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2016 DIGILAW 197 (JK)

S. L. Telecom v. Jammu and Kashmir Bank Ltd.

2016-04-18

BANSI LAL BHAT

body2016
ORDER : Bansi Lal Bhat, J. 1. Petitioners are aggrieved of order dated 22-8-2015 passed by the learned Additional District Judge (Bank Cases), Jammu on an application under O. 38, Rule 5 read with O. 39, Rr. 1 and 2 of CPC filed in suit captioned Jammu and Kashmir Bank Ltd. v. M/s. S.L. Telecom and others, by virtue whereof the trial Court recorded its satisfaction about circumstances existing to pass an order of attachment of hypothecate and mortgaged properties. It directed to furnish security equal to the value of the suit of respondent (hereinafter referred as 'plaintiff-Bank') before attachment and till security is furnished the order of attachment shall not be given effect to. Petitioners (hereinafter referred to as 'defendants') have also been restrained from alienating transferring or creating any third party interest in respect of the properties mortgaged by the defendants with the plaintiff-Bank as security for repayment of loan obtained by defendant No. 1 from the plaintiff-Bank. 2. It is averred in the petition that defendant No.1 had availed Cash Credit Limit for her business from the plaintiff-Bank to the tune of Rs.3.50 crores. Defendants 1 to 6 stood as mortgage's. Documents were executed as security for the loan. Defendant No. 1 claims to have repaid the loan in part, but on account of suffering huge loss in her business she failed to repay the amount in full along with interest accrued thereon. Since defendant No. 1 failed to adhere to the schedule of repayment, plaintiff-Bank served notice of demand dated 17-12-2014 on the defendants. Defendant No. 1 claims to have filed OWP No. 18/2015 against the notice which was stayed in terms of order dated 3-1-2015. Subsequently, plaintiff Bank filed a suit for recovery against the defendants which is pending adjudication before learned Additional District Judge (Bank Cases), Jammu. The impugned order dated 22-8-2015 came to be passed in application under Order 38, Rule 5, CPC filed in the aforesaid suit. 3. The impugned order is assailed on the ground that the same suffers from non-application of mind and that the trial Court has failed to record its satisfaction that the defendants were really about to dispose of the mortgaged properties with the intention of frustrating the decree that may be passed in the suit and that there was no material to suggest that the defendant would dispose of the said property. 4. 4. Plaintiff-Bank has filed objections contesting the petition on the ground that defendant No. 1 had initially availed Cash Credit Facility of Rs.95.00 lacs in the year 2007. The cash credit facility was further enhanced to Rs.124.00 lacs in June, 2009 and then to Rs. 200.00 lacs in March, 2010 and thereafter to Rs.250.00 lacs in 2011. At the instance of defendant No. 1 cash credit facility was further enhanced to Rs.300.00 lacs and finally to Rs.350.00 lacs in August, 2012. Some of the defendants mortgaged their properties in favour of the Bank as security for repayment of loan amount. The documents pertaining to cash credit facility were executed by defendants from time to time voluntarily. Subsequently, defendants failed to adhere to the terms and conditions of cash credit facility and became wilful defaulters. They avoided to liquidate the balance outstanding after issuance of notice dated 17-12-2014. Plaintiff-Bank has availed ordinary remedy of filing suit for recovery of Rs.4,22,37,298.91/- against the defendants and also filed a composite application under Order 38, Rule 5 read with O. 39, Rr. 1 and 2 of CPC for the purposes of granting of interim relief. The discretionary order dated 22-8-2015 impugned in this petition was passed by the trial Court in exercise of jurisdiction vested in it. The impugned order is outcome of discretionary power vested in the Court and the same is subject to objections and modification. The trial Court recorded its satisfaction and also subjected its order of attachment to furnishing of security by the defendants. Attachment was to take effect only if defendants failed to furnish security for repayment of outstanding amount as mentioned in the suit. The impugned order is conditional and subject to modification and alteration after considering of objections upon merits. 5. Heard learned counsel for the parties. 6. Defendants have invoked supervisory jurisdiction of this Court under Section 104 of Constitution of J. & K. which corresponds to Article 227 of Constitution of India. 7. The Hon'ble Apex Court after analysing the case law on the subject thoroughly held in Radhey Shyam and Anr. v. Chhabi Nath and Ors., reported in AIR 2015 SC 3269 , that an order passed by a Civil Court is not amenable to the writ jurisdiction of High Court under Article 226 of Constitution of India. 7. The Hon'ble Apex Court after analysing the case law on the subject thoroughly held in Radhey Shyam and Anr. v. Chhabi Nath and Ors., reported in AIR 2015 SC 3269 , that an order passed by a Civil Court is not amenable to the writ jurisdiction of High Court under Article 226 of Constitution of India. In the instant case, petition is filed under Section 104 of Constitution of J. & K. corresponding to Article 227 of Constitution of India which vests supervisory jurisdiction in this Court. It is well settled that supervisory jurisdiction is exercised only to keep the trial Court within the bounds of law and to prevent failure of justice. Interference would be warranted only where the Civil Court fails to exercise jurisdiction vested in it, exercise jurisdiction not vested in it. or exceeds its jurisdiction. Such power cannot be exercised on the drop of a hat. It is only in exceptional cases that the extraordinary power would be exercised to prevent failure of justice. Where a statutory right to file in appeal has been provided, High Court cannot entertain petition under Article 227 of the Constitution of India. If remedy by way of appeal is barred, aggrieved party may file a revision and if such revision is also barred, only then recourse can be had to Article 227. This proposition of law has been reiterated in a recent judgment of the Hon'ble Apex Cortin case titled Jogendrasinhji Vijaysinghji v. State of Gujarat and Ors., reported in AIR 2015 SC 3623 . 8. So far as case in hand is concerned, it be seen that suit for recovery of money outstanding against defendants is pending adjudication before the Civil Court. The impugned order is composite order passed by the trial Court in application filed by plaintiff-Bank under Order 38, Rule 5 read with O. 39, Rr. 1 and 2 of CPC. Admittedly, plaintiff-Bank, seeking recovery of a huge amount exceeding Rs.4.00 crores against the defendants, sought attachment of hypothecated stocks and mortgaged properties offered as security by some of the defendants as mortgages. The trial Court, in its wisdom, after basing its satisfaction on the affidavit filed in support of the motion that the defendants/ mortgages during the pendency of the lis are likely to dispose of the mortgaged properties rendering the suit in fructuous proceeded to direct attachment of the property. The trial Court, in its wisdom, after basing its satisfaction on the affidavit filed in support of the motion that the defendants/ mortgages during the pendency of the lis are likely to dispose of the mortgaged properties rendering the suit in fructuous proceeded to direct attachment of the property. It, however, subjected the order to modification and alteration after consideration of objections upon merits. Not only that, it also subjected the order of attachment to furnishing of a security by defendants equal to the value of the suit of the plaintiff-Bank. Thus, no prejudice can be claimed by the defendants as they have been provided opportunity to show-cause against such attachment and the attachment order is a conditional order which will take effect only if the defendants failed to furnish security equal to the value of the suit of plaintiff-Bank. It is manifestly clear that the trial Court has not only applied its mind and recorded its satisfaction in regard to the requirement warranting passing of an attachment order but has also subjected it to the objections of defendants, besides rendering it conditional and operate-able only if the required security is not furnished. The order is not only informed of reasons but also justifiable. 9. Viewed thus, no case of interference is made out. Exercise of supervisory jurisdiction under Section 104 of Constitution of J. & K. is, accordingly, declined. 10. Petition is, accordingly, dismissed. Petition dismissed.