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2004 DIGILAW 374 (PAT)

Naresh Kumar v. State Of Bihar

2004-04-05

RADHA MOHAN PRASAD

body2004
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the Board. 2. In this writ petition, petitioner has prayed for quashing of the order dated 13.7.2002 and 29.7.2002 passed by the District Certificate Officer, Gaya for issuance of body warrant against him in Certificate case no. 87 of 1994-95. 3. It appears that one of the brothers of the petitioner also moved this Court with similar grievance in C.W.J.C. No. 9840 of 2002 which was disposed of vide order dated 18.2.2003, contained in Annexure-8 in the light of the Division Bench decision in the case of Kanhaiya Lal vs. State of Bihar, reported in 2002(2) PLJR 553 , according to which the certificate-holder can proceed only against the Company for realisation of its dues. This Court directed that "In other words, the petitioners cannot be proceeded against for the realisation of the certificate amount. It may be noted here that this writ petition succeeds on this point alone and, therefore, this Court is not taking note of some other submissions made by Mr. Rameshwar Prasad, assailing the certificate proceeding." 4. Learned counsel for the Respondents, however, ventured to submit that in that case the Court considering the claim of the petitioner that he was not one of the Directors disposed of the said writ application in the light of the Division Bench decision, but, in this case, Annexure-A to the counter affidavit would show that petitioner is one of the Directors and has made false statement that he is not the Director. 5. I failed to appreciate the said submission of the learned counsel for the Respondents. In the case of Kanhaiya Lal (supra) the Division Bench in similar case for realisation of electricity dues held that the liability of a Company cannot be enforced against its Officers including Director or Managing Director. Any debt payable can be realised only by seizing the assets of the Company and not by putting in prison the Managing Director or any of the officers of the company. In that view of the matter, this Court does not find any reason to deny the same relief as has been granted to his brother, namely, Mahendra Prasad in the earlier writ case. 6. In that view of the matter, this Court does not find any reason to deny the same relief as has been granted to his brother, namely, Mahendra Prasad in the earlier writ case. 6. Learned counsel for the Board then relied upon the order passed by the Division Bench in L.P.A. No. 184 of 2003 (Annexure-B) and contended that in view of the said order, the Director of a company cannot get away from the said liability. As such, according to him, the petitioner cannot assail the validity of the impugned order on the above ground. 7. In reply, learned counsel appearing for the petitioner submitted that from the order in L.P.A. No. 184 of 2003, it would appear that the earlier decision of the Division Bench in the case of Kanhaiya Lal was not brought to the notice of the latter Division Bench and, as such, the said order is per incuriam. In support of his submissions, he relied upon a catena of decisions of the Apex Court. These are (i) 1998(5) SCC 637 , (ii) 1990(3) SCC 682 and (iii) AIR 2003 S.C. 2443 . 8. I find substance in the submission of the learned counsel for the petitioner. It is by now well settled that the decision given by a court of co-ordinate jurisdiction in ignorance of the previous decision renders it per incuriam. It appears that the decision of the Division Bench in the case of Kanhaiya Lal (supra) was not brought to the notice of the latter Division Bench and the latter Division Bench took a different view in ignorance of the previous decision. 9. In view of the law settled on precedent that when a contrary view is taken by a co-ordinate Bench without noticing the previous decision on the point, the latter decision is not to be taken as precedent on the point [See 1998(1) PLJR 126-Sachchidanand Shukla v. Sudha Sinha]. 10. Thus, the certificate proceeding itself initiated against the petitioner, in the facts and circumstances aforementioned, is bad in law and the orders passed therein against him are also bad. 11. This writ petition is, thus, allowed with similar direction as is given in the case of Mahendra Prasad (C.W.J.C. No. 9840 of 2002) referred to above.