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Rajasthan High Court · body

2012 DIGILAW 2134 (RAJ)

Pawan Agarwal v. State of Rajasthan

2012-10-25

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—The petitioner – Proprietor of firm M/s B.R. Industries – has filed this writ petition inter alia challenging the order dated 03.03.2012, passed by the Additional Chief Judicial Magistrate (S.P.E. cases), Jaipur District, Jaipur on an application under Section 457 Cr.P.C. filed by the respondent-IndusInd Bank allowing the Bank to auction goods seized by the CBI in C.R. No.3/2011 registered for offences under Sections 406, 420 & 120 IPC. The case of the petitioner is that the order dated 03.03.2012 was passed by the learned ACJM on the basis of misrepresentation by the respondent-IndusInd Bank and the CBI as also concealment of an order dated 15.11.2010 passed by the Additional District Judge No.1, Kota dismissing an application for temporary injunction laid by one M/s. Bhandari Brothers – the commission agent – in respect of the goods pledged by the petitioner with the respondent-IndusInd Bank. It has also been prayed that direction be issued to the CBI to initiate a departmental inquiry against the erring officers of the CBI, who allegedly colluded with the officials of the respondent-IndusInd Bank in conceding before the court of ACJM on 03.03.2012 that goods seized in the course of investigation of C.R. No.3/2011, pending with them be auctioned. The alternative prayer in the writ petition is that the petitioner be refunded amounts determined at market rate in respect of seized goods wrongly auctioned by the respondent-IndusInd Bank in pursuance to the order dated 03.03.2012 passed by the court of ACJM. 2. The facts of the case are that the petitioner – Proprietor of firm M/s B.R. Industries – engages in the sale purchase of agricultural goods/seeds etc. The petitioner purchased certain agricultural produce allegedly on credit through a commission agent i.e. M/s Bhandari Brothers and pledged the said goods with the respondent-IndusInd Bank. 2. The facts of the case are that the petitioner – Proprietor of firm M/s B.R. Industries – engages in the sale purchase of agricultural goods/seeds etc. The petitioner purchased certain agricultural produce allegedly on credit through a commission agent i.e. M/s Bhandari Brothers and pledged the said goods with the respondent-IndusInd Bank. Apparently, following certain disputes between the commission agent i.e. M/s Bhandari Brothers on the one hand and the petitioner – Proprietor of M/s. B.R. Industries – on the other with regard to the unpaid price of goods sold, FIR No.204/2010 came to be lodged on 22.03.2010 by M/s. Bhandari Brothers through Pramod Bhandari at Police Station Vigyan Nagar, Kota for offences under Sections 406, 420, 120B IPC inter alia against the petitioner where fundamentally the allegation was that the goods delivered to the petitioner were unlawfully pledged with the respondent-IndusInd Bank and amounts obtained therefrom mis-utilised even while the outstanding for the goods in issue remained unpaid. M/s Bhandari Brothers also appears to have filed a suit before the court of Additional District Judge No.1, Kota. Along with the suit an application for temporary injunction was also filed. Therein it was prayed that without payment of consideration for the commodities purchased on credit and then pledged with the respondent-IndusInd Bank by the petitioner, the respondent-IndusInd Bank not be allowed to auction such pledged goods for recovery of the amount advanced thereagainst to the petitioner. It appears that the application for temporary injunction filed by M/s. Bhandari Brothers however came to be dismissed by the trial court on 15.11.2010 and as far as the civil aspect of the dispute is concerned, the matter appears to have rested as far as the temporary injunction application was concerned. 3. Investigation however appears to have continued into FIR No.204/2010 dated 22.03.2010 till it came to be transferred to the CBI following an order dated 08.12.2010 passed by this Court in S.B. Cr. Misc. Petition No.1028/2010 whereupon as stated earlier C.R. No.3/2011 for offences under Section 406, 420, 120B IPC had came to be registered by the CBI. 4. 3. Investigation however appears to have continued into FIR No.204/2010 dated 22.03.2010 till it came to be transferred to the CBI following an order dated 08.12.2010 passed by this Court in S.B. Cr. Misc. Petition No.1028/2010 whereupon as stated earlier C.R. No.3/2011 for offences under Section 406, 420, 120B IPC had came to be registered by the CBI. 4. The respondent-IndusInd Bank, in the meantime, as the pawnee of the goods pledged with it after due notice to the pawnor, the petitioner herein, proceeded to auction the goods pledged for recovery of outstanding amounts in the exercise of its power under Section 176 of the Indian Contract Act, 1872 (hereinafter 'the Act of 1872'). Bids on the public notice dated 17.03.2011 as notified by the respondent-IndusInd Bank were received from various interested parties. The bids were opened on 23.03.2011. Thereafter, the successful bidders were declared and letters issued to them to the extent of goods sold by the respondent-IndusInd Bank. On the receipt of sale proceeds of pawed goods to the extent sold at the auction, the commodities were released to the successful bidders. It however appears that some pledged goods could not be sold at the relevant time due to inadequate bids. No objections were raised by the petitioner with regard to auction of the pledged goods under Section 176 of the Act of 1872 at the relevant time. The pledged goods to the extent unsold at the auction pursuance to the notice dated 17.03.2011 were thereafter formally seized by the CBI in the course of investigation into C.R. No.3/2011 for offences under Sections 406, 420, 120B IPC. The respondent-IndusInd Bank taking into consideration that the unsold pledged goods at the auction on 23.03.2011 were of perishable nature and otherwise also gathering upon them warehouse rent and other charges including towards their insurance, moved an application, as advised, before the ACJM, Jaipur under Section 457 Cr.P.C. seeking permission of the court to auction the pledged goods seized by the CBI. A reply was filed to the said application under Section 457 Cr.P.C. by the CBI. A reply was filed to the said application under Section 457 Cr.P.C. by the CBI. The learned ACJM vide order dated 03.03.2012 in terms of the consent of the CBI and also taking into consideration the facts of the case more particularly the perishable nature of the pledged goods and the recurring charges on their maintenance exercised its power under Section 457 Cr.P.C. and issued direction that the seized goods be sold by a public auction after due notice to the pawnor and proceeds from the auction sale be kept in two FDRs in the name of the respondent-IndusInd Bank subject to further direction of the court in regard thereto. 5. In pursuance to the order dated 03.03.2012 aforesaid, passed by the ACJM, Jaipur, the respondent-IndusInd Bank proceeded to issue a notice dated 07.06.2012 to the petitioner as pawnor and Proprietor of M/s. B.R. Industries informing about the auction of the pledged goods of M/s. B.R. Industries and another M/s Banshilal Rameshwar Lal (business of the petitioner's father) by an open public auction to recover the amounts outstanding and overdue. In response to the notice dated 07.06.2012, the petitioner sent a legal notice dated 20.06.2012 to the respondent-IndusInd Bank objecting to the sale of the pledged goods on various counts. It was stated that the order of the ACJM dated 03.03.2012 did not authorise the respondent-IndusInd Bank to conduct an auction for the sale of the goods pledged by the petitioner. It was further stated that the respondent-IndusInd Bank was itself an accused in the matter under investigation with the CBI into C.R. No.3/2011. It was submitted that the court of the ADJ No.1, Kota vide its order dated 15.11.2010 having dismissed the application for temporary injunction filed by M/s Bhandari Brothers, the goods pledged could not be sold. It was claimed that the order dated 03.03.2012 passed by the ACJM was one obtained behind the back of the petitioner and collusive in nature whereunder the goods pledged were sought to be sold for a price lower than their market value. It was claimed that the order dated 03.03.2012 passed by the ACJM was one obtained behind the back of the petitioner and collusive in nature whereunder the goods pledged were sought to be sold for a price lower than their market value. It was submitted that the petitioner was at all any times ready to pay all the outstanding amounts of the respondent-Bank, yet owing to the collusive nature of the sale of the pledged goods purporting to be under the order dated 03.03.2012, passed by the court of ACJM, an attempt was being made to cause financial harm and loss to the petitioner. It was further submitted that there was no seizure in law in the course of investigation into C.R. No.3/2011 being investigated by the CBI as mere seizure of the warehouse receipts did not constitute a valid seizure. On the aforesaid defences/objections against the proposed sale by way of auction of the goods pledged, it was submitted that the auction proposed for 22.06.2012 be cancelled and statement of accounts qua M/s. B.R. Industries be conveyed to the petitioner within a period of three days. 6. On receipt of the legal notice dated 20.06.2012, the respondent-IndusInd Bank through its counsel sent a reply stating that the order dated 03.03.2012, under Section 457 Cr.P.C. was passed in view of the perishable nature of the pledged goods. Open auction was to take place after due notice to the pawnor i.e. the petitioner. It was submitted that the sale proceeds received at the auction were to be kept under two separate FDRs which were to abide further orders of the court. It was also pointed out that the earlier auction where a large quantity of the petitioner's pledged goods were sold on 23.03.2011 were in the knowledge of the petitioner and yet no objection thereto had been raised at any point of time. The sequiter was that when in respect of the earlier auction of part of the pledged goods there had been no objections, there was no occasion to raise a hue and cry about the auction of the remainder goods, this time albeit under the order of the learned ACJM, Jaipur passed on 03.03.2012. 7. The sequiter was that when in respect of the earlier auction of part of the pledged goods there had been no objections, there was no occasion to raise a hue and cry about the auction of the remainder goods, this time albeit under the order of the learned ACJM, Jaipur passed on 03.03.2012. 7. It appears that on receipt of the respondent-IndusInd Bank's notice dated 07.06.2012 for conduct of auction of the remainder pledged goods in pursuance of the order dated 03.03.2012, passed by the ACJM, the petitioner filed S.B. Cr. Misc. Petition No.2071/2012 before this Court. On the matter coming up before this Court on 28.06.2012, this Court directed that the auction held on 22.06.2012 not be finalized. Thereafter, the matter come up before this Court on 03.07.2012. On the said date, the counsel for the petitioner prayed for withdrawal of the criminal misc. petition with liberty to file a writ petition within a period of three days. It was also prayed by the counsel for the petitioner therein that for a period of three days, the order dated 28.06.2012 referred to hereinabove be allowed to remain operative. On the request so made by the counsel for the petitioner in criminal misc. petition No.2071/2012, it was dismissed as withdrawn with liberty to the petitioner to lay a writ petition. The Court further directed that the order dated 28.06.2012 would continue/ be operative for a period of three days from 03.07.2012. 8. This writ petition has been filed in pursuance to the liberty granted by this Court in its order dated 03.07.2012. 9. I have heard the counsel for the petitioner as also the respondent-IndusInd Bank and perused the writ petition and annexures thereto. 10. Before addressing the writ on the merits, this Court would seek to consider the manner in which writ proceedings in the present case have been taken by the petitioner. A petition under Section 482 Cr.P.C. was earlier filed against the order dated 03.03.2012, passed by the ACJM (SPE Cases), Jaipur. Inexplicably after having been granted an interim order by this Court on 28.06.2012 in S.B. Criminal Misc. Petition No2071/2012, the said proceedings were withdrawn on 03.7.2012. No reasons for the withdrawal have been set out in the order dated 03.07.2012, passed by this Court. Yet the petitioner sought to withdraw a criminal misc. Inexplicably after having been granted an interim order by this Court on 28.06.2012 in S.B. Criminal Misc. Petition No2071/2012, the said proceedings were withdrawn on 03.7.2012. No reasons for the withdrawal have been set out in the order dated 03.07.2012, passed by this Court. Yet the petitioner sought to withdraw a criminal misc. petition and instead agitate the matter in writ jurisdiction of this Court under Article 226 of the Constitution of India. The issue is as to whether a petition under Section 226 of the Constitution of India would be maintainable in respect of matters under the Code of Criminal Procedure such an order passed under Section 457 Cr.P.C. when there is an adequate and statutory remedy against the orders passed by the competent criminal courts. The remedy under Article 226 of the Constitution of India is an equitable extraordinary remedy. It is trite that the said remedy is not available in situations of an adequate alternately efficacious remedy being available. An order passed under Section 457 Cr.P.C. is indeed a revisionable order as held by this Court in the case of Ganesh vs. The State & Anr. (1988 Crl. L.J. 475 = 1987 RLW 404). The relevant para 7 whereof is as under : With regard to the view of the Sessions Judge, Pratapgarh, suffice it to state that an order passed by a Magistrate under Section 457 Cr.P.C. is a final order and not merely an interlocutory order. On a proper cause being made, the High Court has jurisdiction to examine orders passed under the said section by a Magistrate. 11. The Hon'ble Supreme Court in the case of State of Maharashtra vs. Farook Mohammed Kasim Mapkar & Ors. ( (2010) 8 SCC 582 ) has held that when a remedy is available under the Code of Criminal Procedure, no writ petition ought to be entertained. Further, in the case of Mosaraf Hossain Khan vs. Bhagheeratha Engg. Ltd. & Ors. ( (2006) 3 SCC 658 ) the Hon'ble Supreme Court has held that against an order of cognizance, no writ would be maintainable and the petitioner in such situation would be well advised to avail the remedy under the Code of Criminal Procedure. The legal position therefore is to my mind quite clear. Ltd. & Ors. ( (2006) 3 SCC 658 ) the Hon'ble Supreme Court has held that against an order of cognizance, no writ would be maintainable and the petitioner in such situation would be well advised to avail the remedy under the Code of Criminal Procedure. The legal position therefore is to my mind quite clear. It is that when an order is passed in the course of investigation as under Section 457 Cr.P.C. or in the course of trial, the remedy to the aggrieved party is a remedy by way of a revision or where revision is not maintainable – the order impugned being interlocutory, a misc. cri. petition under Section 482 Cr.P.C. Oddly against the obtaining legal position after having availed of a petition under Section 482 Cr.P.C. and having been granted an interim order by this Court on 28.06.2012, the petition was withdrawn albeit with liberty. The liberty granted by this Court however would not be construed as a licence or of necessity create an immutable right to lay a writ petition. The maintainability of the writ petition or the jurisdiction of this Court to interfere the writ petition would still be the subject matter to be addressed in accordance with law. To my mind, therefore this writ petition deserves to be dismissed on the ground that the petitioner had an alternative remedy against the order dated 03.03.2012 passed by the ACJM (SPE Cases), Jaipur and could file revision petition before the revising court (Sessions Court) or even a petition under Section 482 Cr.P.C. (subject to just objections) before this Court. I would therefore have dismissed the writ petition on this ground alone notwithstanding the liberty sought to lay a writ petition and granted by this Court under its order dated 03.07.2012 in SB Cr. Misc. Petition No.2071/2012. However as the matter has been heard at length, the merits of the contentions in the writ petition are also being addressed. 12. Counsel for the petitioner has submitted that the order dated 03.03.2012, passed by the ACJM is wholly illegal and invalid inter alia on the ground that the same was obtained based on playing a fraud upon the court of the ACJM. 12. Counsel for the petitioner has submitted that the order dated 03.03.2012, passed by the ACJM is wholly illegal and invalid inter alia on the ground that the same was obtained based on playing a fraud upon the court of the ACJM. This contention is based on the allegation that the court of the ACJM was not made cognizant of its earlier order dated 14.02.2012 as also the fact of the dismissal of the temporary injunction application by the court the ADJ No.1, Kota on 15.11.2010. It would be appropriate to forthwith deal with the aforesaid contention. The order dated 14.02.2012, earlier passed by the ACJM, Jaipur on the application under Section 457 Cr.P.C. filed by the respondent-IndusInd Bank only indicates that it was alleged before the court that in spite of a purported seizure by the police in the course of investigation into CR No.3/2011, the pledged goods had been partially sold on 23.03.2011. The court observed in the context of the aforesaid allegation that it be informed about the action taken by the CBI against the sale of the pledged goods in spite of the said goods having been seized by the police in the course of investigation. The court also required to be informed as to how much goods has been earlier sold and what quantity of the pledged goods remained unsold. Thereafter the matter appears to have come up before the Court on 03.03.2012. The order passed by the court on the said date – impugned in this writ petition – indicates that the case diary of the case was presented before the court and carefully perused by it. The counsel for the CBI and the applicant-IndusInd Bank were heard. Thereupon the court of the ACJM in the exercise of its discretion under Section 457 Cr.P.C. (which provides for the passing of “such orders as he thinks fit respecting the disposal of the such property”) took note of the fact that the goods pledged were perishable items and it would be just and proper to sale the same by an open public auction after due notice to the interested parties including the petitioner who is an accused under investigation along with the respondent-IndusInd Bank. The court also made it clear that the goods would be sold on “as is where is basis” at a public auction and the entire proceeds of the auction would be kept in two FDRs in the name of the respondent-IndusInd Bank. The appropriation of the FDRs would abide the orders of the court. In my considered opinion, in the facts of the case there is no material before this Court to come to the conclusion that the order dated 03.03.2012 was vitiated by any fraud on the court of the ACJM as alleged. No application was moved by the petitioner before the court of the ACJM concerned to bring the aforesaid allegation of fraud to its notice. Further in my considered view, the order dated 15.11.2010 passed by the ADJ No.1, Kota had no bearing on the exercise of discretion under Section 457 Cr.P.C. by the competent court. Under the said order dated 15.11.2010, passed by the ADJ No.1, Kota it was merely held that M/s Bhandari Brothers had no legal rights prima facie or otherwise to seek an injunction with regard to the sale of the goods pledged by the petitioner with the respondent-IndusInd Bank. Nothing in the said order dated 15.11.2010 even remotely had any bearing on the exercise of discretion under Section 457 Cr.P.C. by the learned ACJM in passing the impugned order dated 03.03.2012. I thus find no substance in the contention agitated by the counsel for the petitioner that the order dated 03.03.2012 was obtained by fraud on the court including concealment of the order dated 14.02.2012 passed by the ACJM, Jaipur and the order dated 15.12.2011 passed by the court of ADJ No.1. 13. The further contention of the counsel for the petitioner is that the officers of the CBI colluded with the officers of the respondent-IndusInd Bank in giving consent for the auction of the pledged goods resulting in the passing of the impugned order dated 03.03.2012, by the court of ACJM. In my considered opinion, the said allegation is of no substance as neither the officers of the CBI, nor the officers of the respondent-IndusInd Bank who are alleged to have colluded have been impleaded as parties in the writ petition. In my considered opinion, the said allegation is of no substance as neither the officers of the CBI, nor the officers of the respondent-IndusInd Bank who are alleged to have colluded have been impleaded as parties in the writ petition. Aside of that, it has to be taken into consideration that the pledged goods in the first instance (70% thereof) had been auctioned by the respondent-IndusInd Bank on 23.03.2011 about a year prior to the passing of the order dated 03.03.2012. No objection with regard to the said auction of the pledged goods was ever taken by the petitioner. Further, admittedly the goods pledged, which were agricultural products, were perishable in nature and would deteriorate with every passing day and month. Additionally the storage of the said pledged goods was being visited with recurring warehouse charges as also storage charges all to accrue to the account of the petitioner's firm i.e. M/s. B.R. Industries. The public auction of the goods pledged therefore by all reasoning was to mitigate the losses to the account of the petitioner's proprietorship firm. To ensure transparency the auction was to be notified and as a public auction to facilitate maximum participation and optimization of the price of the goods sold. The petitioner himself was to be notified and indeed was so under the Bank's notice in this regard issued on 07.06.2012. The transparency of the entire process is indicative of the fact that there was no room whatsoever for any collusion or any conspiracy to cause harm to the petitioner. Aside of the aforesaid facts, in an identical fact situation in S.B. Civil Writ Petition No.2041/2010, this Court at the instance of another Bank under its order dated 30.11.2010 had directed that the goods pledged with the Bank by the accused be disposed of through public auction after issuance of prior notice to the parties concerned. As in writ petition No.2041/2010 decided on 30.11.2010, the learned ACJM in his order dated 03.03.2012 had also directed that the amount received from the sale of pledged goods at the open auction would be retained in two FDRs and which would abide the final decision in the matter pending investigation by the police. As in writ petition No.2041/2010 decided on 30.11.2010, the learned ACJM in his order dated 03.03.2012 had also directed that the amount received from the sale of pledged goods at the open auction would be retained in two FDRs and which would abide the final decision in the matter pending investigation by the police. In view of the aforesaid facts, the allegation of collusion between the officers of the CBI and the officers of the respondent-IndusInd Bank none of whom had been impleaded as party in the present writ petition, is quite plainly a desperate allegation casually made misusing the freedom of laying proceedings before this Court under Article 226 and 227 of the Constitution of India. 14. It has been further contended by the counsel for the petitioner that there was no seizure in accordance with law by the police in the course of the criminal investigation as the seizure of warehouse receipts which even though documents of title does not amount to actual physical seizure of the goods as required under Section 457 Cr.P.C. It is submitted that in this view of the matter, there was no occasion to move an application under Section 457 Cr.P.C. or entertain and the order dated 03.03.2012 passed by the ACJM is therefore wholly without jurisdiction. However, no provision of law or authority has been cited in support of the aforesaid submission. On the contrary, under Section 102 Cr.P.C. provides that any police officer has the power to seize any property which is alleged or suspected to have been stolen or which is found under circumstances which create suspicion of the commission of any offence. In the case at hand, pursuant to the lodging of the FIR with regard to the goods in issue, the officer investigating the case thus had the power to seize the same. To my mind, constructive possession of the goods in the course of investigation of a criminal case such as by way of seizure of warehouse receipts pertaining to warehoused goods tantamounts to actual possession. The quantum of the agricultural goods stored in a proper warehouse could not be conceivably carried by the investigation officer to the police station or elsewhere. To my mind, constructive possession of the goods in the course of investigation of a criminal case such as by way of seizure of warehouse receipts pertaining to warehoused goods tantamounts to actual possession. The quantum of the agricultural goods stored in a proper warehouse could not be conceivably carried by the investigation officer to the police station or elsewhere. Thus, I find no force in the contention of the counsel for the petitioner that the goods in issue not having been lawfully seized in the course of investigation into C.R. No.3/2011, an application for their auction by resort to Section 457 Cr.P.C. was not maintainable. 15. The further case set up by the counsel for the petitioner is that the auction under the order dated 03.03.2012, passed by the court of ACJM was even otherwise bad on the ground that following the earlier auction dated 23.03.2011 an excess amount of Rs.18,06,631/- was lying in deposit in the petitioner's proprietor firm's account. No further amounts were due and recoverable from the petitioner's firm submits counsel. It is submitted that this fact was an admitted one as would be evident from para 8 of the respondent-IndusInd Bank's own application moved before the ACJM (SPE Cases), Jaipur on 13.12.2011. The respondent-IndusInd has in its return submitted that out of the said amounts it was entitled to recover various charges expanded by it on payment of the warehouses charges to get the goods released and also payment of charges claimed by National Block Handling Cooperation (NBHC) towards storage charges, aside of insurance charges on the stored goods etc. In my considered opinion, the legality or otherwise of auction of pledged goods is a matter fully covered under the provisions of Section 172 to Section 178 of the Act of 1872. Under Section 172 of the Act of 1872 the petitioner is the pawnor and the respondent-IndusInd Bank is the pawnee. Section 173 of the Act of 1872 provides that the pawnee may retain the goods pledged not only for payment of the debt or the performance of the promise, but also for the interest on the debt and all necessary expenses incurred by him in respect of the possession and/or for the preservation of the goods pledged. Section 173 of the Act of 1872 provides that the pawnee may retain the goods pledged not only for payment of the debt or the performance of the promise, but also for the interest on the debt and all necessary expenses incurred by him in respect of the possession and/or for the preservation of the goods pledged. Section 175 of the Act of 1872 further provides that pawnee is entitled to receive from the pawnor extraordinary expenses incurred by him for the preservation of the goods pledged. Under Section 176 of the Act of 1872 it has been provided that if the pawnor makes default in payment of the debt, or performance, at the stipulated time, of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security or he may sale the thing pledged on giving the pawnor reasonable notice of the sale. Section 177 of the Act of 1872 provides that the pawnor may redeem the goods at any subsequent time, but before the actual sale subject to the caveat that he must, in that case, pay, in addition, any expenses which have arisen from his default aside of the amount due to the pawnee in terms of the agreement between the pawnor and the pawnee. Section 178 of the Act of 1872 provides that where a mercantile agent as defined in the Sale of Goods Act, 1930 is in possession of the goods or documents of title, any pledge made by him acting in the ordinary court of his business shall be valid as if he were expressly authorised by the owner of the goods to make the same – subject to the condition that the pawnee acts in good faith and at the time of pledge of goods had no notice that the pawnor had no authority to pledge. 16. In the context of the aforesaid provisions of the Act of 1872, it is thus clear that the goods in issue having admittedly been pawned by the petitioner with the respondent-IndusInd Bank and the pawnor having defaulted in his obligation to the pawnee to repay the debt as agreed, the respondent-IndusInd Bank as the pawnee had the right to sale the goods. The only issue to be determined would be as to whether the pawnor in default at the time relevant to the sale of pledged goods had before the sale of pledged goods adequate notice from the pawnee. It is not in dispute in the present case that the notice was indeed given by the pawnee i.e. the respondent-IndusInd Bank to the petitioner as the pawnor. The case of the petitioner as the pawnor however is that there was surplus monies in his bank account at the time of subsequent auction sale of 22.06.2012 in pursuance to the order dated 03.03.2012, passed by the ACJM and consequently the sale was invalid. The respondent-IndusInd Bank as the pawnee on the other hand contends that various amounts were due and outstanding against the pownor and consequently, the subsequent sale in terms of the order dated 03.03.2012 passed by the ACJM was a valid sale. The respective contentions are on the face of it grossly disputed questions of fact which need to be addressed and in fact can only be addressed in the course of a regular trial where accounts would be required to be taken and expenses claimed by the respondent-IndusInd Bank to be determined for coming to a conclusion as to whether the auction sale in pursuance to the order dated 03.03.2012 was a valid sale to recover outstanding amounts to which the pawnor was in default. In the event under Section 176 of the Act of 1872 if a sale of pledged goods is not validly made, the pawnor is entitled to damages. It has been held by the Andhra Pradesh High Court at Hyderabad in the case of Srirama Finance Corporation, Bobbili, Srikakulam District a Partnership Firm by their Managing Partner Sri C.V. Seetharamaswamy vs. Chatla Yellaiahreddi & 2 Ors. ((1976) I An. W.R. 107) that unlawful sale of pledged goods would render a pawnee liable to the damages to the pawnor for the loss sustained by him. The petitioner thus has a right to claim a declaration that the sale of pledged goods was invalid and illegal in the circumstances obtaining if proved to the satisfaction of the trial court. W.R. 107) that unlawful sale of pledged goods would render a pawnee liable to the damages to the pawnor for the loss sustained by him. The petitioner thus has a right to claim a declaration that the sale of pledged goods was invalid and illegal in the circumstances obtaining if proved to the satisfaction of the trial court. Prior to that situation obtaining, however under Section 177 of the Act of 1872, the pawnor even if in default, has a right to redeem goods pledged before the actual sale of the pledged goods on payment of the amount claimed by the pawnee. In the instant case, rather than rush to this Court invoking its equitable and extraordinary jurisdiction under Article 226 of the Constitution of India, it was for the petitioner as the pawnor to approach the respondent-IndusInd Bank seeking accounts of amount outstanding and if any outstanding were stated due, to offer to pay themand obtain the release of the pledged goods. None of the various remedies available to the petitioner in respect of the alleged illegal sale of the pledged goods as provided for in law quite evidently have been taken. Instead the petitioner ill advisedly has rushed to this Court. Consequently, in my considered opinion, writ proceedings are not the proper proceedings for agitating the alleged satisfaction of the dues of the Bank by the petitioner and thereupon to seek a declaration that the auction sale of the pledged goods by the respondent-IndusInd Bank as the pawnee is liable to be quashed and set aside. 17. I therefore find no force in the writ petition and the same is liable to be dismissed. Stay application dismissed.