CRA/244/2006 2/ 13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 244 of 2006 With CIVIL REVISION APPLICATION No. 243 of 2006 With CIVIL APPLICATION No. 3456 of 2008 In CIVIL REVISION APPLICATION No. 243 of 2006 With CIVIL APPLICATION No. 3457 of 2008 In CIVIL REVISION APPLICATION No. 244 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HARSHADRAI V.SHAH - Applicant(s) Versus JITUBHAI RAMNIKLAL MODI. - Opponent(s) ========================================================= Appearance : MR RD DAVE for Applicant(s) : 1, 1.2.1, 1.2.2,1.2.3 None for Opponent(s) : 1, MR HARSHIT S TOLIA for Opponent(s) : 1.2.1 ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/06/2008 COMMON ORAL JUDGMENT
1. These
Revision Applications have been heard together as identical issues
are involved and the contentions are same and therefore the counsel
for the parties have requested for hearing them together and
disposing them by way of this common judgement.
2. The
applicant hereinabove has assailed the order dated 19.07.2006 passed
by the Executing Court in Special Executing Petition No. 157 of 2003
and 158 of 2003 whereunder the applicant’s objection in continuing
the execution proceedings have been rejected by the learned court.
3. The
facts in brief deserve to be set out as under in order to appreciate
the controversy in question:
3.1 The
present applicant in course of his business borrowed money against
which he issued cheques including the amount of interest for short
term from many citizens. The present opponents also advanced some
amount against which they received deposit and cheque which included
the interest to be paid on that amount. It was a transaction
simplicitor of borrowing money from known parties. The cheques
issued by the applicant were not honoured when presented to the bank
and therefore the bank sent an intimation that the cheques have been
bounced. The transactions and bouncing of the cheques took place
somewhere in the year 1998. The suits came to be filed for realising
the amount being Summary Suit Nos. 32/01 and 33/01 for an amount of
Rs. 4,07,500/- and Rs. 4,21,250/- respectively.
3.2 The
present applicant did not remain present and the suits were required
to be decreed exparte. The order and decree was passed on 08.05.2003
whereas the Summary Suit No. 33/03 came to be allowed and decree was
passed on 04.05.2002. The applicant did not do anything thereafter
and ultimately as the amount had not been realised, the execution
petition came to be filed being Special Execution Petition No. 157/03
and 158/03.
3.3 In
the executing proceedings for the first time the applicant appeared
and attempted to resist the execution on the spacious grounds about
decrees being nullity as the suits itself were time barred and on a
broad contention with regard to non-executability of the decrees for
the reasons that against the property there was already a prior
charge of various banks. The executing court vide order dated
19.07.2006 did not accept the objections and hence the present Civil
Revision Applications.
4. Mr.
R.D Dave, learned advocate appearing for the applicant contended that
the decrees were nullity as the suits were time barred and therefore
when the decrees were nullity the same could not have been the
subject matter of execution. He further contended that the decrees
were not executable in view of the statutory ban operating against
its execution. Mr Dave also contended that the decrees were not
executable on account of prior charge on the property from banks like
IDBI and SBI. In short all attempts were made to thwart the decrees
and deprive the defendants of their legitimate rights to the decrees.
4.1 Mr.
Dave has submitted that as per the decision of the Apex Court in the
case of Sant Lal Mahton vs. Kamala Prasad and others reported in
AIR 1951 SC 477 wherein the suit itself was time barred as could
be seen from the dates mentioned in the plaint itself, the original
plaintiff’s attempt to bring the suit within the time limit on
account of so called payment of Rs. 5000/- made by the original
defendant, would be of no avail to the present applicant, as the
assertion made by the plaintiff in the suit is only a piece of
evidence for indicating payment of debt which in the light of clear
provisions of section 19 of the Limitation Act as read with its
proviso would not be sufficient as it lays down clearly that the
written acknowledgement of payment is infact essential for extending
the period of limitation. In support of his submission, the
aforesaid decision of the Apex Court is relied upon by Mr. Dave.
4.2 The
next contention of Mr. Dave is that in view of the statutory rules
having force of the statute promulgated under the Finance Act, Rule
16 clearly provides alienation to be found in certain cases wherein a
mention is found that the civil courts shall not issue any process
against such property in execution of decree for payment of money.
Relying upon this rule, Mr. Dave attempted to say that the decrees
can be said to be not executable as income tax notices were placed on
record at Ex. 16 and therefore even on this count also the order
impugned deserves to be quashed and set aside.
4.3 Mr.
Dave further submitted that the property against which the execution
is sought was under the charge of IDBI and SBS banks and therefore
when the recovery proceedings under the Debt Recovery Tribunal Act
were going on and as per the provisions of the Recovery Act also, the
recovery of bank dues are to be effected as per the provisions of
Schedule 2 and 3 of the Income Tax Act and therefore from that angle
also there appears to be a specific ban against the civil court
issuing process against such property and the order impugned deserves
to be quashed and set aside.
4.4 Mr.
Dave submitted that the suit itself was not maintainable as the
transaction in question was that of money lending and clearly barred
as the plaintiff did not have money lender’s license and the
transaction was that of money lending covered by the provisions of
the Bombay Money Lenders Act. He further submitted that this
transaction cannot be saved by sub clause of section 2(9) and the
transaction cannot be said to be against the Negotiable Instruments
Act as it is sought to be made.
5. Mr
Tolia, learned advocate appearing for the respondent submitted that
the revisions are misconceived and the same deserve to be dismissed.
He has submitted that the contentions which have been canvased by the
learned advocate for the petitioner before this court have
conspicuously been absent before the Executing Court and therefore
these contentions are not required to be considered.
5.1 Further
without prejudice to his contentions, Mr. Tolia has submitted that
decrees cannot be said to be nullity so as to permit the defaulter
and the decree debtor to contend before the Executing Court that the
suits were time barred. Mr Tolia has relied upon the decision of the
Apex Court in the case of Ittyavira Mathai v. Varkey Varkey and
another reported in AIR 1964 SC 907 and submitted that in light
of the observation of the Apex Court it is not open to anyone to
resist the decree on the ground of suit itself being time barred. A
decree drawn by the competent court even after suffering from error
needs to be respected and complied with unless it is reversed by the
appellate court and the debtor has no right to resist the execution
proceedings on such spacious plea especially when he permitted the
suit to be proceeded exparte and when he did not bother to even apply
for restoration under Order 37 Rule 4 nor did he bother to challenge
the exparte decree by preferring First Appeal at a belated stage of
execution. Such a plea cannot be accepted and therefore the
Executing Court has rightly passed the order.
5.1 With
regard to the submission of statutory provisions, Mr. Tolia submitted
that the rule pressed into service namely Rule of the Rules figuring
under the Appendix to the Finance Act would not be so construed so as
to hinder the execution proceedings. It is cast only with a view to
protect the revenue and it is for the executing court to decide while
issuing the process as to whether the property in question is under
any encumbrance or any charge or proceedings by revenue authorities
or by other bankers. Mr. Tolia submitted that there are various ways
to execute the decrees for realising the money and therefore this
submission would also be of no avail. Mr Tolia submitted that
ofcourse without prejudice such contentions were never raised before
the Executing Court as he invited this Court’s attention to the
objections at Ex. 9 as well as written submission at Ex. 15 wherein
in no way this objection has been articulated by the applicant and
when this is not contended it is not open to the applicant to contend
for the first time before the Revisional Court and therefore on this
count also Mr Tolia submitted that the petition deserves to be
dismissed.
5.2 Mr.
Tolia has also submitted that the reasoning applicable to reject the
second contention of the petitioner qua the statutory ban would also
be applicable to answer the question with regard to the third
contention and therefore he did not make submission on the third
contention in particular.
6. Heard
learned counsel for the parties. This court is of the considered
view that the following undisputed points deserve to be taken into
consideration:
The
contentions were made way back in the year 1998 against a cheque of
an amount which included the interest to be paid on that amount
which was borrowed. The cheque which was issued was not honoured
and the defendant and the present respondent did not even have the
principal amount.
The
present applicants have borrowed such type of amount from various
agencies and citizens and during this proceeding, Mr. Dave has
submitted that the applicants have not discriminated against anyone
and have paid 25% to these defendants also as he never wanted to
discriminate against them as a policy matter. It appears that out
of around 334 cases only 90 cases remain because they are satisfied
after taking 25% on account and there is solemn hope that he would
be able to pay them later on.
6. It
remains to be noted that no action is taken for seeking restoration
and setting aside the exparte decrees. The court feels that if the
suit was really time barred then it would have been an effective
ground which would have been available for making an application for
serving as an exparte decree. The fact is that neither the
application is made nor the decree is challenged by preferring First
Appeal till date and only an execution application is sought to be
resisted on spacious pleas.
6.1 So
far as the ground with regard to nullity is concerned, this Court is
of the view that the decree cannot be said to be nullity in view of
the fact that the point of nullity or suit being time barred ought to
have been debated before the appropriate forum and no debtor can be
permitted to ignore the decree on his understanding that decree is
time barred. The decree drawn by the competent court has to be taken
at its original conclusion and complied with unless and until it is
set aside by another appellate forum. The ratio laid down by the
Apex Court in the case of Tolia is clearly governing the present case
and therefore this Court need not elaborate upon this point.
7. This
brings this Court to the second ground of statutory ban as one can
see from the Rule basically framed for protecting revenue of the
State. The State in a public policy cannot say that the Court shall
stay the execution proceedings for collecting and/or protecting its
revenue. In short the Rule has wrongly been relied upon. Rather it
is an attempt to thwart legitimate execution proceedings. Suffice it
to say that the Executing Court shall bear in mind while issuing
process against any property that it is under the charge of income
tax department then only the process is not required to be issued
against that property but that in itself cannot be said to be a
ground for dropping execution proceedings.
8. The
aforesaid same reasoning would be applicable so far as the contention
regarding charge of IDBI and SBS banks is concerned. In short, the
attempt does not seem to be inviting any interference by this Court
and therefore this Court is of the considered view that the
application deserves to be dismissed with costs.
9. Accordingly,
this Civil Revision Application is dismissed with costs.
10. In
view of the order passed in the Revision Application, no order is
passed in both the Civil Applications. Civil Applications stand
disposed of accordingly.
(S.R.BRAHMBHATT,
J.)
Divya//