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Allahabad High Court · body

2017 DIGILAW 2446 (ALL)

Sam Higginbottom Institute Of A, T & S v. A. C. J. , S. D. Room No. 14, Allahabad

2017-10-27

ASHWANI KUMAR MISHRA

body2017
JUDGMENT : 1. A suit for recovery has been instituted by respondent no.2, in which an order was passed permitting unconditional leave to contest the suit during trial. This order was challenged by respondent no.2 before this Court by filing Revision No.380 of 2013, which was allowed in part on 23rd September, 2014 in following terms:- "38. In view of the above discussions, the impugned order dated 25.07.2013 passed by the Additional Civil Judge (Senior Division) Court No. 14, Allahabad, unconditionally allowing the Application 18-C of the defendant/respondent to leave to defend the Original Suit No. 1014 of 2012 under Order XXXVII, Rule 3(5) of Code of Civil Procedure filed by the plaintiff revisionist requires modification. It would be in fitness of the things to direct the defendant/respondent to deposit the substantial amount which was admitted by it to be due as already discussed in detail herein above and for the balance amount the defendant respondent be further directed to give security in terms of Rule 3(6) Order 37 CPC. 39. Thus keeping in view the provisions of Order 37 Rule 3(5)(6) of the Code of Civil Procedure, leave to defend the suit in respect of the claim of the plaintiff/revisionist is subject to the condition that the defendant/respondent will deposit 50% of the total amount in cash as claimed by the revisionist in the suit and furnish adequate security for the remaining half to the satisfaction of the Court below within six weeks from today. 40. With this observation, the present revision stands partly allowed. No order as to costs." 2. Being aggrieved by this order, the defendant petitioner approached the Apex Court by way of Special Leave Petition No.32607 of 2014, which was rejected by the Apex Court, vide following orders passed on 15th December, 2014:- "Upon hearing the counsel the Court made the following order- Heard learned counsel for the petitioner and perused the relevant material. We do not find any legal and valid ground for interference. The Special Leave Petition is dismissed. However, the time fixed by the High Court for payment of 50% of the total amount by cash and the remaining half by way of security is extended by another two weeks from today." 3. We do not find any legal and valid ground for interference. The Special Leave Petition is dismissed. However, the time fixed by the High Court for payment of 50% of the total amount by cash and the remaining half by way of security is extended by another two weeks from today." 3. It appears that instead of depositing 50% amount as cash in terms of the direction issued by this Court on 23.9.2014 in revision, the petitioner moved an application before the court below stating that instead of deposit of amount in cash, the petitioner be permitted to deposit Fixed Deposit Receipts, and the same be treated as valid substitute of cash. This application has been rejected, vide order dated 1.1.2015, which is under challenge in this petition. The order of the trial court clearly records that the petitioner has not complied with the directions issued by the revisional court on 23.9.2014, inasmuch as the 50% amount, which was required to have been deposited, has not been deposited so far, and that security for the balance amount was also not furnished to the satisfaction of the court concerned. Prayer made in that regard by the defendant petitioner before the court below has been rejected. 4. Sri J. Nagar, learned Senior Counsel assisted by Sri Pratik J. Nagar appearing for the petitioner submits that in view of law declared by Apex Court in Anumati Vs. Punjab National Bank, reported in (2004) 8 SCC 498 , the fixed deposit receipt is liable to be treated as a good substitute of cash, and therefore, the court below was not justified in rejecting the application. Reliance is also placed upon a judgment of the learned Single Judge of Madhya Pradesh High Court in Devendra Kumar Jain Vs. G.N. Goya, reported in AIR 2006 MP 25 , stating that there is no requirement of cash security for the purposes of grant of leave in terms of Rule 3(6) of Order 37 of the Code of Civil Procedure. 5. G.N. Goya, reported in AIR 2006 MP 25 , stating that there is no requirement of cash security for the purposes of grant of leave in terms of Rule 3(6) of Order 37 of the Code of Civil Procedure. 5. The contention aforesaid is opposed by Sri Rajesh Kumar Singh appearing for the respondents, who contends that once a specific direction has been issued by this Court in revision to deposit 50% of the amount by way of cash and for furnishing security in respect of the remaining amount, which has been affirmed with dismissal of special leave petition, it was not open for the court below to have modified the order in any manner. In such circumstances, it is contended that there is no failure of justice nor any error of jurisdiction appearing on record, so as to warrant any interference under Article 227 of the Constitution of India. 6. Facts, which arise for consideration in this matter are not in issue. The order passed by the revisional court has also been extracted above. The order is clear, inasmuch as the defendant petitioner has been specifically directed to deposit 50% of the amount by way of cash and the remaining in the form of security to the satisfaction of court. The judgment of Madhya Pradesh High Court, relied upon by the petitioner, reported in AIR 2006 MP 25 , would not be of any avail to the petitioner, inasmuch as by the order of the revisional court determining the terms for grant of leave to contest the suit has already attained finality, and therefore, any modification in the order based upon interpretation of Order 37 Rule 2 would amount to modifying the order already passed in the revision, which would be impermissible. In the scenario occurring for consideration in this case, the judgment of Madhya Pradesh High Court would, therefore, have no applicability. So far as judgment of the Apex Court in Anumati (supra) is concerned, the facts occurring therein were entirely distinct, as would be clear from paras 18 to 20 of the judgment of the Apex Court, which reads as under:- "18. We have our doubts regarding the validity of the order of the Trial Court allowing the Banks "information" application. But it is unnecessary to pronounce on it as it does not bind the appellant as was correctly held by the Revisional Court. We have our doubts regarding the validity of the order of the Trial Court allowing the Banks "information" application. But it is unnecessary to pronounce on it as it does not bind the appellant as was correctly held by the Revisional Court. Nor does anything turn on the supposedly shifting stances taken by the appellant in the two legal notices as there is no dispute that there was in fact a fixed deposit. 19. The State and National Commission both erred in proceeding on the basis that the Civil Court's decision was that the FDR had in fact been pledged by Mam Chand to the bank. We have already quoted the observation of the Revisional Court earlier. In fact, the Revisional Court also held that the decision of the trial Court did not in any fashion bind the appellant. There is no independent finding by any of the fora that the pledge had indeed been created of the fixed deposit receipt by Mam Chand as claimed by the bank. 20. In the circumstances, the Bank had no right to refuse payment of the amount deposited to the appellant. The refusal as disclosed to this Court, was contrary to banking norms. We are therefore of the view that the District Forum was correct in accepting, and the State Commission and the National Commission erred in rejecting, the appellant's complaint. The appeal is accordingly allowed and the decision of the State Commission and the National Commission are set aside and the order of the District Forum is confirmed with costs." 7. This Court finds that once specific terms for grant of leave have been settled by this Court in revision, and a challenge to it has failed, this Court would not be justified in modifying its terms in exercise of jurisdiction under Section 227 of the Constitution of India. There is neither any error of jurisdiction in the order nor any failure of justice, so as to warrant any interference. It is unfortunate that the proceedings of suit have remained stayed, on account of interim order in this matter for considerably long. There is neither any error of jurisdiction in the order nor any failure of justice, so as to warrant any interference. It is unfortunate that the proceedings of suit have remained stayed, on account of interim order in this matter for considerably long. It would, therefore, be appropriate to observe that the court concerned shall proceed with all expedition, particularly considering that matter in issue is a money suit, and conclude the proceedings by fixing weekly dates in the matter, without granting any unnecessary adjournment to either of the parties, except for exceptional circumstances or else, upon imposition of cost, which would not be less than Rs.5,000/- for a day. 8. Subject to the directions, aforesaid, this petition is consigned to records.