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2017 DIGILAW 131 (GUJ)

Manjulaben Maheshchandra Patel v. Mohan Dye Chem

2017-01-19

RAJESH H.SHUKLA

body2017
JUDGMENT Rajesh H. Shukla, J. 1. The present First Appeal is filed by the appellant-purchaser being aggrieved with the impugned judgment and order in Summary Suit No. 697/2002 read with Special Darkhast No. 135/2003 dated 2.12.2011 passed by the Add. Sr. Civil Judge, Vadodara, dismissing the Application, Exh. 173. 2. Before adverting to the merits of the matter, it is required to be stated at the outset a few facts reflecting the conduct of respondent No. 1, proprietor of Mohan Dye-Chem, Shri KK Aggarwal, who appears as party-in-person. On the last occasion when the matter was heard it was agreed and accepted by respondent No. 1 Shri Aggarwal that an amount of Rs. 1,89,000/- which is claimed by him over and above the amount of Rs. 3,00,000/- may be paid towards satisfaction of his claim. However, Shri Aggarwal, who appears as party-in-person, had a second thought and requested for time and therefore the matter was adjourned to 16.12.2016 when it was heard finally on merits. Shri Aggarwal on 16.12.2016 submitted that he is not willing to accept the amount and the matter may be decided on merits and the appeal filed by the appellant may be dismissed. In fact, he has some quarrel with regard to the cost that some cost should be given and requested for time to re-think and thereafter when the matter was kept on 16.12.2016 he stated that it may be decided on merits and the appeal of the appellant may be dismissed. It is in this background the appeal has been heard on merits. 3. The background of facts, as stated by learned advocate Shri Dipen Shah for the appellant with the papers and with synopsis of the dates clearly suggest that respondent No. 1 as the proprietor of Mohan Dye-chem preferred the summary suit against respondent No. 2 Nit Hari Industries for recovery of the amount. However, as the property in question was mortgaged with Bank of Baroda, the proceedings were initiated by the bank before the Debt Recovery Tribunal. The attachment was made by DRT by order dated 1.11.2006 and the decision in the civil suit was given on 20.12.2006 (13.1.2007). Learned advocate Shri Shah therefore submitted that an application was made by the present appellant pending the proceedings before the DRT and Bank of Baroda had in exercise of its powers permitted purchase of the unit of the original borrower. Learned advocate Shri Shah therefore submitted that an application was made by the present appellant pending the proceedings before the DRT and Bank of Baroda had in exercise of its powers permitted purchase of the unit of the original borrower. The payment has been made by cheque for satisfaction of the liability of the bank and the registered sale deed has been executed by the original borrower, respondent No. 2, and the appellant. However, when it came to the notice of the appellant, the appellant made an application for release of attachment before the Civil Court by making an application, exh. 173, which came to be rejected and therefore the present First Appeal has been filed. 4. Learned advocate Shri Shah pointedly referred to the provisions of O.21 R. 58(4) and submitted that if the claim is satisfied then it may not be necessary to decide on satisfaction of the claim. He submitted that he would have stepped in the shoes of the original borrower and pursuant to the transaction in the proceedings before the DRT in the summary suit filed by respondent No. 1 Shri Aggarwal as the proprietor of Mohan Dye-chem against respondent No. 2 Nit Hari Industries he is ready and willing to satisfy the claim. It is in this background he submitted that earlier before the Court of Justice Brahmbhatt in this very proceedings of First Appeal No. 534 of 2012, the matter was about to be settled as reflected from the order of this High Court (Coram: SR Brahmbhatt, J.) dated 6.8.2014. Thereafter, it has been placed before this court and during the course of hearing as it is stated on affidavit by the appellant for payment of the dues of Rs. 3,00,000/- which has been deposited and further amount of Rs. 1,89,000/- to the satisfaction of the claim made by Shri Aggarwal he had initially agreed and accepted. However, Shri Aggarwal on second thought changed his mind and requested the court for time to think over the matter. Therefore, it has been kept on 16.12.2016 and then he has decided to contest saying that it may be decided on merits. Learned advocate Shri Shah therefore submitted that the moot question is whether the party-in-person can raise any objection qua the present appeal when his claim is satisfied. 5. Therefore, it has been kept on 16.12.2016 and then he has decided to contest saying that it may be decided on merits. Learned advocate Shri Shah therefore submitted that the moot question is whether the party-in-person can raise any objection qua the present appeal when his claim is satisfied. 5. The order of attachment by the DRT was passed in earlier point of time and after this when he purchased the property he would step in the shoes of the original borrower. Therefore, when an application is made by the appellant for removal of the attachment vide application, exh.173, the court has failed to appreciate this aspect and therefore the present appeal may be allowed. He pointedly referred to O.21 R 58(4) r/w Rule 55 and submitted that the present appeal may be allowed. 6. Learned advocate Shri Shah submitted that Civil Application No. 2950 of 2012 made by the proposed third party to be impleaded as a party on the ground that he has given his bid is also without any substance as the court below itself has recalled the order for sale of the property and the proclamation when it was brought to the notice of the court about the factual background. He therefore submitted that no further steps would be taken and there is no question of any bid given by the third party for purchase of the said property. Again, he submitted that in any case merely because the bid is given, it would not crystallize or create any right in favour of the third party and therefore the present appeal may be allowed. 7. Learned advocate Shri Pillai, however, referred to the papers and submitted that the appeal should be dismissed as he has an interest for which he has made an application to be impleaded as a party. He submitted that the appellant has an alternative remedy and he also referred to the provisions of O.21 R.55 & 58 and submitted that as the appellant is an obstructionist and not the judgment debtor this provision would not be applicable. He emphasised that the provisions of O.21 R. 55 would apply only to "judgment debtor and not obstructionist". He submitted that the appellant has an alternative remedy and he also referred to the provisions of O.21 R.55 & 58 and submitted that as the appellant is an obstructionist and not the judgment debtor this provision would not be applicable. He emphasised that the provisions of O.21 R. 55 would apply only to "judgment debtor and not obstructionist". He also therefore submitted that the present appeal may be dismissed and the matter may be decided in the execution proceedings afresh and the present appeal may not be entertained challenging the impugned order passed in the application filed by the appellant as obstructionist as the present applicant has also interest in the property which is to be put to auction sale by the Civil Court. 8. The party-in-person Shri Aggarwal also referred to the papers at length and he also referred to the background with details and submitted that the appeal should be dismissed with cost. He referred to the background and submitted that the attachment order was passed by the Civil Court earlier in point of time and therefore any transaction or order by the DRT is without any consequence and the appellant has misled the court. He has submitted that DRT could not have passed the order. He referred to the appeal memo and submitted that the order of attachment was passed by the Civil Court and therefore the further order regarding execution would prevail and the purchase or the so-called transaction by the applicant is not valid. He also submitted that the bank had fixed the upset price of Rs. 5,00,000/- and it was given and it raises doubt and therefore he submitted that the appeal may be dismissed with cost and the order passed below Exh. 173 is just and proper and the execution proceedings may proceed where the appellant can have his say before the Civil Court. 9. In view of these rival submissions as recorded hereinabove, the moot question is whether the first appeal deserves consideration in light of the provisions of O.21 R. 55 relied upon by learned advocate Shri Shah for the appellant. 10. As recorded hereinabove, respondent No. 1 party-in-person Shri Aggarwal has changed his mind twice after having shown his willingness to accept the amount claimed by him, that is, Rs. 1,89,000/- which he has claimed towards compensation over and above Rs. 10. As recorded hereinabove, respondent No. 1 party-in-person Shri Aggarwal has changed his mind twice after having shown his willingness to accept the amount claimed by him, that is, Rs. 1,89,000/- which he has claimed towards compensation over and above Rs. 3,00,000/- which is lying deposited with the trial court. Therefore, the submission made by learned advocate Shri Shah relying upon the provisions of O.21 R.55 is required to be considered. Order 21 Rule 55 to 58 refer to the satisfaction of a decree. The provision refers to the judgment debtor and the appellant is not the judgment debtor, but as discussed hereinabove, he would step in the shoes of the judgment debtor having purchased the property of the judgment debtor in a proceeding before the DRT. Therefore, the moot question which has been debated is whether the appellant could have purchased the property of the debtor respondent No. 2 company as a part of settlement outside the court. The original borrower had arranged with the bank for payment realising his property and the appellant herein as purchaser has made payment to the bank directly towards discharge of the debts of the original borrower. It is not in dispute that registered sale deed is also executed. 11. The proceedings before the Civil Court where the order of attachment is said to have been made which required the appellant herein to make necessary application for modification or vacation of that order of attachment leading to the order passed below exh. 173. Though this order has been passed, the appellant would step into the shoes of the original borrower and therefore when respondent No. 1 original plaintiff party-in-person Shri Aggarwal in Summary Suit No. 697/2002 before the Civil Court may have got the property attached towards the claim for his dues, the fact remains that it has been transferred by registered sale deed in favour of the appellant herein. As there was an attachment, the appellant had made necessary application for modification of the order. Therefore, even at that stage the appellant could have offered to make the payment towards satisfaction of the dues of respondent No. 1 the party in person Shri Agarwal. However, as the things are it has not been done in the same manner would not make any change in the position for the purpose of the present proceedings. Therefore, even at that stage the appellant could have offered to make the payment towards satisfaction of the dues of respondent No. 1 the party in person Shri Agarwal. However, as the things are it has not been done in the same manner would not make any change in the position for the purpose of the present proceedings. In other words, if the full amount of the claim made by the original plaintiff respondent No. 1 Shri Agarwal is satisfied, he should not have any grievance or cause of action. 12. Therefore, since the appeal is a continuation of the original suit or proceedings the same analogy would be applicable that the appellant has shown his willingness to fulfill the obligation by making payment of dues of respondent No. 1, there may not be any cause for any grievance. At the cost of repetition, as stated above, when the appellant has shown willingness to make payment of Rs. 1,89,000/- as claimed over and above Rs. 3,00,000/- deposited with the trial court, there is no justification for any grievance by respondent No. 1 party-in-person Shri Aggarwal. As recorded hereinabove, it is required to be stated at the cost of repetition that he is having second thought every time when the court is passing the order, though he is getting the amount towards his claim. 13. The submission made by learned advocate Shri Pillai that the provisions of O. 21 R. 55 & 58 would be applicable qua the judgment debtor and not to the third party would appear to be misconceived as the appellant has stepped in the shoes of the judgment debtor. Moreover, the application made by the applicant in Civil Application No. 2950 of 2012, client of learned advocate Shri Pillai, has no locus standi inasmuch as he is not even joined as a party in the present proceedings. He is not even a party in the original suit. The entire objection which he is raising is only on the basis that he has given a bid for the sale of the property in a pending proceedings before the Civil Court. However, before the auction sale of the property could take place pursuant to the order of the Civil Court, the Civil Court has recalled the order as it is evident from the order dated 20.12.2006. However, before the auction sale of the property could take place pursuant to the order of the Civil Court, the Civil Court has recalled the order as it is evident from the order dated 20.12.2006. Therefore, no further steps have been taken after that and no proceedings of the auction sale has taken place and therefore the third party cannot have any say in the matter. Therefore, at that stage, when the bid is given by the third party like the applicant in Civil Application No. 2950 of 2012 would not create any right, title, interest in his favour merely because he has offered a bid. It is well-accepted that by offer of a bid the rights are not crystallized and it is always subject to further procedure and it is only when the court confirms the auction sale by an order accepting the bid of the highest bidder and when the certificate is issued then only the third party who claims to have purchased the property in auction sale can make any claim with regard to the property. Therefore, in light of the order passed by the Civil Court itself when no further steps have been taken for the auction sale, he cannot claim any right, title, interest qua the property in question. 14. It is in this background Civil Application No. 2950 of 2012 made by the third party cannot be entertained and the present appeal filed by the appellant deserves to be allowed subject to the aforesaid clarification that the impugned judgment and order in Summary Suit No. 697/2002 read with Special Darkhast No. 135/2003 dated 2.12.2011 is hereby quashed and set aside on a condition and clarification that respondent No. 1 party-in-person Shri Aggarwal would be at liberty to withdraw the amount of Rs. 3,00,000/- lying in deposit with the trial court on usual terms after due verification over and above the amount of Rs. 1,89,000/- which the appellant is directed to deposit with the trial court within a period of 15 days by bankers draft drawn in favour of Registrar of the Civil Court which may be disbursed to Shri KK Aggarwal on usual terms. 15. The present appeal accordingly stands allowed to the aforesaid extent. 16. Civil Application No. 2950 of 2012 in First Appeal No. 534 of 2012 stands dismissed. 17. 15. The present appeal accordingly stands allowed to the aforesaid extent. 16. Civil Application No. 2950 of 2012 in First Appeal No. 534 of 2012 stands dismissed. 17. Civil Application No. 9975 of 2014 filed by the applicant-original appellant stands allowed to the aforesaid extent..