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2021 DIGILAW 29 (MP)

Hariprakash Sharma v. State of M. P.

2021-01-13

SHEEL NAGU, VISHAL MISHRA

body2021
ORDER : Vishal Mishra, J. 1. The present petition is being filed being aggrieved by the in-action on the part of the respondents especially respondent no. 3 not deciding the objection filed by the petitioner in Case No. q/reader-1/Gwalior/2019 and the respondent no. 3 is taking steps for auctioning the property of the petitioner. It is submitted that petitioner owns and possess the built up house situated at Pradhan Sahab Ka Bada, Topewala Mohalla, Jiwajiganj, Lashkar, Gwalior bearing Municipal House No. 39/425/14 (old) subsequent No. 39/1218 and present Municipal House Number is 1179. The four corner of the built up house is mentioned in para 5.1 of the petition. 2. It is submitted that the previous owner namely Yash Pradhan S/o Late Shri Avinashchand Pradhan entered into an agreement to sale in favour of the petitioner's wife namely Smt. Krishna Sharma, by which he agreed to sale the aforesaid house to the petitioner's wife and in part performance of the agreement the possession of the said property was handed over to the petitioner's wife on 15.3.1990. Subsequently a sale deed was not executed, therefore, a civil suit was preferred being RCSA No. 495/2019 which is for specific performance of agreement to sale. The civil suit is pending consideration and during the pendency of the civil suit, Smt. Krishna Sharma died on 5.11.2018, therefore, the petitioner's name was substituted in place of Smt. Krishna Sharma. On 29.12.2018 respondent no. 4 Bank leveled a notice at the conspicuous part of the petitioner's house wherein it has been mentioned that the house no. 39/1080 is mortgaged by one Mr. Sanjay Sharma, S/o Hariprasad Sharma Proprietor Aashirwad Group. Thereafter the proceedings were initiated by the Bank and in pursuance to those proceedings the respondent no. 3 Tahsildar has issued notice on 18.11.2019. Immediately on receiving the notice, the petitioner has submitted the detailed reply/objection on 20.11.2019. The objection has not been decided by the respondent no. 3-Tahsildar and on 2.11.2020 the employee of the respondent no. 4-Bank came to the house of the petitioner and trying to forcibly dispossess the petitioner from the house. 3 Tahsildar has issued notice on 18.11.2019. Immediately on receiving the notice, the petitioner has submitted the detailed reply/objection on 20.11.2019. The objection has not been decided by the respondent no. 3-Tahsildar and on 2.11.2020 the employee of the respondent no. 4-Bank came to the house of the petitioner and trying to forcibly dispossess the petitioner from the house. It is argued that as the civil suit is pending consideration and the petitioner's being the bonafide purchaser of the property in question and in pursuance to the notice the objections have already been submitted before the concerning Tahsildar, therefore, prior to initiation of many proceedings regarding auctioning of the property of the petitioner, the objection ought to have been decided by the learned Tahsildar. The following reliefs is prayed for by the petitioner in the petition: "(I) That, respondent no. 3 Tehsildar, Tehsil District Gwalior may kindly be directed to decide the objection filed by the petitioner in Case No. Q/Reader-1/Gwalior/2019. (II) That, till deciding the objection filed by the petitioner respondent may kindly be directed not to take any coercive steps against the petitioner for dispossessed from house in question. (III) Any other writ, order or direction as this Hon'ble Court may deems fit in the facts and circumstances of the case be granted. Costs be awarded." 3. During the court proceedings on earlier date i.e. on 9.12.2020 the counsel appearing for the respondent no. 4 has pointed out that material fact has been suppressed by the petitioner to the effect that the loan was actually taken by his son Sanjay Sharma and to suppress the aforesaid fact the name of father of Sanjay Sharma has been mentioned as Hari Prasad Sharma instead of Hari Prakash Sharma. This Court has directed to the petitioner to file a specific affidavit with respect to the aforesaid suppression of fact. In pursuance to the same an affidavit has been filed by the petitioner dated 15.12.2020 and in the affidavit the name of Hari Prakash Sharma alias Hari Prasad Sharma, S/o Late Shri Jagannath Prasad Sharma is being mentioned. In para 4 of the affidavit, it is mentioned that his son Sanjay Sharma has taken the loan from the Bank, but on 29.12.2018 he has expired and thereafter on 18.11.2019 a notice has been issued from the office of Tahsildar, District Gwalior in the name of his son. In para 4 of the affidavit, it is mentioned that his son Sanjay Sharma has taken the loan from the Bank, but on 29.12.2018 he has expired and thereafter on 18.11.2019 a notice has been issued from the office of Tahsildar, District Gwalior in the name of his son. Nowhere in the aforesaid affidavit it is mentioned that Hari Prasad Sharma and Hari Prakash Sharma are one and the same person, only in the nomenclature of the affidavit it is mentioned that names of the father of Sanjay Sharma is being mentioned as Hari Prasad Sharma alias Hari Prakash Sharma. He has further admitted in the affidavit that his son Sanjay Sharma has taken loan from the bank. 4. In the writ petition the affidavit is being filed as Hari Prakash Sharma S/o Late Shri Jagannath Sharma. In para 1.4 of the petition it is mentioned that the petitioner's property is never being mortgaged at any point of time and despite of the same the respondent no. 3 has issued the notice of auction. From perusal of the entire body of the petition, it is clear that the petitioner has not mentioned the fact that the property is being mortgaged by his son, who has expired. On the contrary, it is mentioned in para 5.4 that the property is mortgaged by one Sanjay Sharma, S/o Hari Prasad Sharma. It is not mentioned by in the petition that Hariprakash Sharma and Hariprasad Sharma are one and the same person, as has been mentioned in the subsequent affidavit which has been filed by the petitioner. In para 9 of the objection/reply to the notice of Tahsildar it is mentioned that: ^^9- ;g fd- vkosnd }kjk fnukad 30@12@2018 dks fyf[kr esa vkifRr;kWa ÁLrqr dh Fkh rFkk mlesa Hkh mlds }kjk crk;k x;k Fkk fd mDr lEifr vkosnd dk vkf/kiR; gS] mDr lEifr ls lat; 'kekZ uked O;fDr dk dksbZ laca/k ugha gSA 10- ;g fd- cSad Áca/kd ,oa lat; 'kekZ }kjk vkil esa feydj QthZ #i ls /kks[kk/kMh+ djrs gq, _.k ÁkIr dj mDr lEifr dks xyr #i ls eksjxst fd;k x;k gSA** 5. It is clear from the aforesaid that the petitioner has tried to mislead the Court by suppressing the material information from this Court and tried to misguide the Court by wrongly mentioning the name of father of Sanjay Sharma, despite of the fact that Hari Prasad Sharma and Hari Prakash Sharma are one and the same persons as has been mentioned in the subsequent affidavit submitted by the petitioner and also that his son Sanjay Sharma has taken the loan from the Bank by mortgaging the property. 6. The law with respect to suppression of the fact is apparently clear as has been held by the Hon'ble Supreme Court in the case of Lal Bahadur Gautam Vs. State of U.P. and others, (Civil Appeal No(s). 4794 of 2019, decided on 8.5.2019) has held as under: "11. Simply, failure in that duty is a wrong against the justice delivery system in the country. Considering that over the years, responsibility and care on this score has shown a decline and so despite the fact that justice is so important for the Society, it is time that we took note of the problem and considered such steps to remedy the problem. We reiterate the duty of the parties and their Counsel, at all levels, to double check and verify before making any presentation to the Court. The message must be sent out that everyone has to be responsible and careful in what they present to the Court. Time has come for these issues to be considered so that the citizen's faith in the justice system is not lost. It is also for the Courts at all levels to consider whether a particular presentation by a party or conduct by a party has occasioned unnecessary waste of court time and if that be so, pass appropriate orders in that regard. After all court time is to be utilized for justice delivery and in the adversarial system, is not a licence for waste. As a responsible officer of the Court and an important adjunct of the administration of justice, the lawyer undoubtedly owes a duty to the Court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client as observed in State of Punjab & Ors. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client as observed in State of Punjab & Ors. vs. Brijeshwar Singh Chahal & Ors., (2016) 6 SCC 1 : "34....relationship between the lawyer and his client is one of trust and confidence. As a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as mouthpiece of his client....." The observations with regard to the duty of a counsel and the high degree of fairness and probity required was noticed in D.P. Chadha vs. Triyugi Narain Mishra and others, (2001) 2 SCC 221 : "22. A mere error of judgment or expression of a reasonable opinion or taking a stand on a doubtful or debatable issue of law is not a misconduct; the term takes its colour from the underlying intention. But at the same time misconduct is not necessarily something involving moral turpitude. It is a relative term to be construed by reference to the subject-matter and the context wherein the term is called upon to be employed. A lawyer in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand, more so, when there are conflicting claims. While discharging duty to the court, a lawyer should never knowingly be a party to any deception, design or fraud. While placing the law before the court a lawyer is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to persuade an exposition which would serve the interest of his client so long as the issue is capable of that resolution by adopting a process of reasoning. While placing the law before the court a lawyer is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to persuade an exposition which would serve the interest of his client so long as the issue is capable of that resolution by adopting a process of reasoning. However, a point of law well settled or admitting of no controversy must not be dragged into doubt solely with a view to confuse or mislead the Judge and thereby gaining an undue advantage to the client to which he may not be entitled. Such conduct of an advocate becomes worse when a view of the law canvassed by him is not only unsupportable in law but if accepted would damage the interest of the client and confer an illegitimate advantage on the opponent. In such a situation the wrong of the intention and impropriety of the conduct is more than apparent. Professional misconduct is grave when it consists of betraying the confidence of a client and is gravest when it is a deliberate attempt at misleading the court or an attempt at practicing deception or fraud on the court. The client places his faith and fortune in the hands of the counsel for the purpose of that case; the court places its confidence in the counsel in case after case and day after day. A client dissatisfied with his counsel may change him but the same is not with the court. And so the bondage of trust between the court and the counsel admits of no breaking. xxx xxx xxx It has been a saying as old as the profession itself that the court and counsel are two wheels of the chariot of justice. In the adversarial system, it will be more appropriate to say that while the Judge holds the reigns, the two opponent counsel are the wheels of the chariot. While the direction of the movement is controlled by the Judge holding the reigns, the movement itself is facilitated by the wheels without which the chariot of justice may not move and may even collapse. Mutual confidence in the discharge of duties and cordial relations between Bench and Bar smoothen the movement of the chariot. While the direction of the movement is controlled by the Judge holding the reigns, the movement itself is facilitated by the wheels without which the chariot of justice may not move and may even collapse. Mutual confidence in the discharge of duties and cordial relations between Bench and Bar smoothen the movement of the chariot. As responsible officers of the court, as they are called - and rightly, the counsel have an overall obligation of assisting the courts in a just and proper manner in the just and proper administration of justice. Zeal and enthusiasm are the traits of success in profession but overzealousness and misguided enthusiasm have no place in the personality of a professional. xxx xxx xxx 26. A lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception. A view of the law settled by the ruling of a superior court or a binding precedent even if it does not serve the cause of his client, must be brought to the notice of court unhesitatingly. This obligation of a counsel flows from the confidence reposed by the court in the counsel appearing for any of the two sides. A counsel, being an officer of court, shall apprise the Judge with the correct position of law whether for or against either party." That a higher responsibility goes upon a lawyer representing an institution was noticed in State of Rajasthan and another vs. Surendra Mohnot and others, (2014) 14 SCC 77 : "33. As far as the counsel for the State is concerned, it can be decidedly stated that he has a high responsibility. A counsel who represents the State is required to state the facts in a correct and honest manner. He has to discharge his duty with immense responsibility and each of his action has to be sensible. He is expected to have higher standard of conduct. He has a special duty towards the court in rendering assistance. It is because he has access to the public records and is also obliged to protect the public interest. That apart, he has a moral responsibility to the court. When these values corrode, one can say "things fall apart". He is expected to have higher standard of conduct. He has a special duty towards the court in rendering assistance. It is because he has access to the public records and is also obliged to protect the public interest. That apart, he has a moral responsibility to the court. When these values corrode, one can say "things fall apart". He should always remind himself that an advocate, while not being insensible to ambition and achievement, should feel the sense of ethicality and nobility of the legal profession in his bones. We hope, that there would be response towards duty; the hallowed and honoured duty." 7. Thus as there is a clear suppression of fact by the petitioner, this Court does not inclined to entertain the writ petition and the petition is liable to be dismissed with costs. 8. Even otherwise the recovery proceedings have been initiated by the Bank under the SARFESI Act for which law is well settled that no Court to entertain such proceedings. It falls under the Special Enactment of SARFESI Act and the Debt Recovery Tribunal is having jurisdiction to entertain those matters. As already pointed out by the petitioner as has been held by the Hon'ble Supreme Court in the case of United Bank of India Vs. Satyawati Tondon and others, (2010) 8 SCC 110 and in the case of Mardia Chemicals Ltd. and others Vs. Union of India and others, (2004) 4 SCC 311 has held that the jurisdiction of Civil Court is barred under section 34 for the matter in which Debt Recovery Tribunal is competent to decide. Recently the Hon'ble Supreme Court in the case of Civil Appeal No. 3441/2020 arising out of S.L.P. (Civil) No. 12381/2020 vide its judgment dated 5.11.2020 has held as under: "21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors., held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the remedy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, however, borrowers and other aggrieved persons are invoking the jurisdiction of the High Court under Articles 226 or 227 of the Constitution of India without availing the alternative statutory remedy. The Hon'ble High Courts are well aware of the limitations in exercising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money. 9. In view of the overall analysis of the facts and circumstances of the case and coupled with the fact that the petitioner has tried to mislead this Court by suppressing the material information from this Court, this Court does not deem it appropriate to entertain the writ petition. The writ petition is dismissed imposing costs of Rs. 20,000/- (Rupees Twenty Thousand) upon the petitioner to be deposited with the Administrator of Mercy Home Gwalior in the Account No. 51432040002780 IFSC Code-PUNB0514310 of Punjab National Bank, Branch Gwalior, Mansik Arogyashala, Jail Road, Gwalior within a period of one month from the date of receipt of certified copy of this order. The amount so deposited shall only be utilized for the benefit of children residing at Mercy Home during this COVID-19 pandemic. 10. If the amount is not deposited within the aforesaid period the Collector, District Gwalior is directed to initiate proceedings for recovery of the amount as arrears of land revenue under the relevant provisions of M.P.L.R.C. The compliance report be submitted within a period of three months before the Principal Registrar of this Court, failing which the matter be listed under the heading of "Directions" after three months. 11. With the aforesaid observation, the petition filed by the petitioner is dismissed. E-copy/Certified copy as per rules/directions.