioner with respect to payment of the amount in lieu of the agreement between the parties. It is also apparent that no deed of registration has been executed with respect to the property in question. Apparently, the petitioner has filed a case for specific performance against the borrower, whereas, the borrower has filed a case under [STATUTE] . The disputed notice was issued to the borrower to pay the loan amount advanced by HUDCO. Non payment led to the issuance of Annexure-5 i.e. a notice of auction sale of Flat Nos. 102, 303 and 404. As mentioned earlier Flat No. 303 is in occupation of the petitioner. Patna High Court CWJC No.2048 of 2012 (3) dt.07-02-2012 3/6 Learned counsel for the petitioner submits that he is not liable to pay the loan under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is submitted that he is neither the secure creditor nor can he be termed to come within the definition of builder and as such, the notice to auction sale the flat which is in his occupation is against law, and ought to be quashed. Learned counsel appearing on behalf of the HUDCO on the other hand submits that the petitioner would be covered by Section 13 (4) (a) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which reads as follows: “(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:- (a) take possession of the secured assets of the borrower including the right to transfer lease, assignment or sale for realizing the secured asset;” It is submitted that the notice to auction sale the assets is under the provision aforesaid. It is also argued that Section 13(4) of the aforesaid Act gives liberty to the creditor to Patna High Court CWJC No.2048 of 2012 (3) dt.07-02-2012 4/6 take recourse to anyone or all of the measures as mentioned under sub-section 4 of the aforesaid Act. The borrower in this case had been given due notice to pay the debt and when he failed to do so the said action has been taken by HUDCO. Counsel appearing on behalf of the builder has vehemently argued before this Court that the petitioner is not the owner and does not have possessery rights over the property concerned as envisaged under Section 53(a) of the Transfer of Property Act. It is contended that the petitioner has failed to discharge his liabilities and has not paid the sale amount as agreed upon by the parties. It is further submitted that infact the advance paid by the petitioner through cheque has bounced and, therefore, the petitioner has no right to contend that the property in question cannot be auctioned sale. Considering the contentions of all the parties, one thing is quite obvious that the petitioner is in possession of the flat in question. This fact is not denied by any of the parties before this Court. It may be contended that his possession is not legall

Applicable IPC Section: 138

Statute Text:
Section 138 of the Indian Penal Code. Abetment of act of insubordination by an officer, soldier, sailor or airman, if the offence be committed in consequence. Whoever abets what he knows to be an act of insubordination by an officer, soldier, sailor or airman, in the Army, Navy or air Force, of the Government of India, shall, if such act of insubordination be committed in consequence of that abetment, be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.