1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 472 OF 2008 IN WRIT PETITON NO. 1063 OF 2003 Shivangi D. Shah & Anr. ...Appellants Versus The Greater Bombay Cooperative Bank Ltd. & Ors. ...Respondents And Oman International Bank SADG ...Intervener Mr. Aspi Chinoy, Senior Advocate, with Mr. F. DeVitre, Senior Advocate, and Mr. P. Rao i/by Mr. Chacko Joseph for the Appellants Mr. Ravi Kadam, Advocate General, with Mr. Vivek Walawalkar i/by Mr. S.R. Bhalekar for Respondent No. 1 Mr. Milind More, Assistant Government Pleader, for Respondent No. 4 Mr. J.J. Bhatt, Senior Advocate, with Mr. S.C. Naidu i/by Mr. Sean Wasoodew for Respondent No. 5. CORAM: D.K. DESHMUKH AND SMT. R.P. SONDURBALDOTA, JJ. DATE: JULY 08, 2010 2 P.C.:- By this appeal, the appellants challenge the order dated 11th January, 2008 passed by the learned single Judge in Writ Petition No. 1063 of 2003. 2. The present appellants had given guarantee to respondent No.1-Bank when it advanced loan to respondent No. 2. Default was committed by respondent No.2 in repaying the loan. Therefore, the Recovery Certificate was secured by respondent No.1 from the Authority under the Maharashtra Co-operative Societies Act, 1960. Though that Recovery Certificate was challenged before various authorities, the position is that that Recovery Certificate has become final. Respondent No.1 initiated proceedings for sale of the property belonging to the appellants in execution of the Recovery Certificate. 3. So far as the present proceedings are concerned, suffice it to note that on 22nd February, 2003 and 17th March, 2003, 3 notices were issued by the Special Recovery Officer to the appellants, informing them that the Bank has decided to sell their property, viz., Saket Bungalow, and asking them to vacate the same. Writ Petition No. 1063 of 2003 was filed by the appellants in the month of March, 2003, challenging the notices dated 22nd February, 2003 and 17th March, 2003. 4. During the pendency of that petition, auction of the property was held on 29th June, 2003. The appellants filed a Revision Application before the Divisional Joint Registrar, Co-operative Societies, challenging the Auction Notice dated 23rd June, 2003. In that Revision Application, an interim order was passed by the Divisional Joint Registrar, admitting that Revision and granting an order of status quo. Against that order, Writ Petition was filed in this Court by the Bank, challenging the interim order granted by the Divisional Joint Registrar. That Writ Petition was decided by a learned single Judge of this Court by order dated 3rd October, 2003. The number of that Writ Petition is 5244 of 2003. The learned single Judge not only allowed that petition, 4 but held that the conduct of the present appellants of filing Revision amounts to abuse of process of law. 5. Letters Patent Appeal No. 125 of 2003 was filed against the order of the learned single Judge dated 3rd October, 2003. It appears that in that Letters Patent Appeal, interim order was sought by the appellants, and the interim order was granted, subject to the condition of their depositing certain amounts in court. Time for depositing the money was got extended by the appellants. A cheque was handed over, but even that cheque was dishonoured, and money was not deposited. Ultimately, by order dated 2nd July, 2004 passed in Civil Application No. 341 of 2003, the interim order was vacated. The Division Bench observed that the conduct of the appellants amounts to abusing the process of the Court. 6. In the Letters Patent Appeal, Civil Application No. 654 of 2005 was filed, seeking an order setting aside the sale of the property dated 7th July, 2003 in favour of respondent No. 5 5 because after the interim order granted by the Divisional Joint Registrar was vacated, the process of sale was completed, and the property was sold to respondent No. 5. Admittedly, that Civil Application and the Letters Patent Appeal were withdrawn by the appellants. 7. Thereafter, a Chamber Summons was taken out, being Chamber Summons No. 175 of 2007, seeking amendment in the writ petition. The amendment sought in the petition was basically to challenge the sale dated 7th July, 2003. That amendment was allowed by an order dated 17th July, 2007. The amendment was incorporated in the petition. That petition was finally heard and disposed of by the learned single Judge of this Court by his order dated 11th January, 2008. The learned single Judge dismissed the petition. It is this order which is challenged in the appeal. 8. Admitted facts are that the property of the appellants has been sold now to respondent No. 5. Admittedly, respondent No. 5 was not the highest bidder. It is also an admitted position 6 that the person, who was declared as the highest bidder, committed default in depositing the amount. At that stage, respondent No.5, Mehta Trading Co., came forward, offering an amount of Rs.1,60,00,000/- for the property. Its bid was accepted. Admittedly, it also did not deposit the amount within time as required by the provisions of Rule 107 of the Rules framed under the Maharashtra Co-operative Societies Act (hereinafter, 'the said Rules' for short); and, therefore, the learned single Judge has recorded a categorical finding that the sale of the property in favour of respondent No.5 is in breach of the mandatory conditions contained in clauses (h) and (g) of Rule 107 of the said Rules. The learned single Judge has dismissed the petition mainly for two reasons: (1) challenge to the validity of the sale was raised by the appellants in Civil Application No. 154 of 2005, which was filed in Letters Patent Appeal No. 125 of 2003. That Letters Patent Appeal and the Civil Application were unconditionally withdrawn by the appellants; and, therefore, they are deemed to have abandoned the claim that the sale in favour of respondent No. 5 is invalid; 7 and, therefore, they cannot be permitted to raise that contention in the Writ Petition. (2) Looking to the conduct of the appellants in the matter of sale of their property, and the observations of the learned single Judge and the Division Bench that their conduct amounts to abusing the process of law, they are not entitled to any relief in the extra-ordinary jurisdiction of the Court under Article 226 of the Constitution of India. 9. The learned senior counsel appearing for the appellants submitted that though it is true that the contention regarding invalidity of sale was raised in the Letters Patent Appeal filed by the appellants, and that Letters Patent Appeal was unconditionally withdrawn, in view of the law laid down by the Supreme Court in its judgment in the case of Sampath Kumar v. Ayyakannu & Anr., reported in (2002) 7 Supreme Court Cases 559, as the amendment in the Writ Petition was granted by the learned single Judge by order dated 17th July, 2007, the amendment relates back to the 8 date of institution of the Writ Petition, the challenge to the same was already raised in the Writ Petition, which was pending in Court, and, therefore, withdrawal of the Letters Patent Appeal will not result in abandonment of the claim. According to the learned senior counsel, therefore, the learned single Judge was not justified in dismissing the petition for this reason. The learned senior counsel also relied on the observations of the Supreme Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior, & Ors., reported in AIR 1987 Supreme Court 88, as also the judgment of the Supreme Court in the case of Sardara Singh (Dead) by LRs. & Anr. v. Sardara Singh (Dead) & Ors., reported in (1990) 4 Supreme Court Cases 90. The learned senior counsel submitted that the petitioners had filed Revision, challenging the notice asking them to deliver possession before the sale of the property was conducted. The Revision was filed before the Divisional Joint Registrar, challenging the same. That Revision was dismissed. Filing of that Revision Application was held to be abuse of the process of the Court, because any challenge to the sale could have been raised in the Writ Petition, which was pending in 9 this Court. However, when that contention was raised in the Writ Petition, that contention has not been accepted by the learned single Judge, because, according to the learned single Judge, filing of the Revision amounted to abuse of the process of the Court. It is submitted that at that time, the appellants were challenging the Recovery Certificate and steps taken pursuant thereto; but now, it is the case of the appellants that the property can be sold, but the sale in favour of respondent No.5 is illegal, as it has been held to be in violation of the mandatory provisions of the Rules. The learned senior counsel submits that for this reason, therefore, the Court should not have declined to set aside the sale at the instance of the appellants. 10. We have heard the learned Advocate General appearing for the Bank, as also the learned senior counsel for respondent No. 5. It was submitted that even if the learned senior counsel appearing for the appellants is right in contending that an order allowing amendment in the pleadings whenever passed relates back to the date of institution of the proceedings, unless the 10 Court allowing the amendment directs otherwise, then also, in the present case, the amendment granted by order dated 17th July, 2007 in the Writ Petition cannot relate back to the date of institution of the Writ Petition, because, by the amendment, what is challenged is the sale which took place after the institution of the petition, and, therefore, cause of action for challenging the sale accrued after the petition was instituted. Therefore, at the most, it can be said that the amendment relates back to the date on which the amendment application was filed, and as that date was admittedly after the date on which the Letters Patent Appeal and the Civil Application were withdrawn, in view of the law laid down by the Supreme Court in its judgment in the case of Sarguja Transport Service, referred to above, the petitioners cannot be allowed to raise that contention in the Writ Petition. It was further submitted that so many litigations have been lodged by the petitioners to oppose the sale of the property and prevent the Bank from getting the money, which was admittedly due to the Bank. Therefore, the learned single Jude is truly justified in declining to grant any relief in favour of the appellants. 11 11. Now, if, in the light of these rival submissions, the record of the case is perused, it appears to be an admitted position that the contention that the sale of the property in favour of respondent No. 5 is invalid, as it is brought about in breach of the mandatory provisions of the Rules, was raised in the Letters Patent Appeal, and that Letters Patent Appeal was withdrawn unconditionally, without securing leave of the Court to raise that contention in further proceedings. 12. The Supreme Court, in paragraph 7 of its judgment in the case of Sarguja Transport Service, has considered the law in relation to the institution of successive proceedings on the same cause of action by the litigants. What is observed by the Supreme Court in paragraph 7 of its judgment in that case, in our opinion, is relevant. Paragraph 7 reads as under:- "The Code (of Civil Procedure, 1908) as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff 12 abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of R. 1 of O. XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter of such part of the claim. The principle underlying R. 1 of O. XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of R. 1 of O. XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in S. 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has 13 been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of R. 1 of O. XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court." (Emphasis supplied) 13. It is, thus, clear that the Supreme Court has laid it down as a law that if in proceedings a plea is raised, and those proceedings are withdrawn, without securing leave of the Court to 14 institute fresh proceedings, the litigant is barred from raising that plea in any subsequent proceedings. 14. The learned counsel appearing for the petitioners relied on the observations of the Supreme Court in the case of Sampath Kumar, referred to above, to contend that unless the Court specifically directs that an amendment in pleadings, which is permitted by the Court, shall not relate back, it relates back to the date of the institution of the suit. In our opinion, what is observed by the Supreme Court in paragraph 10 of the judgment is relevant. Paragraph 10 reads as under:- "An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed..." 15 15. Perusal of the above observations of the Supreme Court makes the position clear that the doctrine of relation-back in the context of amendment of pleadings is not one of universal application; and that in appropriate cases, the court is competent, while permitting an amendment, to direct that the amendment shall not relate back to the institution of the suit or to the date on which application for amendment was made. In our opinion, if cause of action, which is the basis of the amendment, had arisen before the suit was instituted, then, if, during the pendency of the suit, amendment is granted by the Court, without saying anything, it can be safely assumed that that amendment relates back to the date of the institution of the suit. But, if the cause of action for making a claim, which is the basis of the amendment, had not arisen on the date of the institution of the suit or petition, then, there is no question of amendment, which has been granted relating back to the date of the institution of the petition, because, on the date on which the petition was instituted, that cause of action had not even arisen. It is clear from the observations of 16 the Supreme Court in its judgment in Sampath Kumar's case, referred to above, that an amendment can relate back to only two dates: (1) the date of the institution of the suit, and (2) the date of the institution of the application for amendment. The Supreme Court has said that if an amendment is granted in pleadings, the Court can direct that the amendment will not relate back to the date of institution of the suit, but will relate back to the date of making of application for amendment. In our opinion, in cases where the cause of action, on the basis of which the amendment application is made, arises during the pendency of the suit, and is not available on the date of institution of the suit, then, of necessity, if amendment is granted, it will relate back to the date of the application, because it is impossible that the amendment can relate back to the date of the institution of the suit, because the cause of action, on the basis of which the application is itself made, had not then arisen. Perusal of paragraph 11 of the judgment of the Supreme Court in Sampath Kumar shows that in that case also, cause of action had arisen during the pendency of the suit and, therefore, in that case, the Supreme Court has observed that the 17 amendment will relate back to the date of application for amendment. 16. We, thus, find that on grant of amendment in the Writ Petition by order dated 17th July, 2007, the amendment will relate back to the date of institution of the application for amendment, and that date is, admittedly, after the date of withdrawal of the Letters Patent Appeal and the Civil Application, and, therefore, in our opinion, the learned single Jude was justified in holding that in view of the withdrawal of the Letters Patent Appeal, without securing liberty, the appellants could not have raised the plea in the Writ Petition, and, therefore, in our opinion, that part of the order of the learned single Judge is perfectly legal. 17. So far as the other reason given by the learned single Judge that because of the observations made in the previous orders that the appellants are guilty of abuse of process of the Court, they are not entitled to any relief from the Court in its Extra-ordinary Jurisdiction under Article 226 of the Constitution of India is 18 concerned, in our opinion, there is some substance in the submission made on behalf of the appellants that the appellants were found to have abused the process of law by raising the plea about invalidity of the sale before the Divisional Joint Registrar in Revision, because they could have raised that plea in the Writ Petition, and when they raised the plea in the petition, that plea was not considered, because it was raised in the Revision. In our opinion, the aspect that ought to have been considered by the learned single Judge is that in the Writ Petition, the petitioners were claiming that they are challenging only the sale of the property in favour of respondent No. 5; and they are not now contending that the property cannot be sold. However, as we find that the petitioners could not have raised the plea in the petition because of the withdrawal of the Letters Patent Appeal, in our opinion, it is not necessary to record any final conclusion on this aspect. 18. In the result, therefore, the appeal fails, and is dismissed. 19 19. At the request of the learned senior counsel appearing for the appellants, despite dismissal of the appeal, the operation of the interim order, which is presently operating, is continued for a period of 6 weeks from today. (D.K. DESHMUKH, J.) (SMT. R.P. SONDURBALDOTA, J.)