1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.1746/2010 Nagpur Nagrik Sahakari Bank Ltd. through its General Manager ...Versus... Union of India, Ministry of Finance through its Secretary, New Delhi and others --------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------------------------------- [Shri Rajiv Madkholkar with Shri G.M. Shitut, Advs. for petitioner] [Mrs. Anjali Joshi, Adv. for respdt. Nos.1 to 3] CORAM:- V.C. DAGA AND A.B. CHAUDHARI, JJ. DATED :- 13.12.2010 Perused petition. Heard learned Counsel for the parties. On the last date of hearing when this matter came up for admission before this Court, after having heard learned Counsel for the petitioner the matter was adjourned with a view to permit the petitioner to take instructions to withdraw this petition since the issue involved in this matter is squarely covered by the judgment of the Apex Court in the case of Greater Bombay Coop. Bank Ltd.....United Yarn Tex (P) Ltd. and others, reported in 2007 (6) Supreme Court Cases 236. That is how, today, it is placed on board for admission. The Recovery Officer of the D.R.T. has issued show cause notices to all the decree holders as to why execution proceedings pending on his file should not be dismissed since he does not have jurisdiction to execute recovery certificates in view of the judgment of the Apex Court in the case of Greater Bombay Coop. Bank Ltd. (supra). 2 Learned Counsel appearing for the petitioner urged that the judgment of the Supreme Court in the case of Greater Bombay Coop. Bank Ltd. (supra) will have a prospective application and therefore, the recovery certificates issued prior to the judgment of the Apex Court in the case of Greater Bombay Coop. Bank Ltd. (supra) can be executed and recovery proceedings can be proceeded with and recovery of debt can be made by D.R.T.. In support of the above submission, reliance is placed on the judgments of the Apex Court in the case of Raj Narain Pandey ...Versus...Sant Prasad Tewari, reported in 1973 (2) Supreme Court Cases 35; Union of Indian....Versus...Mohd. Ramzan Khan, reported in 1991 (1) Supreme Court Cases 588; Managing Director ECIL, Hyderabad...Versus...B. Karunakar, reported in 1993 (4) Supreme Court Cases 727; and Harsh Dhingra : Sant Kumar...Versus...State of Haryana, reported in 2001 (9) Supreme Court Cases 550. The Submission made has no merit. The reliance placed on the judgments is misplaced. In the case of P.V. George and others...Versus...State of Kerala and others, reported in 2007 (3) Supreme Court Cases 557 the Court observed as under :- “The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf. It may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest 3 of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term.” So far as the judgment of the Supreme Court in the case of Greater Bombay Coop. Bank Ltd. (supra) is concerned, the Supreme Court has nowhere stated that it will have prospective application. Consequently, the law declared by the Supreme Court will have retrospective effect, if not otherwise stated to be so. In the case of M.A. Murthy...Versus...State of Karnataka and others, reported in 2003 (7) Supreme Court Cases 517, the Court observed as under :- “Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath v. State of Punjab. In Managing Director, ECIL v. B. Karunakar the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of 4 settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P. and Baburam v. C.C. Jacob.) It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling.” (Emphasis supplied) In view of the above settled position of law, we are of the considered view that the Recovery Officer is perfectly justified in issuing notices with a view to hear the decree holders. As a matter of fact, the decree-holder Bank was expected to obtain appropriate orders from the Recovery Officer after advancing submissions. However, the Bank preferred to file this petition before there could be any adjudication. In the normal course, we would have remitted this matter to the Recovery Officer for his decision on merits. However, since the issue is squarely covered in the case of Greater Bombay Coop. Bank Ltd. (supra), we think it would be futile to send back this matter to the Recovery Officer with direction to hear the parties and pass a reasoned order. 5 Since the issue is squarely covered by the judgment in the case of Greater Bombay Coop. Bank Ltd. (supra), the Recovery Officer is justified in prima facie holding that he has no jurisdiction to proceed with the matter and in fact, now, he does not have jurisdiction. The challenge set-up is misplaced. In the above of the matter, the writ petition is without any substance. The Recovery Officer shall pass formal order disposing of execution proceedings pending on his file after taking reply to the show cause notice on his file with expeditious despatch leaving the decree holders to find appropriate remedy as may be available in law. In the result, writ petition is dismissed in limini. No order as to costs. JUDGE JUDGE SSW