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2021 DIGILAW 631 (ALL)

Naresh Gill v. Union Of India

2021-07-06

DINESH PATHAK, MANOJ MISRA

body2021
JUDGMENT : 1. Heard Sri Rohit Kumar Singh for the petitioner; learned Standing Counsel for the respondents 1, 2 and 3; and Sri Ram N. Kaushik for the respondent no.4. 2. According to the petitioner, by taking recourse to the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act), the Asset Reconstruction Company (India) Limited (the fourth respondent) put the land and building located at plot No.223, Khata No.152, Village Abupur, Murad Nagar, Delhi-Meerut Road, Ghaziabad to auction. The petitioner being the highest bidder, deposited the sale consideration of Rs.4,30,00,000/-to the credit of the fourth respondent. Pursuant to which, a sale deed was drawn and submitted for registration in the office of the third respondent (Sub-Registrar, Modi Nagar, District Ghaziabad). The third respondent, however, by citing an order of injunction passed by a Court at District Chhapra, State of Bihar, refused to register the sale deed. 3. The prayer in this petition is to command the third respondent to register the sale deed and give effect to the transaction. 4. The contention of the learned counsel for the petitioner is that though there is an order of injunction passed by the Court at Chhapra, State of Bihar, in respect of property located in the State of Uttar Pradesh, but that order is without jurisdiction. Otherwise also, the suit in which injunction order has been passed is barred by Section 34 of the SARFAESI Act and, therefore the order of injunction is void and is liable to be ignored. It is thus claimed that the Sub-Registrar should ignore the order and proceed with the registration of the sale deed. 5. Sri Ram N. Kaushik, who appears for respondent no.4, supports the stand of the writ petitioner. However, the learned standing counsel, who represents the state respondents, submits that so long the injunction order lasts the third respondent, who is a party in the suit instituted at Chhapra, is bound by the order and would not be justified to ignore the same and suffer the consequences of wilful disobedience of court’s order. 6. Having noticed the rival submissions, we proceed to peruse the record. 6. Having noticed the rival submissions, we proceed to peruse the record. A perusal of the record would reflect that one Shiv Chaudhary instituted a Suit No.529 of 2020 in the court of Munsif-First, Saran, Chhapra impleading (a) Rajendra Singh; (b) Asset Reconstruction Company (India Ltd.) (the fourth respondent herein); and (c) Sub-Registrar, Modi Nagar, District Ghaziabad (third respondent herein) as defendants. The suit property is plot No.223 at Village Abupur, Tehsil Modinagar, District Ghaziabad. The prayer in the suit is to restrain the defendants from creating third party rights over the suit property. The basis of the suit is some Memorandum of Understanding. From the document appended as Annexure No.5 to the petition it appears that on 06.11.2020 a temporary injunction order has been passed in that suit restraining sale. 7. Upon consideration of the rival submissions and perusal of the record the issue that falls for our consideration is, whether in exercise of our discretionary jurisdiction under Article 226 of the Constitution of India we should issue a direction upon an officer of the State to ignore the order of a civil court and proceed with the registration of the deed. The answer to it would be NO. The reason for it is that a writ court must not issue directions which has the effect to defeat a court’s order because that would have a devastating effect on the sanctity of court proceedings and would encourage people to flout orders of the court by having an interpretation of their choice to suit their end. Such a direction, as prayed for by the petitioner, would not only defeat the ends of justice but would go against the prevalent public policy. In this context, we may refer to a decision of the Apex Court in Surjit Singh V. Harbans Singh, (1995) 6 SCC 50 , where on the basis of a sale made in defiance of court's order impleadment was sought. The Apex Court was required to decide whether such sale could form basis for seeking impleadment, or it be treated as void. Rejecting prayer for impleadment on the strength of such sale, the Apex Court observed: “..If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. The Apex Court was required to decide whether such sale could form basis for seeking impleadment, or it be treated as void. Rejecting prayer for impleadment on the strength of such sale, the Apex Court observed: “..If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/ assignment as having not taken place at all for its purposes.” Similarly, in Tayabbhai M. Bagasarwalla & another Versus Hind Rubber Industries Pvt. Ltd. and others, (1997) 3 SCC 443 , one of the issues that came for consideration before the Apex Court was whether a defendant would be liable to be punished under Order 39 Rule 2-A of the Code of Civil Procedure, 1908 (‘CPC”) for violating an order of injunction passed in a suit which was subsequently found to be out of the jurisdiction of the court that passed the injunction order. The facts of that case were that a preliminary objection as to the jurisdiction of the civil court was taken. The civil court without first addressing the preliminary objection proceeded to grant interim injunction. The interim injunction was not complied by the defendant. Later, the preliminary objection was rejected and the interim injunction was made absolute. The defendant took the matter in appeal questioning the jurisdiction of civil court. Ultimately, it was held that the civil court had no jurisdiction. In that background the issue that arose was as to what would be the consequence of non-compliance of the interim inunction so long it was in operation and whether there could be lawful proceeding under Order 39 Rule 2-A CPC against the defendant for its violation. The Apex Court held that so long the interim injunction was in operation any violation of it would justify proceeding under Order 39 Rule 2-A CPC and that subsequent order of the appellate court holding that the civil court held no jurisdiction would not render the interim injunction order non-est. The Apex Court held that so long the interim injunction was in operation any violation of it would justify proceeding under Order 39 Rule 2-A CPC and that subsequent order of the appellate court holding that the civil court held no jurisdiction would not render the interim injunction order non-est. The legal principle deducible from the decision noticed above is that so long the order of the court operates it is not appropriate for any party bound by the order to violate the same by having its own interpretation of the order. For all the reasons stated above, we are of the firm view that it would not be proper on our part, particularly, when we do not have power of superintendence over the civil court at Chhapra, (State of Bihar), to direct the third respondent to register the sale deed in the teeth of the injunction order granted by the civil court at Chhapra, State of Bihar. 8. We may hasten to clarify that where the court, whose order is questionable, falls within the power of superintendence of the writ court, that writ court exercising its power of superintendence over that subordinate court may not only set aside the order but may issue such directions as may be justified in law. But, here, we do not have the power of superintendence over the Court at Chhapra which falls in the State of Bihar therefore, even if we find substance in the submission of the learned counsel for the petitioner that the suit as framed is barred by the provisions of Section 34 of the SARFAESI Act, it would not be appropriate on our part to comment on the merits of the order of Chhapra Court and declare it void more so when the person who instituted the suit is not party in this writ petition. We, therefore, decline the prayer of the writ petitioner and dispose off this petition by giving liberty to the petitioner as well as the respondents 3 and 4 to take recourse to such other appropriate legal remedy as may be advised to them.