IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.11 of 2010 Date of decision: 9.11.2010 Luharu Ram. …. Petitioner Versus State Bank of Patiala & anr. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes For the petitioner: Mr.Sanjeev Kuthiala, Advocate. For the respondents: Mr.G.C.Gupta, Sr.Advocate with Mr.Ashish Jamalta, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition clearly shows how a clever litigant can manage to delay execution proceedings on one pretext or the other. 2. The decree holder-State Bank of Patiala filed a suit against Ram Nath who was the judgment debtor and Luharu Ram (petitioner) who was the guarantor for recovery of the amount of `.6,64,194/- alongwith interest as agreed between the parties. It would be pertinent to mention here that the petitioner Luharu Ram is the father 2 of the main loanee Ram Nath. A decree for `.6,64,194/- alongwith future interest was passed on 1.11.2003 in favour of the decree holder-Bank and against the judgment debtors. An execution petition was filed in March, 2004 and as on 1.3.2004, an amount of `.8,56,524.75/- was claimed from the judgment debtors. Alongwith this, future interest @ 14.5% per annum with quarterly rests from 1.3.2004 till realisation was also claimed. 3. It would also be pertinent to mention here that the property of the petitioner had been mortgaged with the Bank and in the preliminary decree passed, it had been directed that the amount payable under the decree can be recovered by the sale of the mortgaged property. The Executing Court first ordered the sale of this property on 31.8.2005. Aggrieved by the same, the judgment debtor filed CMPMO No.273 of 2005. All the objections which have now been taken except the objection that the learned Trial Court had no jurisdiction were taken in the said petition. Vide order dated 1.12.205, the execution proceedings were stayed subject to the condition that the petitioner should deposit ` 4 3 lacs. This amount was not deposited and the petition was dismissed. 4. On the second occasion, the petitioner filed CMPMO No.118 of 2007. In this case on 6.6.2007, the execution proceedings were stayed when counsel for the petitioner under instructions from his client submitted that the petitioner is ready and willing to deposit the entire decretal amount on or before 31.12.2007. It was on account of this statement that the stay order was granted. The petitioner did not comply with the statement and the cheque of ` 1 lac issued by him bounced due to insufficiency of funds as is recorded in the order dated 13.7.2007 passed in CMPMO No.118 of 2007. Despite that the petition was not dismissed when the learned counsel for the petitioner assured the Court that the petitioner would comply with the order dated 6.6.2007. Thereafter on 23.7.2007 the petition was rejected and the petitioner was permitted to withdraw the undertaking(s) as recorded in the orders dated 6.6.2007, 13.7.2007, 18.7.2007 and also in his affidavit dated 17.7.2007. Therefore, the amount of `48,000/- deposited by him was appropriated towards the costs which the bank had incurred for putting the property to 4 auction which auction could not materialize. The petitioner was permitted unconditionally to withdraw the petition to approach the bank for settlement. 5. Thereafter the petitioner filed CMPMO No.18 of 2008 laying challenge to the order of the Executing Court whereby the immovable property of the petitioner was again ordered to be put to auction. This petition was rejected by this Court on 8.5.2008 and costs of `.5000/- were assessed upon the petitioner. Despite three petitions having being rejected, the petitioner did not desist and filed another petition being CMPMO 504 of 2008, Annexure P/3 to this petition which was dismissed by a learned Single Judge of this Court and the operative portion of the order reads as follows:- “In the present petition, again the same facts are sought to be agitated. This is the fourth time that the petitioner is before this Court and pleads in equity that his property be saved from the hammer of the auctioneer. Prima facie, the petitioner should have been dismissed in the factual matrix as noticed by me. However, taking a humanitarian view that it may be possible for the petitioner to settle the matter with the Bank this Court had issued notice and stayed further proceedings. I find from the record that the petitioner is a habitual litigant who is intent upon abusing the process of this Court. This is the fourth time before this Court where he is agitating the same grievance over and over again. There is no merit in this petition which is dismissed. Costs assessed 5 at Rs.11,000/- which the petitioner shall pay to the respondent-Bank.” 6. After the disposal of the petition, the petitioner again filed objections before the learned Trial Court. This time, his objections were that since the amount payable under the decree was more than `.10 lacs, therefore, the Executing Court had no jurisdiction to entertain or dispose of the execution proceedings and the matter should be automatically transferred to the Debt Recovery Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the ‘Act’). 7. No doubt, by now the amount payable by the judgment debtor to the decree holder may be more than `.10 lacs. However, the jurisdiction has to be determined not on the date when the amount actually is to be recovered by the sale of property but has to be determined as on the date when the Execution Petition was filed. When the Execution Petition was filed, the amount due was only `.8,56,524.75 plus costs of Rs.5000/- which would be below `10 lacs. 8. Sh,Sanjeev Kuthiala, learned counsel for the petitioner has strenuously urged that the date which is 6 relevant is not the date of the filing of the petition but the date when the amount is actually recovered. I am unable to accept this argument. This argument has no legal basis whatsoever. Reliance placed by Sh.Kuthiala on the judgment of the Apex Court in Punjab National Bank Vs. Chajju Ram and ors. AIR 2000 SC 2671 is totally mis-placed. As far as the second judgment relied upon by Mr.Kuthiala, i.e., Bhanu Construction Co. Pvt. Ltd. Vs. Andhra Bank, Hyderabad and ors., AIR 2001 SC 477 is concerned, in my opinion, this judgment has no relevance whatsoever to the present case because the only question which was decided in this case was, what is the appointed date in terms of the aforesaid Act? 9. Any argument regarding the jurisdiction of the Court must be valid in all fact situations. What is the date which is relevant for the purpose of determining the pecuniary jurisdiction? Obviously, the date is the date when the proceedings are instituted. For example, a Civil Judge (Senior Division) in the State of Himachal Pradesh has jurisdiction to entertain suits upto `.10 lacs. If the suit is for the recovery of `.9.90 lacs, it will have to be filed in that Court. Merely because by the time the suit is decreed, the amount payable is much more will not 7 mean that the Court looses its jurisdiction to decide the matter. 10. Similarly, as far as the Executing Court is concerned, whatever be the amount, normally it is only the Court which passed the decree which has the jurisdiction to execute the same. No doubt, under the provisions of the aforesaid Act and in view of the judgment of the Apex Court in Punjab National Bank case supra, if the amount due is more than `10 lacs, then the matter gets transferred to the Debt Recovery Tribunal. But the relevant date is the date when the Execution Petition was filed. Otherwise, it will lead to an absurd situation where if the judgment debtor manages to delay the proceedings like in the present case on one pretext or the other, he can claim that the amount payable has become more than 10 lacs and, therefore, should be transferred to the Debt Recovery Tribunal. This argument would negate all known canons of the justice. 11. Here is a case where we are dealing with a litigant who time and again has been approaching the Court for delaying the proceedings on one pretext or the other. He gives a undertaking to the Court that he will deposit a particular amount and obtains stay order but 8 does not deposit the amount. His petition is dismissed. He files a second petition and again obtains stay by making a false statement. He issues a cheque which bounces and the second petition is dismissed. On the third occasion, the petition is dismissed since the same objections have been raised and costs are imposed. The petitioner does not stop there. He files fresh objections and fourth petition. This time, the Court makes observations against the petitioner which have been quoted hereinabove and costs of Rs.11,000/- were imposed. These costs are not paid but the petitioner has the gall to file fresh objections, most of which are identical to those earlier rejected but he raises a new plea that since the amount now payable under the decree is more than `10 lacs, it should be transferred to the Debt Recovery Tribunal. It would be pertinent to mention here that such an objection was raised in CMP No.118 of 2007 but was either not pressed or not decided by the Court at that stage. Be that as it may, I am of the considered view that the relevant date is the date when the petition was filed and there is no manner of doubt that on that date, the amount due was much less than 10 lacs. The 9 petitioner has now again approached this Court. One admires the tenacity and temerity of the petitioner but our judicial system cannot survive if persons like the petitioner are permitted to waste the time of the Court time and again on frivolous pleas. Can a party be permitted to file objections in driblets? The answer is obviously no. Whatever objections have to be raised should have been raised at the first instance. A party cannot be permitted to come time and again, re- agitate the same matters and waste the precious time of the Court which can be used much better in dealing with other cases. Therefore, this petition is dismissed with exemplary costs assessed at Rs.50,000/-. It is further directed that the petitioner shall be debarred from filing any objections before the Executing Court and no objections filed by him shall be entertained. The petition is dismissed in the aforesaid terms. November 9, 2010 ( Deepak Gupta ) (m) Judge 10