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2016 DIGILAW 1049 (RAJ)

Pavan Podar v. State of Rajasthan

2016-07-22

VEERENDR SINGH SIRADHANA

body2016
JUDGMENT : Veerendr Singh Siradhana, J. 1. Aggrieved of the notice issued under Section 4 of the Rajasthan Public Demands Recovery Act, 1952 (for short, 'the Act of 1952'), dated 12th March, 2003 and the order dated 10th September, 2007 for recovery decreetal amount along with interest @18% under the Act of 1952, the petitioners have prayed for the following reliefs: "(i) the order dated 10.9 2007 (Ex.8) passed by the respondent No. 2 and the notice dated 12.3.2003 (Ex.4) may be declared to be illegal and set aside; (ii) any other relief to which the petitioners are found entitled for may be granted to them; (iii) the writ petition be allowed with costs." 2. Briefly, the skeletal material facts necessary for appreciation of the controversy are that the State-respondents instituted a civil suit, which was decreed in their favour against one Shri Ganesh Narain Podar (since deceased) for an amount of Rs. 7,17,81,702,.30 (Rupees Seven Crores seventeen lacs eighty one thousand seven hundred two and paisa thirty only). On the death of judgment debtor, notices were issued to the petitioners as the successors of deceased. 3. Learned counsel for the petitioners, Mr. R.C. Joshi, reiterating the pleaded facts and grounds of the writ application asserted that Shri Ganesh Narain Podar died on 7th November, 2005 and the respondent-State the decree-holder, instituted execution proceedings before the District Judge, Jaipur City, Jaipur on 23rd April, 2003. The proceedings were pending until institution of the present writ application. According to learned counsel no notices have been received by the petitioners of the execution proceedings. Late Shri Ganesh Narain Podar was the Chairman of Jaipur Spinning and Weaving Mills, Jaipur and the decreetal amount is with reference to a guarantee extended by the State-respondents to Jaipur Spinning and weaving Mills. For the Mill was brought under liquidation, its entire assets and properties were taken over by the Official Liquidator. A Company Petition No. 10/1980, is still pending in the reference. 4. Furthermore, the Bombay High Court adjudged late Shri Ganesh Narain Podar as an insolvent and all the estates and assets of late Shri Ganesh Narain Podar were vested in the Official Assignee of the Bombay High Court. The petitioners have not inherited any immovable or movable property from late Shri Ganesh Narain Podar. 4. Furthermore, the Bombay High Court adjudged late Shri Ganesh Narain Podar as an insolvent and all the estates and assets of late Shri Ganesh Narain Podar were vested in the Official Assignee of the Bombay High Court. The petitioners have not inherited any immovable or movable property from late Shri Ganesh Narain Podar. The fact that late Shri Ganesh Narain Podar was declared insolvent was also brought to the notice of the District Judge, Jaipur City' Jaipur, on 8th November, 1989. 5. Learned counsel further urged that the process instituted against the petitioners for recovery of the decreetal amount under the Act of 1952 through the District Collector (Recovery), Jaipur, is illegal, arbitrary and without jurisdiction. Referring to the notice issued under Section 6 of the Act of 1952, dated 12th March, 2003, learned counsel would submit that decreetal amount, which is sought to be recovered under the Act of 1952, is the same decreetal amount that has been adjudicated upon in the civil proceedings as is reflected from the relevant column in the certificate of 'public demand' under Section 4 of the Act of 1952, detailing out the particulars of 'public demand' for which the certificate has been issued. 6. It is further contended that under Section 2 (5) of the Act of 1952 "public demand" means any arrear of money mentioned or referred to in the schedule to the Act of 1952 and includes any interest which may by law be chargeable thereon upto the date of signing of a certificate in respect thereof under Section 4 of the Act of 1952. Thus, the decree made by the civil court, on a civil suit, instituted by the State-respondents, cannot fall within the definition of "public demand." The petitioners are not within the ambit of the definition of 'defaulter' as defined under Section 2 (2) of the Act of 1952. 7. So also decree of a civil court, is not included in the Schedule appended to the Act of 1952, which contemplates recovery of public demands under or in pursuance of an agreement evidenced by a writing. In support of the submissions, reliance has been placed on the opinion of the Hon'ble Apex Court of the land in the case of Iqbal Naseer Usmani v. Central Bank of India & Others, 2006 (1) WLC (SC) Civil 436 : (2006) 2 SCC 241 . 8. In support of the submissions, reliance has been placed on the opinion of the Hon'ble Apex Court of the land in the case of Iqbal Naseer Usmani v. Central Bank of India & Others, 2006 (1) WLC (SC) Civil 436 : (2006) 2 SCC 241 . 8. In response to the notice of the writ application, the so State-respondents have filed their counter-affidavit raising preliminary objections while supporting the institution of process under the Act of 1952 and further pleading availability of alternative remedy to the petitioners by way of appeal under Section 23(A) of the Act of 1952. 9. Learned Senior Counsel, Mr. Rajendra Prasad, AAG, appearing for the State-respondents vehemently argued that the term "instrument" in the schedule appended to the Act of 1952, would include a decree as well for it was the determination as a consequences of deed of guarantee dated 2nd March, 1977, that was executed in favour of late Shri Ganesh Narain Podar, which was the subject matter of civil litigation before the court below resulting into a decree. 10. Learned counsel would further submit that the term "instrument" in the schedule has not been defined either under the Act of 1952 or under the Civil Procedure Code; however, the Hon'ble Apex Court of the land in a number of cases has considered its scope and amplitude and by those conclusions and "instrument" would also include a decree of civil court. Reliance has been placed on the opinion of the Hon'ble Supreme Court in the cases of Mohan Chowdhury v. The Chief Commissioner, Union Terriotory of Tripura, AIR 1964 SC 173 , Purshottam H. Judye and Others v. V.B. Potdar, AIR 1966 SC 856 ; Andhra Pradesh State Financial Corporation v. M/s. GAR Re-Rolling Mills and Another, AIR 1994 SC 2151 ; Hindustan Lever and Another v. State of Maharashtra and Another, 2004 (1) WLC (SC) Civil 144 : AIR 2004 SC 326 ; M/s. Transcore v. Union of India & Another, AIR 2007 SC 712 and Official Liquidator, U.P. and Uttarakhand v. Allahabad Bank and Others, AIR 2013 SC 1823 . 11. I have heard the learned counsel for the parties and with their assistance carefully perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 12. 11. I have heard the learned counsel for the parties and with their assistance carefully perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 12. Indisputably, the State-respondents have instituted the process for recovery of the decreetal amount, adjudicated upon by the Civil Court as is evident from a glance of certificate of public demand issued under Section 4 of the Act of 1952. The plea of alternative remedy raised by the State-respondents has been aptly countered by the counsel for the petitioners relying upon the opinion of the Hon'ble Apex Court of the land in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1 , wherein the Hon'ble Supreme Court held that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the constitution. Writs may be issued for enforcement of any of the Fundamental Rights contained in Part-III of the Constitution and also for "any other purpose." Their Lordships further held that exercise of powers to issue writs under Article 226 of the Constitution would depend upon the facts and circumstances of the case and mere availability of alternative remedy cannot operate as a bar in at least three contingencies; namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 13. In the instant case at hand from the facts and materials available on record, it is not in dispute that the State-respondents instituted a civil suit successfully and a decree was made in their favour. It is also not in dispute that the State-respondents have instituted execution proceedings for recovery of the decreetal amount. In addition to the institution of execution proceedings for the decree made by the civil court proceedings under the act of 1952, have also been initiated which have been questioned by the petitioners before this Court in the instant writ application being without jurisdiction. In addition to the institution of execution proceedings for the decree made by the civil court proceedings under the act of 1952, have also been initiated which have been questioned by the petitioners before this Court in the instant writ application being without jurisdiction. At this juncture, it will be relevant to consider the definition of "public demand" which has been defined under Section 2 of the Act of 1952 which reads thus: "2(5). "public demand" means any arrear of money mentioned or referred to in the Schedule to this Act and includes any interest which may by law be chargeable thereon upto the date of the signing of a certificate in respect thereof under Section 4." 14. Schedule appended to the Act of 1952 [Section 2(5)] contemplates that any money payable to the State Government or to a department or an officer of Government under or in pursuance of written instrument may be recovered by institution of the proceedings under the Act of 1952. The interpretations and explanations with reference to the term "instrument" from the opinions referred to and relied upon on behalf of the respondents, it is evident that in none of the judgments, a decree of civil court was the issue involved in those cases. Therefore, the opinions referred to and relied upon are totally different and distinguishable on facts, and therefore, are of no help to the State-respondents. 15. The issue of proceedings under a Special Act, in somewhat similar circumstances, fell for consideration before the Hon'ble Supreme Court in the case of Iqbal Naseer Usmani (supra). The Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 (for short, the Act of 1972), provided for speedy recovery of certain classes of dues payable to the State Government or to the Uttar Pradesh Financial Corporation or any other Corporation notified by the State Government. In the case of Iqbal Naseer Usmani (supra), the respondent/Central Bank of India instituted a regular civil suit for recovery of the unpaid amount of loan together with accumulated interest thereon and a decree was made on 28th November, 1995, which was subjected to an appeal in Forma Pauperis with an application for being declared as a pauper by Iqbal Naseer Usmani. The first respondent (Central Bank of India) instead of executing the decree obtained against Iqbal Naseer Usmani, approached the Tehsildar, Gonda, for issuance of a certificate of recovery under the provisions of the Act of 1972. The Hon'ble Supreme Court allowing the appeal held thus: "5. At the preamble to the Act suggests, it is an Act to provide, inter-alia for: "the speedy recovery of certain classes of dues payable to the State Government or to the Uttar Pradesh financial Corporation or, any other corporation notified by the State Government in that behalf or to any nationalised or other Scheduled Bank or to a Government Company..... 6. There is no doubt that the first respondent is a banking company within the meaning of Section 2 (f) of the Act. Section 3(b) of the Act provides that where any person is party "to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of or relating to hire purchase of goods sold to him, by a banking company or a Government Company, as the case may be, under a State-sponsored Scheme" and such person makes any default in the repayment of the loan or advance or any instalment thereof, on a certificate as to default along with a request from the concerned company to the Collector, the Collector shall proceed to recover the amount stated therein as arrears of land revenue, while there is no doubt that the appellant had obtained a loan from the first respondent-banking company and defaulted in repayment thereof there is no evidence to suggest that the loan was relating to hire-purchase of goods sold to him under a "State-Sponsored Scheme." The learned Counsel for the respondent frankly conceded that the loan was not under any such "State-sponsored Scheme." In our view, the provisions of the Act are not intended to supplant the machinery for execution of all decrees under the provisions of the Code of Civil Procedure. They can only be utilised for recovery of sums due in the special cases enumerated in Section 3(1) of the Act. 7. Upon a perusal of the record, and after hearing learned counsel, we are not satisfied that the case of the appellant falls within the parameters of Section 3 of the Act. They can only be utilised for recovery of sums due in the special cases enumerated in Section 3(1) of the Act. 7. Upon a perusal of the record, and after hearing learned counsel, we are not satisfied that the case of the appellant falls within the parameters of Section 3 of the Act. Consequently, the revenue officers have neither the authority to issue any certificate for recovery, nor the power to take any steps for recovery of the decretal amount. The High Court seems to have been impressed by the fact that the money was public money, and that in order to encourage development in the country, banks are providing loan facilities to persons who are willing to purchase vehicles and further that if such a loan is treated as a commercial loan, it would be difficult for the Bank to recover the same by filing a civil suit, which takes years and years to decide. According to the High Court "the money of the Bank and financial institutions is public money, which should be in circulation, otherwise the Bank and depositors will suffer." We are afraid that while this may be very good sentiment, it cannot apply in the face of Section 3 of the Act for the reason that Section 3 does not envisage the provisions of the Act being utilised for recovery of every loan taken. Section 3(1)(b) permits this to be done only in respect of loans taken under a "State-sponsored scheme" which expression has been defined in Section 2(g) of the Act. Since it is admitted that the loan taken by the appellant was not under or in relation to a "State-sponsored Scheme" within the meaning of Section 2(g), whatever else it may be, it would not be recoverable by recourse to the machinery under Section 3 of the Act." 16. From the facts and materials available on record, in the instant case, it is evident that the State respondents too obtained a decree against Ganesh Narain Podar (deceased) and execution proceedings were also instituted which were pending and process was instituted for recovery of the decreetal amount under the Act of 1952. 17. From the facts and materials available on record, in the instant case, it is evident that the State respondents too obtained a decree against Ganesh Narain Podar (deceased) and execution proceedings were also instituted which were pending and process was instituted for recovery of the decreetal amount under the Act of 1952. 17. Repelling somewhat similar contentions as raised on behalf of the State-respondents, in the instant case at hand, with reference to the recovery of money of the Bank and financial institution being public money; the Hon'ble Supreme Court observed that those may be very good sentiments, but cannot apply in the face of the statutory provisions as envisaged under the Act of 1972. The law declared by the Hon'ble Apex Court of the land in the case of Iqbal Naseer Usmani (supra) is applicable with full force to the case at hand. 18. From the notice to defaulter issued under Section 6 of the Act of 1952 and the impugned order dated 10th September, 2007, it is evident that public demand' for which the certificate has been issued is a 'decree' passed by the District Judge, Jaipur, in the civil suit instituted by the State-respondents. Under the Civil Procedure Code (C.P.C.) a decree passed by the Civil Court can only be executed under Section 38 read with Order 21 of C.P.C. which reads thus: "38. Court by which decree may be executed-A decree may be executed either by the court which passed it or by the Court to which it is sent for execution. Order 21 Mode of paying money under decree-(1) All money, payable under a decree shall be paid as follows, namely:- (a) By deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; (b) Out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; (c) Otherwise, as the Court which made the decree, directs... Order 21, Rule 10 C.P.C. Application for execution-Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof." 19. From the materials available on record, it is evident that the Collector (Recovery), Jaipur, issued the notice and the recovery certificate for recovery of the decreetal amount. In the singular facts of the case at hand and in the face of contemplation under Section 38 read with Order 21 C.P.C. the Collector (Recovery), Jaipur, had no jurisdiction to enforce recovery under the Act of 1952. A decree made by a Civil Court is to be executed in accordance with the provisions contained under the CPC. Moreover, there is no contemplation of enforcement of a decree made by the Civil Court under the Act of 1952. 20. For the reasons and discussions herein-above as well as in view of law declared by the Hon'ble Supreme Court in the case of Iqbal Naseer Usmani (Supra), the writ application succeeds and is hereby allowed. 21. The impugned certificate 10.9.2007 (Ex.8) passed by the respondent No.2 and the notice dated 12.3.2003 (Ex.4), are hereby quashed and set aside. 22. However, the State-respondents would be at liberty to recover the money due under the decree in any of the manner, in accordance with law. 23. No costs. Certificate of Recovery Quashed.