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2017 DIGILAW 794 (HP)

Sharma Sweet House Charna v. State Bank of India

2017-07-13

TARLOK SINGH CHAUHAN

body2017
Tarlok Singh Chauhan, J (Oral). The petitioners are the judgment debtors, who aggrieved by the warrant of attachment and sale of attached property issued by the learned Executing Court vide its order dated 30.3.2017 (hereinafter referred to as the ‘impugned order’) have invoked the jurisdiction of this Court by filing this petition under Article 227 of the Constitution of India with a prayer to set aside the aforesaid order. Certain undisputed facts may be noticed. 2. The respondent-decree holder filed a suit for recovery against the petitioners/judgment debtors of Rs.6,24,761.03 alongwith interest, which was decreed ex parte in his favour on 25.10.2010. The respondent-decree holder thereafter filed an Execution Petition wherein again the petitioners were proceeded ex parte and after ordering the attachment of the property, the learned Executing Court vide its order dated 30.3.2017 directed the sale of the attached property in the following schedule:- (i) Proclamation – 21.4.2017 (ii) Sale - 30.5.2017 (iii) Report - 12.6.2017 3. The judgment debtors have assailed the impugned order on the ground that they have not been afforded sufficient time to settle their accounts and it has further not taken into consideration by the learned Court below that the husband of the petitioner No. 1 had died during the pendency of the suit, leaving the family in penury circumstances as he was the only bread earner of the family, therefore, on sympathetic ground the petitioners were entitled to be granted time to make payment of the loan amount. I have heard learned counsel for the parties and have gone through the materials placed on record. 4. In D.N. Banerji v. P.R. Mukherjee, 1953 AIR (SC) 58, the Hon’ble Supreme Court held as under: “Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere.” 5. 4. In D.N. Banerji v. P.R. Mukherjee, 1953 AIR (SC) 58, the Hon’ble Supreme Court held as under: “Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere.” 5. In Waryam Singh and another v. Amarnath and another 1954 AIR (SC) 215, a Constitution Bench of the Hon’ble Supreme Court has examined the scope of Article 227 of the Constitution and observed as under:- “This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. V. Sukumar Mukherjee, 1951 AIR (Cal) 193 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.” 6. In Mohd. Yunus v. Mohd. Mustaquim and others, 1984 AIR (SC) 38, the Hon’ble Supreme Court held that the High Court has very limited scope under Article 227 of the Constitution and even errors of law cannot be corrected in exercise of power of judicial review while exercising such power. The powers can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. It was further held that High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of Tribunal etc. has resulted in grave injustice. 7. In Nibaran Chandra Bag v. Mahendra Nath Chughu 1963 AIR (SC) 1895, the Hon’ble Supreme Court held that interference under Article 227 of the Constitution, finding of facts recorded by Authority should have found to be perverse or patently erroneous and de hors factual and legal position on record. 8. In Rena Drego v. Lalchand Soni and others, 1998 (3) SCC 341 , the Hon’ble Supreme Court has categorically held that the power under Article 227 of the Constitution is of the judicial superintendence which cannot be used to up-set the conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could have ever reached them. 9. 9. Similar reiteration can be found in Chandra Bhushan v. Beni Prasad and others 1999 (1) SCC 70 ; Savitrabai Bhausaheb and others v. Raichand Dhanraj Lunja 1999 (2) SCC 171 ; and Savita Chemical (P) Ltd. V. Dyes and Chemical Workers Union and another, 1999 (2) SCC 143 . 10. In Union of India and others v. Himmat Singh Chahar, 1994 (4) SCC 521, wherein the Hon’ble Supreme Court held that power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter conclusion reached by Competent Statutory Authority merely on the ground of insufficiency of evidence. 11. In Ajaib Singh v. Sirhind Co-operative Marketing cum Processing Service Society Ltd., 1999 (6) SCC 82 , the Hon’ble Supreme Court held that there is no justification for High Court to substitute its view for the opinion of Authorities/Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. 12. In Mohan Amba Prasad Agnihotiri v. Bhaskar Balwant Aheer, 2000 AIR (SC) 931, the Hon’ble Supreme Court held that the jurisdiction of High Court under Article 227 of the Constitution is not appellate but supervisory. It cannot interfere with the finding of facts recorded by Courts below unless there is no evidence to support findings or findings are totally perverse. 13. In Union of India v. Rajendra Prabhu, 2001 (4) SCC 472 , the Hon’ble Supreme Court held that High Court in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate evidence nor it can substitute its subjective opinion in place of findings of Authorities below. 14. Similar reiteration can be found in State of Maharashtra v. Milind and others 2001 (1) SCC 4 ; Extrella Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 ’ and Omeph Mathai and others v. M Abdul Khader, (2002) 1 SCC 319 . 15. In Surya Dev Rai v. Ram Chander Rai and others, 2003 (52) ALL LR 707, the Hon’ble Supreme Court held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by Subordinate Courts. 15. In Surya Dev Rai v. Ram Chander Rai and others, 2003 (52) ALL LR 707, the Hon’ble Supreme Court held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by Subordinate Courts. It also held that when the Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, Court may step into to exercise its supervisory jurisdiction. However, it was also observed that a writ of certiorari or exercise of supervisory jurisdiction is not available to correct mere errors of fact or law unless error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or disregard of provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby. 16. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, 2010 (8) SCC 329 , the Hon’ble Supreme Court observed that powers of interference under Article 227 is to be kept to the minimum to ensure that wheel of justice does not come to a halt and fountain of justice remains pure and unpolluted in order to maintain public confidence in functioning of Tribunals and Courts subordinate to High Court. 17. Similar reiteration can be also found in Kokkanda B. Poondacha and others v. K.D. Ganapathi and another, 2011 AIR (SC) 1353, and Bandaru Satyanarayana v. Imandi Anasuya, 2011 (12) SCC 650. 18. In Abdul Razak (D) through Lrs. And others v. Mangesh Rajaram Wagle and others, 2010 (2) SCC 432 , the Hon’ble Supreme Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction. 19. In Commandant, 22nd Battalion, CRPF and others v. Surinder Kumar 2011 (10) SCC 244 , the Hon’ble Supreme Court reiterated that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Article 226 or 227. 20. The principles laid down in Surya Dev Rai and Shalini Shyam Shetty’s cases (supra) were thereafter reiterated in Sameer Suresh Gupta v. Rahul Kumar Agarwal, 2013 (9) SCC 374 . 21. 20. The principles laid down in Surya Dev Rai and Shalini Shyam Shetty’s cases (supra) were thereafter reiterated in Sameer Suresh Gupta v. Rahul Kumar Agarwal, 2013 (9) SCC 374 . 21. In Radhey Shyam and another v. Chabbi Nath and others, 2015 (3) Scale 88 , the Hon’ble Supreme Court reiterated that scope of Article 227 is different from Article 226 and the contrary view in Surya Dev Rai’s case (supra) was over-ruled. 22. From the aforesaid conspectuous of law, it can conveniently be held that the supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the Subordinate Courts within the bound of the jurisdiction. When a Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or jurisdiction though available is exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step into exercise its supervisory jurisdiction. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirement is satisfied:- (i) The error is manifest and apparent on the face of the proceedings such as when it is based on ignorance or utter disregard to the provisions of law, and to grave injustice or gross failure of justice has occasioned thereby. (ii) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscious of the High Court dictates which too act lest gross failure of justice or grave injustice has occasioned. 23. Judged in the light of aforesaid exposition of law, it would be noticed that apart from invoking the jurisdiction of this Court on sympathetic ground, the petitioners have no legal or factual grounds to stand upon in the instant case. The suit was filed on 1.4.2009 and decreed on 25.10.2010 for a sum of Rs.6,24,761.03/- inclusive of interest up to 8.3.2009 with pendente lite and future interest @ 11.25% per annum with monthly rests till liquidation of the amount. 24. This Court while issuing notices to the opposite parties on 30.5.2017 and stopping the sale of property, had passed the following order: “CMP No. 4056 of 2017 Notice in the aforesaid terms. 24. This Court while issuing notices to the opposite parties on 30.5.2017 and stopping the sale of property, had passed the following order: “CMP No. 4056 of 2017 Notice in the aforesaid terms. The judgment debtors/petitioners may make efforts with the decree holder bank for a one time settlement, with respect to the decreetal amount. The aforesaid efforts be made within one week. Thereafter, the decree holder bank shall make its decision. List after five weeks. In the meanwhile, the attached assets of the judgment debtors/petitioners, be not put to sale by public auction.” 25. Despite indulgence shown to the petitioners, they have not cared to deposit even a single paisa with the respondent-Bank ever since either passing of the decree by the learned trial Court or in compliance with the aforesaid order. 26. Notably at this stage, I may also notice that another concern of the petitioners M/s Sharma Wooden had also approached this Court by filing a petition under Article 227 of the Constitution, which was registered as CMPMO No. 241 of 2017 against the respondent herein was dismissed on 30.5.2017 by observing as under:- “This petition under Article 227 of the Constitution of India is directed against the order dated 30.3.2017 passed by the learned Executing Court, whereby warrant of sale has been issued against the properties of the petitioners which already stood attached. 2. It is borne out from the material placed on record that the petitioners had already suffered decree of Rs.5,49,301.34 inclusive of interest accrued up to 8th March, 2009 with pendent lite and future interest @11.25% per annum with monthly rests jointly and severally subject to the entire amount is liquidated. 3. On pointed query to the learned counsel for the petitioners, he did not dispute that the decree as passed on 9.3.2011 is still in force though he would contend that he has already taken steps for setting aside the same as he has proceeded ex parte. Even this argument cannot be accepted as the petitioners, who were defendants in the suit were duly represented by Mr. Ajay Sharma, Advocate and moreover, this in itself cannot be a ground to stay the execution of the decree, which as observed has been passed as far back on 9.3.2011. 4. That apart, petitioners have failed to even show their bonafide by depositing some amount in loan account before filing the instant petition. Ajay Sharma, Advocate and moreover, this in itself cannot be a ground to stay the execution of the decree, which as observed has been passed as far back on 9.3.2011. 4. That apart, petitioners have failed to even show their bonafide by depositing some amount in loan account before filing the instant petition. Once the property of the JD has been lawfully attached by a competent Court, then necessary consequences of sale thereof have to follow. 5. In view of the aforesaid discussion, there is no merit in this petition and the same is dismissed.” 27. There can be no dispute that the loans availed by the petitioners is public money and therefore, no exception can be taken against the action of the respondent in approaching the competent Court for the redressal of their grievance. 28. Having said so, I find no merit in this petition and the same is dismissed accordingly, leaving the parties to bear their own costs.