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2010 DIGILAW 261 (GAU)

Axis Bank Ltd. v. Anupam Acharjee

2010-04-16

UTPALENDU BIKAS SAHA

body2010
ORDER U.B. Saha, J. 1. Heard Mr. P. Chakraborty, learned Counsel for the respondent-petitioner Bank. Also heard Mr. S. Deb, learned senior counsel assisted by Mr. R. K. Das, learned Counsel for the writ petitioner-respondents and Mr. N. Majumder, learned Counsel for the respondents No. 4 and 5 in the writ petition. 2. The instant application is filed by the respondent creditor Bank for granting them leave to sell out the secured assets of the writ petitioners already in their possession and also for vacating the interim order dated 4-12-2009 passed by this Court in Civil Application No. 392 of 2009 arising out of W.P. (C) No. 381 of 2009 whereby and whereunder this Court after hearing Mr. S. Deb, learned senior counsel for the writ petitioners came to a conclusion that an ad interim order was called for and accordingly, as an interim measure, it was ordered that the secured assets shall not be sold out without leave of this Court. This Court also granted liberty to the respondents to file application for modification/alteration of the said interim order and disposed of the said Misc. Application. 3. It is the admitted position that the aforesaid interim order was passed in absence of the respondents. Being aggrieved by the aforesaid ex parte order, the creditor respondent Bank filed the instant application on 18-1-2010 and the said application came up before this Court time and again. Some time the respondent creditor Bank who are the petitioners herein and some time both the parties prayed for time and due to such prayer of the parties, the instant application for vacating the interim order dated 4-12-2009 could not be disposed of. Ultimately on 9-4-2010. This application was taken up for hearing and the matter was partly heard fixing 12-4-2010 for further hearing. On that date again the matter was heard and fixed today for further hearing. Accordingly, the matter is taken up today. 4. When the matter is called on today for hearing again, Mr. Ultimately on 9-4-2010. This application was taken up for hearing and the matter was partly heard fixing 12-4-2010 for further hearing. On that date again the matter was heard and fixed today for further hearing. Accordingly, the matter is taken up today. 4. When the matter is called on today for hearing again, Mr. Chakraborty, learned Counsel for the respondent creditor bank, petitioners herein contended that in view of the provision of Article226(3) of the Constitution, the interim order passed by this Court on 4-12-2009 in CM Application No. 392 of 2009 (disposed of) arising out of W.P. (C) No. 381 of 2009 has automatically stood vacated as the instant petition for vacating the interim order has not been disposed of by this Court within a period of two weeks from the date on which it was received by the Registry of this Court. He further contended that if the application for vacation of the interim order is not disposed of within the stipulated period either for the reason that the writ petitioners or the respondents prayed for time, the prescription of the Constitution is the High Court shall dispose the said petition within the period of two weeks from the date on which it was received or from the date on which the copy of such application was furnished to the party in whose favour such order has been made, whichever is later and if the High Court is closed then on the last day of the said period, the interim order shall stand vacated if the application is not disposed of before the expiry of the next day on which the High Court is open. He also contended that the writ petition filed by the petitioners is not maintainable as the respondent creditor Bank has also approached the Debt Recovery Tribunal. 5. In support of the aforesaid contention, Mr. Chakraborty placed reliance on the decision of this Court in South East Bus Association v. The State of Assam, reported in (1981) 1 GLR 305. 6. On the other hand, Mr. Deb, learned senior counsel for the writ petitioners, respondent herein submits that as the respondent creditor Bank took time on various dates and the delay was caused for disposal of the instant application due to seeking time by the respondent creditor Bank, the rigour of Article 226(3) of the Constitution will not apply in the case in hand. Deb, learned senior counsel for the writ petitioners, respondent herein submits that as the respondent creditor Bank took time on various dates and the delay was caused for disposal of the instant application due to seeking time by the respondent creditor Bank, the rigour of Article 226(3) of the Constitution will not apply in the case in hand. He also submits that the fact involved in the case of South East Bus Association (supra) is different from the case in hand. In that case on 9-7-1981 when the matter came up both the parties prayed for time and the Court passed an order, inter alia, let the matter come up in the first week of August, 1981 for consideration of the stay order as prayed for by the learned Counsel for both parties. In the meantime, the petitioner may file objection, if any and again on 21-8-1981 when the stay matter was listed for hearing, the petitioner's counsel took up for a week and the counsel for the respondent made no objection to the adjournment' and the Court passed an order to the effect that hearing for consideration of the vacating and/or modification of the stay order was taken up on 22-9-1981, and learned Counsel of both parties were heard and the matter was concluded on 23-9-1981. 7. As this Court has taken up this application for vacating the interim order dated 4-12-2009, it would not be proper for this Court to discuss regarding the merit of the writ petition as it would affect the rights of the parties. 8. This Court has gone through the judgment of this Court in South East Bus Association (supra) wherein His Lordship N.I. Singh (J) the then carefully considered Article 226(3) of the Constitution and also took note of the decision of the Rajasthan High Court in Gheesa Lal v. State of Rajasthan reported in AIR 1981 Raj 65 wherein the learned single Judge of the said High Court held the view that in case the application filed by the party against whom ex parte order was passed is not disposed of within the specified period, the ex parte stay order should stand vacated automatically. His Lordship also noted therein that he was in respectful agreement with the views above that the party who obtained ex parte order behind the back of the other party should be vigilant to get it affirmed. His Lordship also noted therein that he was in respectful agreement with the views above that the party who obtained ex parte order behind the back of the other party should be vigilant to get it affirmed. After admitting on opportunity to the other side of hearing it and in case after obtaining the ad interim order the petitioner fails to discharge his duty and prolongs ex parte ad interim order, he can do so at his own peril. His Lordship also discussed the meaning of 'to dispose of' and stated that it would mean in the contend ''to set place or turn to a particular end or consequence". The ordinary dictionary meaning of the expression is "to arrive at a definite conclusion". 9. On going through the aforesaid views of His Lordship Justice Singh, the then, this Court is of the considered view that the submission of Mr. Chakraborty has some force and the case in hand is fully covered by the decision in South East Bus Association (supra). Whatever may be the reason, fact remains the application for vacating the interim order of this Court dated 4-12-2009 in absence of the respondent creditor bank, petitioners herein could not be disposed of within the stipulated period as prescribed by the Constitution makers and due non-disposal of the said application within the stipulated period either for the fault of the Court or for the parties, the ex parte ad interim order dated 4-12-2009 passed by this Court in CM application No. 392 of 2009 stood automatically vacated after completion of two weeks from the date of receipt of the application for vacating the interim order by the Registry of this Court or from the date on which the copy of such application is so furnished to the party in whose favour such order is made whichever is later and it is declared as such. 10. Copy of this order be placed in the connected writ petition. The CM Application stands disposed of. Order accordingly.