CRA/244/2006 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 244 of 2006 With CIVIL REVISION APPLICATION No. 243 of 2006 With CIVIL APPLICATION No. 3456 of 2008 In CIVIL REVISION APPLICATION No. 243 of 2006 With CIVIL APPLICATION No. 3457 of 2008 In CIVIL REVISION APPLICATION No. 244 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HARSHADRAI V.SHAH - Applicant(s) Versus JITUBHAI RAMNIKLAL MODI. - Opponent(s) ========================================================= Appearance : MR RD DAVE for Applicant(s) : 1, 1.2.1, 1.2.2,1.2.3 None for Opponent(s) : 1, MR HARSHIT S TOLIA for Opponent(s) : 1.2.1 ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/06/2008 CRA/244/2006 2/13 JUDGMENT COMMON ORAL JUDGMENT 1. These Revision Applications have been heard together as identical issues are involved and the contentions are same and therefore the counsel for the parties have requested for hearing them together and disposing them by way of this common judgement. 2. The applicant hereinabove has assailed the order dated 19.07.2006 passed by the Executing Court in Special Executing Petition No. 157 of 2003 and 158 of 2003 whereunder the applicant's objection in continuing the execution proceedings have been rejected by the learned court. 3. The facts in brief deserve to be set out as under in order to appreciate the controversy in question: 3.1 The present applicant in course of his business borrowed money against which he issued cheques including the amount of interest for short term from many citizens. The present opponents also advanced some amount against which they received deposit and cheque which included the interest to be paid on that amount. It was a transaction simplicitor of borrowing money from known parties. The cheques CRA/244/2006 3/13 JUDGMENT issued by the applicant were not honoured when presented to the bank and therefore the bank sent an intimation that the cheques have been bounced. The transactions and bouncing of the cheques took place somewhere in the year 1998. The suits came to be filed for realising the amount being Summary Suit Nos. 32/01 and 33/01 for an amount of Rs. 4,07,500/- and Rs. 4,21,250/- respectively. 3.2 The present applicant did not remain present and the suits were required to be decreed exparte. The order and decree was passed on 08.05.2003 whereas the Summary Suit No. 33/03 came to be allowed and decree was passed on 04.05.2002. The applicant did not do anything thereafter and ultimately as the amount had not been realised, the execution petition came to be filed being Special Execution Petition No. 157/03 and 158/03. 3.3 In the executing proceedings for the first time the applicant appeared and attempted to resist the execution on the spacious grounds about decrees being nullity as the suits itself were time barred and on a broad contention with regard to non-executability of the decrees for the reasons that against the property CRA/244/2006 4/13 JUDGMENT there was already a prior charge of various banks. The executing court vide order dated 19.07.2006 did not accept the objections and hence the present Civil Revision Applications. 4. Mr. R.D Dave, learned advocate appearing for the applicant contended that the decrees were nullity as the suits were time barred and therefore when the decrees were nullity the same could not have been the subject matter of execution. He further contended that the decrees were not executable in view of the statutory ban operating against its execution. Mr Dave also contended that the decrees were not executable on account of prior charge on the property from banks like IDBI and SBI. In short all attempts were made to thwart the decrees and deprive the defendants of their legitimate rights to the decrees. 4.1 Mr. Dave has submitted that as per the decision of the Apex Court in the case of Sant Lal Mahton vs. Kamala Prasad and others reported in AIR 1951 SC 477 wherein the suit itself was time barred as could be seen from the dates mentioned in the plaint itself, the original plaintiff's attempt to bring the suit CRA/244/2006 5/13 JUDGMENT within the time limit on account of so called payment of Rs. 5000/- made by the original defendant, would be of no avail to the present applicant, as the assertion made by the plaintiff in the suit is only a piece of evidence for indicating payment of debt which in the light of clear provisions of section 19 of the Limitation Act as read with its proviso would not be sufficient as it lays down clearly that the written acknowledgement of payment is infact essential for extending the period of limitation. In support of his submission, the aforesaid decision of the Apex Court is relied upon by Mr. Dave. 4.2 The next contention of Mr. Dave is that in view of the statutory rules having force of the statute promulgated under the Finance Act, Rule 16 clearly provides alienation to be found in certain cases wherein a mention is found that the civil courts shall not issue any process against such property in execution of decree for payment of money. Relying upon this rule, Mr. Dave attempted to say that the decrees can be said to be not executable as income tax notices were placed on record at Ex. 16 and therefore even on this count also the order impugned deserves to be quashed and set aside. CRA/244/2006 6/13 JUDGMENT 4.3 Mr. Dave further submitted that the property against which the execution is sought was under the charge of IDBI and SBS banks and therefore when the recovery proceedings under the Debt Recovery Tribunal Act were going on and as per the provisions of the Recovery Act also, the recovery of bank dues are to be effected as per the provisions of Schedule 2 and 3 of the Income Tax Act and therefore from that angle also there appears to be a specific ban against the civil court issuing process against such property and the order impugned deserves to be quashed and set aside. 4.4 Mr. Dave submitted that the suit itself was not maintainable as the transaction in question was that of money lending and clearly barred as the plaintiff did not have money lender's license and the transaction was that of money lending covered by the provisions of the Bombay Money Lenders Act. He further submitted that this transaction cannot be saved by sub clause of section 2(9) and the transaction cannot be said to be against the Negotiable Instruments Act as it is sought to be made. CRA/244/2006 7/13 JUDGMENT 5. Mr Tolia, learned advocate appearing for the respondent submitted that the revisions are misconceived and the same deserve to be dismissed. He has submitted that the contentions which have been canvased by the learned advocate for the petitioner before this court have conspicuously been absent before the Executing Court and therefore these contentions are not required to be considered. 5.1 Further without prejudice to his contentions, Mr. Tolia has submitted that decrees cannot be said to be nullity so as to permit the defaulter and the decree debtor to contend before the Executing Court that the suits were time barred. Mr Tolia has relied upon the decision of the Apex Court in the case of Ittyavira Mathai v. Varkey Varkey and another reported in AIR 1964 SC 907 and submitted that in light of the observation of the Apex Court it is not open to anyone to resist the decree on the ground of suit itself being time barred. A decree drawn by the competent court even after suffering from error needs to be respected and complied with unless it is reversed by the appellate court and the debtor has no CRA/244/2006 8/13 JUDGMENT right to resist the execution proceedings on such spacious plea especially when he permitted the suit to be proceeded exparte and when he did not bother to even apply for restoration under Order 37 Rule 4 nor did he bother to challenge the exparte decree by preferring First Appeal at a belated stage of execution. Such a plea cannot be accepted and therefore the Executing Court has rightly passed the order. 5.1 With regard to the submission of statutory provisions, Mr. Tolia submitted that the rule pressed into service namely Rule of the Rules figuring under the Appendix to the Finance Act would not be so construed so as to hinder the execution proceedings. It is cast only with a view to protect the revenue and it is for the executing court to decide while issuing the process as to whether the property in question is under any encumbrance or any charge or proceedings by revenue authorities or by other bankers. Mr. Tolia submitted that there are various ways to execute the decrees for realising the money and therefore this submission would also be of no avail. Mr Tolia submitted that ofcourse without prejudice such contentions were never raised before CRA/244/2006 9/13 JUDGMENT the Executing Court as he invited this Court's attention to the objections at Ex. 9 as well as written submission at Ex. 15 wherein in no way this objection has been articulated by the applicant and when this is not contended it is not open to the applicant to contend for the first time before the Revisional Court and therefore on this count also Mr Tolia submitted that the petition deserves to be dismissed. 5.2 Mr. Tolia has also submitted that the reasoning applicable to reject the second contention of the petitioner qua the statutory ban would also be applicable to answer the question with regard to the third contention and therefore he did not make submission on the third contention in particular. 6. Heard learned counsel for the parties. This court is of the considered view that the following undisputed points deserve to be taken into consideration: (i)The contentions were made way back in the year 1998 against a cheque of an amount which included the interest to be paid on that amount CRA/244/2006 10/13 JUDGMENT which was borrowed. The cheque which was issued was not honoured and the defendant and the present respondent did not even have the principal amount. (ii)The present applicants have borrowed such type of amount from various agencies and citizens and during this proceeding, Mr. Dave has submitted that the applicants have not discriminated against anyone and have paid 25% to these defendants also as he never wanted to discriminate against them as a policy matter. It appears that out of around 334 cases only 90 cases remain because they are satisfied after taking 25% on account and there is solemn hope that he would be able to pay them later on. 6. It remains to be noted that no action is taken for seeking restoration and setting aside the exparte decrees. The court feels that if the suit was really time barred then it would have been an effective ground which would have been available for making an application for serving as an exparte decree. The fact is that neither the application is made nor the decree is challenged by preferring First Appeal till date and only an execution application is sought to CRA/244/2006 11/13 JUDGMENT be resisted on spacious pleas. 6.1 So far as the ground with regard to nullity is concerned, this Court is of the view that the decree cannot be said to be nullity in view of the fact that the point of nullity or suit being time barred ought to have been debated before the appropriate forum and no debtor can be permitted to ignore the decree on his understanding that decree is time barred. The decree drawn by the competent court has to be taken at its original conclusion and complied with unless and until it is set aside by another appellate forum. The ratio laid down by the Apex Court in the case of Tolia is clearly governing the present case and therefore this Court need not elaborate upon this point. 7. This brings this Court to the second ground of statutory ban as one can see from the Rule basically framed for protecting revenue of the State. The State in a public policy cannot say that the Court shall stay the execution proceedings for collecting and/or protecting its revenue. In short the Rule has wrongly been relied upon. Rather it is an attempt to thwart legitimate execution proceedings. Suffice it CRA/244/2006 12/13 JUDGMENT to say that the Executing Court shall bear in mind while issuing process against any property that it is under the charge of income tax department then only the process is not required to be issued against that property but that in itself cannot be said to be a ground for dropping execution proceedings. 8. The aforesaid same reasoning would be applicable so far as the contention regarding charge of IDBI and SBS banks is concerned. In short, the attempt does not seem to be inviting any interference by this Court and therefore this Court is of the considered view that the application deserves to be dismissed with costs. 9. Accordingly, this Civil Revision Application is dismissed with costs. 10. In view of the order passed in the Revision Application, no order is passed in both the Civil Applications. Civil Applications stand disposed of accordingly. (S.R.BRAHMBHATT, J.) CRA/244/2006 13/13 JUDGMENT Divya//