{"id":7506,"date":"2008-06-27T00:00:00","date_gmt":"2008-06-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harshadrai-vs-these-on-27-june-2008"},"modified":"2017-08-15T18:43:30","modified_gmt":"2017-08-15T13:13:30","slug":"harshadrai-vs-these-on-27-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harshadrai-vs-these-on-27-june-2008","title":{"rendered":"Harshadrai vs These on 27 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Harshadrai vs These on 27 June, 2008<\/div>\n
Bench: S.R.Brahmbhatt<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nCRA\/244\/2006\t 2\/ 13\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nREVISION APPLICATION No. 244 of 2006\n \n\nWith\n\n\n \n\nCIVIL\nREVISION APPLICATION No. 243 of 2006\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 3456 of 2008\n \n\nIn\nCIVIL REVISION APPLICATION No. 243 of 2006\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 3457 of 2008\n \n\nIn\nCIVIL REVISION APPLICATION No. 244 of 2006\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE S.R.BRAHMBHATT\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nHARSHADRAI\nV.SHAH - Applicant(s)\n \n\nVersus\n \n\nJITUBHAI\nRAMNIKLAL MODI. - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nRD DAVE for\nApplicant(s) : 1, 1.2.1, 1.2.2,1.2.3  \nNone for Opponent(s) : 1, \nMR\nHARSHIT S TOLIA for Opponent(s) : 1.2.1\n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 27\/06\/2008 \n\n \n\n \n \nCOMMON\nORAL JUDGMENT<\/pre>\n
1.\tThese
\nRevision Applications have been heard together as identical issues
\nare involved and the contentions are same and therefore the counsel
\nfor the parties have requested for hearing them together and
\ndisposing them by way of this common judgement.\n<\/p>\n
2.\tThe
\napplicant hereinabove has assailed the order dated 19.07.2006 passed
\nby the Executing Court in Special Executing Petition No. 157 of 2003
\nand 158 of 2003 whereunder the applicant’s objection in continuing
\nthe execution proceedings have been rejected by the learned court.\n<\/p>\n
3.\tThe
\nfacts in brief deserve to be set out as under in order to appreciate
\nthe controversy in question:\n<\/p>\n
3.1\tThe
\npresent applicant in course of his business borrowed money against
\nwhich he issued cheques including the amount of interest for short
\nterm from many citizens. The present opponents also advanced some
\namount against which they received deposit and cheque which included
\nthe interest to be paid on that amount.  It was a transaction
\nsimplicitor of borrowing money from known parties.  The cheques
\nissued by the applicant were not honoured when presented to the bank
\nand therefore the bank sent an intimation that the cheques have been
\nbounced. The transactions and bouncing of the cheques took place
\nsomewhere in the year 1998.  The suits came to be filed for realising
\nthe amount being Summary Suit Nos. 32\/01 and 33\/01 for an amount of
\nRs. 4,07,500\/- and Rs. 4,21,250\/- respectively.\n<\/p>\n
3.2\tThe
\npresent applicant did not remain present and the suits were required
\nto be decreed exparte.  The order and decree was passed on 08.05.2003
\nwhereas the Summary Suit No. 33\/03 came to be allowed and decree was
\npassed on 04.05.2002.  The applicant did not do anything thereafter
\nand ultimately as the amount had not been realised, the execution
\npetition came to be filed being Special Execution Petition No. 157\/03
\nand 158\/03.\n<\/p>\n
3.3\tIn
\nthe executing proceedings for the first time the applicant appeared
\nand attempted to resist the execution on the spacious grounds about
\ndecrees being nullity as the suits itself were time barred and on a
\nbroad contention with regard to non-executability of the decrees for
\nthe reasons that against the property there was already a prior
\ncharge of various banks.  The executing court vide order dated
\n19.07.2006 did not accept the objections and hence the present Civil
\nRevision Applications.\n<\/p>\n
4.\tMr.\n<\/p>\n
R.D Dave, learned advocate appearing for the applicant contended that
\nthe decrees were nullity as the suits were time barred and therefore
\nwhen the decrees were nullity the same could not have been the
\nsubject matter of execution.  He further contended that the decrees
\nwere not executable in view of the statutory ban operating against
\nits execution.  Mr Dave also contended that the decrees were not
\nexecutable on account of prior charge on the property from banks like
\nIDBI and SBI.  In short all attempts were made to thwart the decrees
\nand deprive the defendants of their legitimate rights to the decrees.\n<\/p>\n
4.1\tMr.\n<\/p>\n
Dave has submitted that as per the decision of the Apex Court in the
\ncase of Sant Lal Mahton vs. Kamala Prasad and others<\/a> reported in
\nAIR 1951 SC 477 wherein the suit itself was time barred as could
\nbe seen from the dates mentioned in the plaint itself, the original
\nplaintiff’s attempt to bring the suit within the time limit on
\naccount of so called payment of Rs. 5000\/- made by the original
\ndefendant, would be of no avail to the present applicant, as the
\nassertion made by the plaintiff in the suit is only a piece of
\nevidence for indicating payment of debt which in the light of clear
\nprovisions of section 19 of the Limitation Act as read with its
\nproviso would not be sufficient as it lays down clearly that the
\nwritten acknowledgement of payment is infact essential for extending
\nthe period of limitation.  In support of his submission, the
\naforesaid decision of the Apex Court is relied upon by Mr. Dave.\n<\/p>\n
4.2\tThe
\nnext contention of Mr. Dave is that in view of the statutory rules
\nhaving force of the statute promulgated under the Finance Act, Rule
\n16 clearly provides alienation to be found in certain cases wherein a
\nmention is found that the civil courts shall not issue any process
\nagainst such property in execution of decree for payment of money.
\nRelying upon this rule, Mr. Dave attempted to say that the decrees
\ncan be said to be not executable as income tax notices were placed on
\nrecord at Ex. 16 and therefore even on this count also the order
\nimpugned deserves to be quashed and set aside.\n<\/p>\n
4.3\tMr.\n<\/p>\n
Dave further submitted that the property against which the execution
\nis sought was under the charge of IDBI and SBS banks and therefore
\nwhen the recovery proceedings under the Debt Recovery Tribunal  Act
\nwere going on and as per the provisions of the Recovery Act also, the
\nrecovery of bank dues are to be effected as per the provisions of
\nSchedule 2 and 3 of the Income Tax Act and therefore from that angle
\nalso there appears to be a specific ban against the civil court
\nissuing process against such property and the order impugned deserves
\nto be quashed and set aside.\n<\/p>\n
4.4\tMr.\n<\/p>\n
Dave submitted that the suit itself was not maintainable as the
\ntransaction in question was that of money lending and clearly barred
\nas the plaintiff did not have money lender’s license and the
\ntransaction was that of money lending covered by the provisions of
\nthe Bombay Money Lenders Act.  He further submitted that this
\ntransaction cannot be saved by sub clause of section 2(9) and the
\ntransaction cannot be said to be against the Negotiable Instruments
\nAct as it is sought to be made.\n<\/p>\n
5.\tMr
\nTolia, learned advocate appearing for the respondent submitted that
\nthe revisions are misconceived and the same deserve to be dismissed.
\nHe has submitted that the contentions which have been canvased by the
\nlearned advocate for the petitioner before this court have
\nconspicuously been absent before the Executing Court and therefore
\nthese contentions are not required to be considered.\n<\/p>\n
5.1\tFurther
\nwithout prejudice to his contentions, Mr. Tolia has submitted that
\ndecrees cannot be said to be nullity so as to permit the defaulter
\nand the decree debtor to contend before the Executing Court that the
\nsuits were time barred.  Mr Tolia has relied upon the decision of the
\nApex Court in the case of  Ittyavira Mathai v. Varkey Varkey and<\/a>
\nanother reported in AIR 1964 SC 907 and submitted that in light
\nof the observation of the Apex Court it is not open to anyone to
\nresist the decree on the ground of suit itself being time barred.  A
\ndecree drawn by the competent court even after suffering from error
\nneeds to be respected and complied with unless it is reversed by the
\nappellate court and the debtor has no right to resist the execution
\nproceedings on such spacious plea especially when he permitted the
\nsuit to be proceeded exparte and when he did not bother to even apply
\nfor restoration under Order 37 Rule 4 nor did he bother to challenge
\nthe exparte decree by preferring First Appeal at a belated stage of
\nexecution.  Such a plea cannot be accepted and therefore the
\nExecuting Court has rightly passed the order.\n<\/p>\n
5.1\tWith
\nregard to the submission of statutory provisions, Mr. Tolia submitted
\nthat the rule pressed into service namely Rule of the Rules figuring
\nunder the Appendix to the Finance Act would not be so construed so as
\nto hinder the execution proceedings.  It is cast only with a view to
\nprotect the revenue and it is for the executing court to decide while
\nissuing the process as to whether the property in question is under
\nany encumbrance or any charge or proceedings by revenue authorities
\nor by other bankers.  Mr. Tolia submitted that there are various ways
\nto execute the decrees for realising the money and therefore this
\nsubmission would also be of no avail.  Mr Tolia submitted that
\nofcourse without prejudice such contentions were never raised before
\nthe Executing Court as he invited this Court’s attention to the
\nobjections at Ex. 9 as well as written submission at Ex. 15 wherein
\nin no way this objection has been articulated by the applicant and
\nwhen this is not contended it is not open to the applicant to contend
\nfor the first time before the Revisional Court and therefore on this
\ncount also Mr Tolia submitted that the petition deserves to be
\ndismissed.\n<\/p>\n
5.2\tMr.\n<\/p>\n
Tolia has also submitted that the reasoning applicable to reject the
\nsecond contention of the petitioner qua the statutory ban would also
\nbe applicable to answer the question with regard to the third
\ncontention and therefore he did not make submission on the third
\ncontention in particular.\n<\/p>\n
6.\tHeard
\nlearned counsel for the parties.  This court is of the considered
\nview that the following undisputed points deserve to be taken into
\nconsideration:\n<\/p>\n
The
\n\tcontentions were made way back in the year 1998 against a cheque of
\n\tan amount which included the interest to be paid on that amount
\n\twhich was borrowed.  The cheque which was issued was not honoured
\n\tand the defendant and the present respondent did not \teven have the
\n\tprincipal amount.\n<\/p>\n
The
\n\tpresent applicants have borrowed such type of amount from various
\n\tagencies and citizens and during this proceeding, Mr. Dave has
\n\tsubmitted that the applicants have not discriminated against anyone
\n\tand have paid 25% to these defendants also as he never wanted to
\n\tdiscriminate against them as  a policy matter. It appears that out
\n\tof around 334 cases only 90 cases remain because they are satisfied
\n\tafter taking 25% on account and there is solemn hope that he would
\n\tbe able to pay them later on.\n<\/p>\n
6.\tIt
\nremains to be noted that no action is taken for seeking restoration
\nand setting aside the exparte decrees. The court feels that if the
\nsuit was really time barred then it would have been an effective
\nground which would have been available for making an application for
\nserving as an exparte decree. The fact is that neither the
\napplication is made nor the decree is challenged by preferring First
\nAppeal till date and only an execution application is sought to be
\nresisted on spacious pleas.\n<\/p>\n
6.1\tSo
\nfar as the ground with regard to nullity is concerned, this Court is
\nof the view that the decree cannot be said to be nullity in view of
\nthe fact that the point of nullity or suit being time barred ought to
\nhave been debated before the appropriate forum and no debtor can be
\npermitted to ignore the decree on his understanding that decree is
\ntime barred.  The decree drawn by the competent court has to be taken
\nat its original conclusion and complied with unless and until it is
\nset aside by another appellate forum.  The ratio laid down by the
\nApex Court in the case of Tolia is clearly governing the present case
\nand therefore this Court need not elaborate upon this point.\n<\/p>\n
7.\tThis
\nbrings this Court to the second ground of statutory ban as one can
\nsee from the Rule basically framed for protecting revenue of the
\nState.  The State in a public policy cannot say that the Court shall
\nstay the execution proceedings for collecting and\/or protecting its
\nrevenue.  In short the Rule has wrongly been relied upon.  Rather it
\nis an attempt to thwart legitimate execution proceedings.  Suffice it
\nto say that the Executing Court shall bear in mind while issuing
\nprocess against any property that it is under the charge of income
\ntax department then only the process is not required to be issued
\nagainst that property but that in itself cannot be said to be a
\nground for dropping execution proceedings.\n<\/p>\n
8.\tThe
\naforesaid same reasoning would be applicable so far as the contention
\nregarding charge of IDBI and SBS banks is concerned.  In short, the
\nattempt does not seem to be inviting any interference by this Court
\nand therefore this Court is of the considered view that the
\napplication deserves to be dismissed with costs.\n<\/p>\n
9.\tAccordingly,
\nthis Civil Revision Application is dismissed with costs.\n<\/p>\n
10.\tIn
\nview of the order passed in the Revision Application, no order is
\npassed in both the Civil Applications.  Civil Applications stand
\ndisposed of accordingly.\n<\/p>\n
\t\t\t\t\t\t\t(S.R.BRAHMBHATT,
\nJ.)<\/p>\n
Divya\/\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Harshadrai vs These on 27 June, 2008 Bench: S.R.Brahmbhatt 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-7506","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nHarshadrai vs These on 27 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/harshadrai-vs-these-on-27-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Harshadrai vs These on 27 June, 2008 - 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