Research › Search › Judgment

Uttarakhand High Court · body

2019 DIGILAW 285 (UTT)

ICICI BANK v. PEACOCK MEDIA LIMITED

2019-04-12

LOK PAL SINGH

body2019
JUDGMENT Hon'ble Lok Pal Singh, J. By means of present writ petition, petitioner has sought the following reliefs: i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 28.08.2017 passed by Addl. Civil Judge III (S.D.) Dehradun while allowing the application preferred by the petitioner before the trial court under Order 1 Rule 10 CPC. ii) Issue an appropriate writ, order or direction to the court of learned Addl. Civil Judge III (S.D.) to allow the application dated 22.8.2014 filed by the petitioner under Order 1 Rule 10 of C.P.C. 2. Brief facts of the care are that plaintiff respondent no.2 herein filed a suit seeking a decree for recovery of ‘49,03,000/- against the defendant-respondent no.1 alongwith pendentilite and future interest at the rate of 18% per annum. Plaintiff further sought a decree of permanent prohibitory injunction restraining the defendants from interfering in peaceful possession and enjoyment over the suit property. Further, prayer was made to declare the sale deeds dated 02.07.2010, executed by respondent no.2 in favour of respondent no.1, as null and void. During the pendency of suit, petitioner moved an application under Order 1 Rule 10 r/w Sec. 151 of C.P.C. being paper no.39A/1 stating therein that the respondent no.1 purchased the property from the plaintiff respondent no.2 through registered sale deeds dated 2.7.2010 and simultaneously mortgaged the purchased property with the applicant bank. The defendant no.1 soon thereafter started to default on repayment of loan as a result proceedings under the SARFAESI Act were initiated against him for realization of its dues and symbolic possession was also taken on the spot. Applicant also affixed notice of taking possession on the disputed premises (mortgaged property). Plaintiff-respondent no.2 challenged the said proceedings before the Debt Recovery Tribunal, Lucknow by way of SA No.466 of 2013. Applicant also affixed notice of taking possession on the disputed premises (mortgaged property). Plaintiff-respondent no.2 challenged the said proceedings before the Debt Recovery Tribunal, Lucknow by way of SA No.466 of 2013. Against the application moved by the applicant-petitioner under Order 1 Rule 10 C.P.C., plaintiff-respondent no.2 filed his objections stating therein that the petitioner-applicant is not a mortgagee; suit property is not mortgaged with the bank; the plaintiff is the sole and exclusive owner in possession of the entire property of suit and his name continues to be duly recorded in the revenue records and has never been deleted; the bank has not taken symbolic or physical possession; and, that the presence of the applicant bank is not at all necessary for effectively and completely deciding and adjudicating upon and settling the question involved in the present case. The trial court, by impugned order dated 28.08.2017, dismissed the application on the ground that third party is not necessary and proper party to decide the issues involved in the case and that the application filed by the third party is not maintainable. 3. Learned Senior Counsel appearing for the plaintiff-respondent no.2 would submit that although he has filed a detailed counter affidavit in the writ petition but the writ petition is not maintainable inasmuch as the petitioner has an efficacious statutory remedy of revision under Section 115 of C.P.C. 4. Per contra, learned counsel for the petitioner would submit that the suit of the plaintiff itself is not maintainable as the proceedings have been initiated under the SARFAESI Act. He would invite attention of this Court to a judgment of Hon'ble Apex Court in the case of M/s Sree Anandhakumar Mills Ltd. vs M/s Indian Overseas Bank and Ors., Civil Appeal No(s).7214-7216 of 2012, decided on 03.05.2018, and would refer to following paragraphs: “4. The matter need not engage the Court in any great detail as in view of the law laid down by this Court in Jagdish Singh vs. Heeralal and others1 it would clear and evident that the suit filed by the second respondent (i.e. O.S. No.106 of 2009) is not maintainable. The matter need not engage the Court in any great detail as in view of the law laid down by this Court in Jagdish Singh vs. Heeralal and others1 it would clear and evident that the suit filed by the second respondent (i.e. O.S. No.106 of 2009) is not maintainable. In Jagdish Singh (supra) this Court after an elaborate consideration of the provisions of the SARFAESI Act, particularly, Section 2(zf),2(zc), 13(1), 17, 18 and 34, took the view, on almost similar facts, that a suit for partition would not be maintainable in a situation where proceedings under the SARFAESI Act had been initiated. It was also held that the remedy of any person aggrieved by the initiation of proceedings under the SARFAESI Act lies under Section 1 (2014) 1 SCC 479 17 which provides for an efficacious and adequate remedy to a party aggrieved. Paragraph 24 of the report in Jagdish Singh (supra) which make the above position clear may be usefully extracted below: “24. Statutory interest is being created in favour of the secured creditor on the secured assets and when the secured creditor proposes to proceed against the secured assets, sub-section (4) of Section 13 envisages various measures to secure the borrower's debt. One of the measures provided by the statute is to take possession of secured assets of the borrowers, including the right to transfer by way of lease, assignment or realising the secured assets. Any person aggrieved by any of the “measures" referred to in sub-section (4) of Section 13 has got a statutory right of appeal to the DRT under Section 17. The opening portion of Section 34 clearly states that no civil court shall have the jurisdiction to entertain any suit or proceeding “in respect of any matter" which a DRT or an Appellate Tribunal is empowered by or under the Securitisation Act to determine. The expression “in respect of any matter" referred to in Section 34 would take in the “measures" provided under sub-section (4) of Section 13 of the Securitisation Act. Consequently, if any aggrieved person has got any grievance against any “measures" taken by the borrower under sub-section (4) of Section 13, the remedy open to him is to approach the DRT or the Appellate Tribunal and not the civil court. Consequently, if any aggrieved person has got any grievance against any “measures" taken by the borrower under sub-section (4) of Section 13, the remedy open to him is to approach the DRT or the Appellate Tribunal and not the civil court. The civil court in such circumstances has no jurisdiction to entertain any suit or proceedings in respect of those matters which fall under sub-section(4) of Section 13 of the Securitisation Act because those matters fell within the jurisdiction of the DRT and the Appellate Tribunal. Further, Section 35 says, the Securitisation Act overrides other laws, if they are inconsistent with the provisions of that Act, which takes in Section 9 CPC as well." 5. Learned counsel for the petitioner would also submit that since the order passed by the trial court, rejecting the application under Order 1 Rule 10 CPC, is an interlocutory order, therefore, the remedy of revision is not available to the petitioner and the writ of Constitution of India. 6. The maintainability of the suit is not in question before this Court. This Court, in exercise of jurisdiction under Article 227 of The Constitution of India, is only supposed to decide the lis pending before this Court and cannot travel beyond it. 7. This Court in C482 No.434 of 2018 Ashu Dhiman v. Jyoti Dhiman and analogous matters, decided on 15.11.2018, has discussed in detail the meaning of word ‘interlocutory order" and has observed that an order, rejecting or allowing an application, pending proceedings, which adjudicates the rights of the parties to some extent, would not be termed as an interlocutory order and against that order revision would be maintainable. Relevant paragraphs of the said judgment are extracted hereunder: “13. The definition of word ‘interlocutory' in view of the definition in Black Law Dictionary is not explanatory in nature. The word ‘interlocutory order' has elaborately been defined in Halsbury's Laws of England, Volume 22 of the third edition at page 742. Para 1606 of the same reads as under: “1606. Final or interlocutory. No definition is given in the Judicature Acts, or the orders and rules there under, of the terms “final" or “interlocutory", and a judgment or order maybe final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. Para 1606 of the same reads as under: “1606. Final or interlocutory. No definition is given in the Judicature Acts, or the orders and rules there under, of the terms “final" or “interlocutory", and a judgment or order maybe final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required." 14. The Hon'ble Apex Court has interpreted and elaborately discussed the definition of interlocutory order in the case of Mohit alias Sonu and another vs State of Uttar Pradesh and another, (2013) 7 SCC 789 , wherein it has been held that an order which substantially affects rights of an accused or party or decides certain rights of the parties during pending proceedings is not an interlocutory order. The relevant paragraphs of the said judgment are excerpted hereunder: “25. In the light of the ratio laid down by this Court referred to hereinabove, we are of the considered opinion that the order passed by the trial court refusing to issue summons on the application filed by the complainant under Section 319 of Cr.P.C. cannot be held to be an interlocutory order within the meaning of sub-section (2) of Section 397 of Cr.P.C. Admittedly, in the instant case, before the trial court the complainant's application under Section 319 of Cr.P.C. was rejected for the second time holding that there was no sufficient evidence against the appellants to proceed against them by issuing summons. The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. As held by this Court in Amar Nath's case, (1977) 4 SCC 137 , an order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) of Cr.P.C. 28. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged. 32. The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-à-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to." 15. Hon'ble Apex Court in the case of Madhu Limaye vs The State of Maharashtra, (1977) 4 SCC 551 , has interpreted the scope of revision under Section 397(2) of Cr.P.C. and while interpreting the word ‘interlocutory order' and the powers of the High Court under Section 397(2) and 482 of the Cr.P.C., has held that an order which adjudicates / determines the rights of the parties to some extent cannot be said to be an interlocutory order and having considered the definition of ‘interlocutory order' gathered from the Halsbury's Laws of England has further held that in such contingency a revision is maintainable and remitted the matter to the High Court to decide the revision on merits. The relevant paragraphs of the judgment (supra) are extracted hereunder: 13. In S. Kuppuswami Rao v. The King 1947 FCR 180 : (AIR 1949 FC 1) Kania C. J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186 (of FCR) : (at p. 3 of AIR). The relevant paragraphs of the judgment (supra) are extracted hereunder: 13. In S. Kuppuswami Rao v. The King 1947 FCR 180 : (AIR 1949 FC 1) Kania C. J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186 (of FCR) : (at p. 3 of AIR). Lord Esher M. R. said in Salaman v. Warner, (1891) 1 QB 734 “If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it isfinal. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, ifgiven in the other, will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of Fry L. J. and Lopes L. J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time, there was no bar like section 397 (2) was not a “final order" within the meaning of section 205 (1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words ‘interlocutory order" occurring in section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397(1). But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397(1). On such a ‘strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the, 1898 Code. In what cases then the High Court will examine the legalityor the propriety of an order or the legality of any proceeding of an inferior Criminal court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies ? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, The River Wear Commissioners v. William Adamson(1) and R. M. D. Chamarbaugwalla v. The Union of India ( 2) that although the word occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression “interlocutory order" as invariably being converse of the words “final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. Some kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of subsection (2) of section 397. In our opinion it must be taken to be an order of the type falling in the middle course. 14. In passing, for the sake of explaining ourselves, we may refer to what has been said by Kania C. J. in Kuppuswami's case at page 187 by quoting a few words from Sir George Lowndes in the case of Abdul Rahman V. D. K. Cassim and Sons (3). The learned law Lord said with reference to the order under consideration in that case : “The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decidedan important, and even a vital, issue in thecase, but it left the suit alive, and providedfor its trial in the ordinary way." Many a time a question arose in India as to what is the exact meaning of the phrase ‘case decided' occurring I S. 115 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. In Baldevdas v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406 it has been pointed out : (at p 410): “A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy." We may give a clear example of an order in a civil case which may not be a final order within the meaning of Article 133 (1) of the Constitution, yet it will not be purely or simply of an interlocutory character. Suppose for example, a defendant raises the plea of jurisdiction of a particular Court to try the suit or the bar of limitation and succeeds, then the action is determined finally in that Court. But if the point is decided against him the suit proceeds. Of course, in a given case the point raised may be such that it is interwoven and interconnected with the other issues in the case, and that it may not be possible to decide it under Order 14 Rule 2 of the Code of Civil Procedure as I preliminary point of law. But, if it is a pure point of law and is decided one way or the other, then the order deciding such a point may not be interlocutory, albeit-may not be final either. Surely, it will be a case decided, as pointed out by this Court in some decisions, within the meaning of section 115 of the Code of Civil Procedure. We think it would be just and proper to apply the same kind to test for finding out the real meaning of the expression ‘interlocutory order' occurring in section 397(2)." 8. In view of the foregoing discussion, this Court is of the view that the impugned order, rejecting the impleadment application of third party, decides the rights of third party finally and nothing remains to be decided in regard to the applicant/petitioner thereafter. Thus, the order impugned has got no trappings of interlocutory order, rather it has got the trappings of a final order. 9. Thus, the order impugned has got no trappings of interlocutory order, rather it has got the trappings of a final order. 9. Power under Article 227 of the Constitution of India is superintendent in nature and can be exercised by the court to keep the subordinate courts and Tribunals in its meets and bounds to stop the foul play and to avoid miscarriage of justice. This power, however, cannot be used as an appellate or revisional power and must be exercised most sparingly when interference is called for in cases of grave dereliction of duty or flagrant violation of law. 10. In view of provisions contained in Section 115 of CPC (Uttarakhand State Amendment), the party aggrieved can prefer a revision against an order, which is not appealable and where the subordinate court appears to have exercised a jurisdiction not vested in it by law; or failed to exercise a jurisdiction so vested; or acted in exercise of its jurisdiction illegally or with material irregularity. Thus, in view of this Court, the order impugned is revisable under Section 115 of CPC. 11. Accordingly, writ petition is dismissed, being not maintainable, with liberty reserve to the petitioner to avail statutory remedy of revision u/s 115 of C.P.C. Needless to say, the petitioner would be entitled to get the benefit of Section 5 and 14 of The Indian Limitation Act. 12. No order as to costs.