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2013 DIGILAW 320 (HP)

Punjab & Sind Bank v. Sarabjit Singh

2013-04-17

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, Judge This order shall dispose of an application for modification of order dated 11.3.2004 passed in OMP No. 360 of 2003 and for restraining the Assistant Commissioner-cum-Land Acquisition Collector (Railway), Una from releasing the amount of compensation of land in favour of the respondent Sarabjit Singh with further order to attach the compensation amount and keep the said amount in fixed deposit till the decision of the suit. 2. The applicant has filed a suit against respondent for recovery of ‘ 36,67,933/- alongwith future interest at the rate of 18% per annum on the allegations that respondent at the relevant time was working as Clerk cum-Cashier at Mubarakpur. He was a local resident and knew most of the account holders personally. He used to take money from them, give them receipts and enter the amount in the pass books of the customers. However, he would not make the entry in the ledgers of the bank. Similarly, while making payments to the parties, he would show the amounts withdrawn by the parties. The withdrawals would always be reflected in the pass books but sometimes he would not enter the same in the bank ledgers. Some complaints were received from the account holders. It was found that the respondent has misappropriated atleast an amount of ‘ 36,67,933/-. This amount had already been paid by the bank to various customers of the bank and for recovery of that amount the suit has been filed. The suit is still pending. 3. The applicant moved OMP No. 360 of 2003 under Order 38 Rule 5 read with Order 39 Rules 1 & 2 and Section 151 CPC for attachment etc. of the land of respondent. On 28.11.2003 on the application, this Court has passed the following order: “Learned counsel appearing for the defendant prays for and is granted two weeks time to file reply. In the meanwhile, status quo as of today in respect of the property to be attached shall be maintained by the parties. Replication to the written statement shall also be filed within four weeks. List thereafter. Dasti copy on usual terms.” On 11.3.2004 the following order was passed: “OMP No. 360/2003 Heard learned counsel for the parties. Order dated 28th November, 2003 is made absolute till the disposal of the suit. The application is disposed of. Replication to the written statement shall also be filed within four weeks. List thereafter. Dasti copy on usual terms.” On 11.3.2004 the following order was passed: “OMP No. 360/2003 Heard learned counsel for the parties. Order dated 28th November, 2003 is made absolute till the disposal of the suit. The application is disposed of. C.S. No. 24/2003 Be listed before the Registrar (Vigilance) for admission and denial of the documents.” On 19.6.2012 in OMP No. 198 of 2012 this Court has passed the following order:- “The file of civil suit has not been put up since, as submitted, the same has been sent to Una for recording of evidence. Notice dasti be issued to the respondent returnable for 24th July, 2012. Steps be taken within 7 days. Till the next date, the respondent is restrained from receiving compensation of land from Land Acquisition Collector, Railway, Una.Post on 24th July, 2012. Authenticated copy.” 4. In compliance to the order of the Court necessary entry vide Rojnamcha No. 196 dated 8.12.2003 was made. The land of the respondent during the pendency of the suit was acquired by the Indian Railway. The respondent moved an application dated 25.2.2012 to the Land Acquisition Collector (Railway), Una (for short Land Acquisition Collector) for release of the amount of compensation. The application was contested by the applicant. The Land Acquisition Collector orally observed that unless there was a stay order from the High Court he would release the amount of compensation to the respondent. 5.The suit amount on 23.2.2003 at the time of filing of the suit was ! 36,67,933/-. The amount has increased during the pendency of the suit in view of claim of interest in the suit. The amount of compensation payable to respondent by the Land Acquisition Collector on account of acquisition of land of the respondent is about ! 20,00,000/-. There is no other immoveable property of the respondent available for attachment to secure the amount to be recovered from the respondent after the decree which may be passed against the respondent. It will not be possible for the applicant to recover the amount from the respondent. The prayer has been made for attachment of amount of compensation and keeping the same in fixed deposit. It will not be possible for the applicant to recover the amount from the respondent. The prayer has been made for attachment of amount of compensation and keeping the same in fixed deposit. It has been stated that due to change of circumstances during the pendency of the suit, the necessity has arisen for modification of order dated 28.11.2003 and 11.3.2004 passed in OMP No. 360 of 2003. 6. The respondent has contested the application by filing reply. It has been stated that under Section 52A added in the Land Acquisition Act, 1894 by Himachal Pradesh Act No. 17 of 1986, the compensation awarded under the Land Acquisition Act is neither attachable nor it can be unlawfully detained. The respondent has come to know that the applicant has moved another application for attachment of the land of Khewat No.325. As per law only land, which has been mortgaged by the loanee or a person, who has obtained decree, in law is entitled to move an application for attachment of land. 7.The land of respondent comprised in Khewat Nos. 293, 294, 295, 296, 297, 299 to 304 has been attached vide Rapat Rojnamcha dated 8.12.2003. The land of Khewat No. 325 has been acquired and compensation has been awarded which cannot be attached. It has been denied that Railway has acquired the land qua which restraint orders were passed by this Court. The land of respondent has already been got attached by the applicant which is sufficient to meet the requirement of decree, if any passed against the respondent. The respondent has prayed for dismissal of the application. 8.The applicant has filed rejoinder and reiterated the stand taken in the application. It has been stated that it is not a case where any attachment of Khewat No. 325 is being sought by the applicant, the land which has been acquired by the Railway stands already attached vide Rapat Rojnamcha dated 8.12.2003. The khewat numbers have been changed in the latest jamabandi which in no way affect the orders earlier passed by this Court. 9.I have heard the learned counsel for the parties and have also perused the suit file. The khewat numbers have been changed in the latest jamabandi which in no way affect the orders earlier passed by this Court. 9.I have heard the learned counsel for the parties and have also perused the suit file. The prayer made in OMP No. 360 of 2003 is as follows: “It is, therefore, respectfully prayed that the present application may be allowed and during the pendency of the suit, the defendant should be directed to furnish security in the sum of ` 36,67,933/- and in case he fails to furnish such security, the property situate in Village Bhanjal, Up Mohal Bhaira Nagar, Tehsil Amb, District Una as per jamabandi for the year 1998-99 attached herewith situated in Khewat No. 293, Khatauni No. 666, Khasra No. 914, 920, 955, 971, 999, 1000, 1002, 1003, 1035, 1163, 1207, 1377, 1378, 1391, 1402, 1404, 1405, 1406 measuring 1-83-80 hectares in which the defendant has half share; Khewat No. 301, Khatauni No. 683, Khasra No. 1403, Khasra Nos. 1403 and 1403/1 measuring 0-01-37 hectares owned by the defendant; Khewat No. 303, Khatauni No. 685, 686, 687, 688 Khasra No. 139, 141, 144, 184, 421, 444, 445, 478, 479, 1184, 1160, 1176/1, 1177, 1191 and 480 measuring 2-94-78 hectares may be attached. In the alternative the defendant may be restrained from selling, alienating, mortgaging in any other manner, transferring the said property. The translation of Annexure A-1 may be got done from the official translator of this Hon’ble Court at the cost of the applicant/plaintiff.” 10.The respondent in the application dated 25.2.2012 moved before the Land Acquisition Collector has stated that his land comprised in Khasra No. 421/1,444/2, 445/1, 478/1, 479/1/5, 480/1 village Bhanjal (Maira Nagar) Tehsil Amb has been acquired by the Land Acquisition Collector on behalf of General Manager Northern Railway for laying of Nangal Dam to Talwara Railway Line. The applicant has placed on record a copy of jamabandi 2008-09 Mauza Bhanjal, Up Mohal Maira Nagar regarding land comprised in Khewat No. 325 /308 min, Khasra Nos. 914, 920, 955, 971, 999, 1002, 1003, 1035, 1163, 1207, 1377, 1402, 1404, 1405 and 1406. There is a note in the jamabandi that vide Rapat Rojnamcha No. 196 dated 8.12.2003 and High Court order in case No. 24 of 2003 dated 28.11.2003 there is status quo order regarding the share of Sarabjit Singh and Sarabjit Singh cannot transfer this land. 11. There is a note in the jamabandi that vide Rapat Rojnamcha No. 196 dated 8.12.2003 and High Court order in case No. 24 of 2003 dated 28.11.2003 there is status quo order regarding the share of Sarabjit Singh and Sarabjit Singh cannot transfer this land. 11. The respondent in reply to OMP No. 198 of 2012 has stated that the land of Khewat No. 325 has been acquired and compensation has been awarded. The copy of jamabandi 2008-09 reveals that Khasra Nos. 914, 920, 955, 971, 999, 1002, 1003, 1035, 1163, 1207, 1377, 1402, 1404, 1405 and 1406 are part of Khewat No. 325. These khasra Numbers are included in the prayer in OMP No. 360 of 2003. Khasra Nos. 421/1,444/2, 445/1, 478/1, 479/1/5 and 480/1 mentioned in the application dated 25.2.2012 of the respondent are part of Khasra Nos. 421, 444, 445, 478, 479 and 480 mentioned in the prayer of OMP No. 360 of 2003. Thus it is clear that even as per the stand of respondent Khewat No. 325 and Khasra Nos. 421/1,444/2, 445/1, 478/1, 479/1/5 and 480/1 have been acquired by the Land Acquisition Collector on behalf of General Manager, Northern Railway. The said land besides other land is part of prayer in OMP No. 360 of 2003. 12. The learned counsel for the respondent has submitted that the compensation amount of respondent lying in deposit with the Land Acquisition Collector cannot be attached in view of Section 52A added in the Land Acquisition Act, 1894 by Himachal Pradesh Amendment, which is as follows: “52A. 12. The learned counsel for the respondent has submitted that the compensation amount of respondent lying in deposit with the Land Acquisition Collector cannot be attached in view of Section 52A added in the Land Acquisition Act, 1894 by Himachal Pradesh Amendment, which is as follows: “52A. Protection of compensation.- No compensation awarded or awardable under this Act,- (a) before it is actually paid to the person entitled to receive the same; or (b) before or after it is actually paid to the person entitled to receive the same in respect of any land which is not liable, under the law for the time being in force, to a attachment or sale in execution of a decree or order of any court shall be liable to seizure, attachment or sequestration by process of any court, at the instance of a creditor, for any demand against the person entitled to compensation, or in satisfaction of a decree or order of any court, and notwithstanding anything to the contrary in any law for the time being in force, neither the official assignee nor any receiver appointed under any law shall be entitled to proceed against or to have any claim on any such compensation.” ( w.e.f. 29.7.1986 vide Himachal Pradesh Act 17 of 1986, sec.4 ). The learned counsel for the respondent in support of his submission has relied Bank of Baroda vs. M/s Sharma Industries and others 1992 (2) Sim. L.C. 386. 13. In Bank of Baroda (supra) J.D.No.3 Ram Murti moved an application for release of an amount of ! 57,307/- which was ordered to be deposited in the fixed deposit with the decree holder bank. On 21 .9.1987 J.D.No.3 was directed not to receive any compensation from the Court of District Judge, Solan regarding land acquisition proceedings till further orders of the Court. The counsel appearing on behalf of J.D.No.3 made a statement in the Court that a sum of ! 57,322/- has become payable to J.D. No.3 towards his share in the amount of compensation, whereupon the said sum was sent for from the Court of Additional District Judge, Solan to the Registrar of the High Court. The J.D.No.3 projected the case that his amount cannot be attached nor it could be appropriated towards the liquidation of the decretal amount and it should be released in his favour. The J.D.No.3 projected the case that his amount cannot be attached nor it could be appropriated towards the liquidation of the decretal amount and it should be released in his favour. The Hon’ble Single Judge made general observation that it is well established that compensation awarded under the provisions of Land Acquisition Act is not attachable nor it could be unlawfully detained. The Hon’ble Single Judge after noticing conduct of J.D.No.3 in the execution petition, dismissed the application by observing that applicant herein had voluntarily thrown the said compensation amount into his assets liable to be attached and abandoned his lawful right to claim the same as his lawful property. In that case it was not considered to what type of property Section 52A added by the Himachal Pradesh Amendment Act is applicable. 14.In Punjab also Section 52A has been added by way of amendment in the Land Acquisition Act, 1894. The Section 52A in Punjab is similar to Section 52A in Himachal Pradesh. The Section 52A of Punjab was considered in Mukhtiara vs. Sardarni Virpal Kaur and others AIR 1968 Punjab & Haryana, 239 wherein it has been held as follows: I am not prepared to believe that the legislature could have intended that if a certain property is not exempt from attachment or sale in execution of a decree it should be open to its owner to obtain such exemption by having that property acquired under the provisions of the Land Acquisition Act and permit him to obtain the compensation. The object of exemption under Section 52-A of the Land Acquisition Act is merely to keep intact the protection which a judgment debtor enjoys under the ordinary law for exemption under Section 60 of the Civil Procedure Code from attachment or sale of the property. There appears to be a valid reason for it, if a judgment debtor is entitled to keep a property with him without danger of its losing it by way of attachment or sale, there is no reason why he should be deprived of that protection if that property is compulsorily acquired. In view of all these considerations, I have no hesitation in agreeing with the learned Senior Subordinate Judge that the compensation payable to the appellant in this case is not exempt from attachment.” 15. In view of all these considerations, I have no hesitation in agreeing with the learned Senior Subordinate Judge that the compensation payable to the appellant in this case is not exempt from attachment.” 15. The Section 60 of the Code of Civil Procedure provides property liable to attachment and sale in execution of decree. No doubt, under Section 60 of the Code, some properties are exempt from attachment and sale. It is not the case of the respondent that his land which was acquired for Railway was exempt from attachment and sale under Section 60 of the Code. Once the land of respondent was not exempt under Section 60 of the Code from attachment and sale, then the compensation lying in deposit before the Land Acquisition Collector on account of acquisition of land of respondent is not exempt from attachment under Section 52A added in the Land Acquisition Act by Himachal Pradesh Amendment. It is the case of the applicant that in case the amount of respondent lying in deposit before the Land Acquisition Collector is released to him then it will not be possible to recover the amount of decree if ultimately passed against the respondent. Prima- facie case, balance of convenience and irreparable loss are in favour of the applicant. The applicant has made out a case for attachment of the amount of respondent lying in deposit before the Land Acquisition Collector and restraining the respondent from withdrawing the said amount. 16.In view of above, the application is allowed. The orders dated 28.11.2003 and 11.3.2004 passed in OMP No. 360 of 2003 are modified, the amount of respondent lying in deposit before the Assistant Commissioner-cum-Land Acquisition Collector (Railway), Una is attached and the respondent is restrained from withdrawing the said amount from the Assistant Commissioner-cum-Land Acquisition Collector (Railway), U na. The Assistant Commissioner-cum-Land Acquisition Collector (Railway), Una is directed to immediately remit the share amount of the respondent lying in deposit before him alongwith uptodate interest accrued thereon to the Registrar General of this Court and on receipt of the amount, the Registrar General shall invest the said amount in fixed deposit in some Scheduled Bank. The release of the said amount shall abide by the decision in the suit. The release of the said amount shall abide by the decision in the suit. The civil suit file be sent to Civil Judge (Junior Division), Court No.2, Amb, District Una immediately, so as to reach before 30.4.2013 date fixed by that Court in the suit for recording evidence. No costs.