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Gokul Prasad v/s State Of Bihar

    Decided On, 30 January 2008

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD & THE HONOURABLE MR. JUSTICE MIHIR KUMAR JHA

    For the Appearing Parties: K.D. Chatterji, Parul Rajan, V.K. Tripathi, Chitranjan Sinha, Umesh Lal Verma, Advocates.



Judgment Text

(1.) FREE-HOLD land measuring 1328 sq. ft. With building thereon including the business, which was being run in the name and style of M/s. Vivek Printing Press, shahganj in the town of Patna, originally belonged to a partnership firm, of which the writ petitioner Gokul Prasad was one of the partners. Said partnership firm fell in arrears and action was taken under s. 29 of the State Financial Corporation Act, 1951. Writ petitioner purchased the property in an auction sale by the Bihar State financial Corporation, hereinafter referred to as 'the Corporation' at a price which was outstanding against the partnership firm. The outstanding dues against the partnership firm were in the vicinity of Rs. 3 lacs. Writ petitioner got exclusive possession of the property in the year 1991. He deposited rs. 80. 000/ Rs. 27. 000/- and Rs. 40. 000/-total amounting to Rs. 1,47,000/- in the year 1991, 1994 and 1996 respectively, but thereafter did not deposit any amount and thus, fell in arrears.

(2.) THE Corporation issued advertisement, which was published in the Newspaper 'hindustan Times' in its issue dated 11th of december, 2002. According to the advertisement in pursuance of the recovery action initiated under S. 29 of the State Financial corporation Act, hereinafter referred to as 'the Act,' the Corporation had received the offer for sale of the assets of the writ petitioner for Rs. 8. 25 lacs. The Corporation invited the offer from interested parties to purchase the assets on substantially better price along with earnest money. The offers received in pursuance of the aforesaid advertisement were not to the satisfaction of the Corporation and as such, no sale was made in pursuance thereof.

(3.) THE Corporation negotiated with the prospective pu

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rchasers, namely, respondent nos. 4 to 8, who agreed to purchase assets for a total sum of Rs. 8. 25 lacs. They deposited the entire amount In one instalment. Ultimately the Corporation took over the mortgaged/hypothecated assets by order contained in memo dated 25-9-2007 and handed over the possession of the mortgaged/hypothecated assets to them.

(4.) WRIT petitioner challenged the said order by filing the writ application. A learned single Judge of this Court, by order dated 13-9-2005 passed in C. W. J. C. No. 11333 of 2003 (Gokul Prasad v. State of Bihar and Ors), quashed the order dated 25-9-2003 and while doing so, it observed that the petitioner did not get 21 days clear notice to retain the property on matching terms. The learned single Judge also took notice of the plea of the writ petitioner that he became a defaulter for the circumstances beyond his control but he is now in a position to repay the entire dues to the Corporation with up-to-date interest in single instalment. In the opinion of the learned single Judge, the property being capable of fetching a much higher amount than the amount paid by the purchaser, deemed expedient to give to the writ petitioner one more opportunity to retain the property. This Court, accordingly, directed the Corporation to supply to the writ petitioner his entire dues with interest calculated as on 30-11-2005. This Court further directed that on deposit of the aforesaid amount along with a further sum of rs. 50,000/- by 30-11-2005, the Corporation shall refund to the purchasers the amount so deposited and on such payment, the purchasers shall handover the possession of the property to the Corporation within a stipulated time, which in turn, shall handover its possession to the writ petitioner.

(5.) THE Corporation, aggrieved by the finding of the learned single Judge that no valid notice under S. 29 of the Act was given to the petitioner, has preferred appeal under cl. X of the Letters Patent, which has been registered as L. P. A. No. 1258 of 2005 (The bihar State Financial Corporation v. Gokul Prasad and Ors.)

(6.) WRIT petitioner, aggrieved by the order by which restoration of possession of the mortgaged assets on deposit of an amount of Rs. 8. 25 lacs was directed, has also preferred appeal under Cl. X of the Letters Patent.

(7.) BOTH the appeals have been heard together and are being disposed of by this common judgment.

(8.) BEFORE I advert to the submission advanced on behalf of the writ petitioner-appellant, it is relevant here to state that he filed M. J. C. No. 3182 of 2005 (Gokul Prasad v. State of Bihar and Ors) for extending the time to deposit the dues for further period of six months from 30-11 -2005. Said prayer was rejected by order dated 20-4-2006.

(9.) MR. Umesh Lal Verma, learned counsel appearing on behalf of the writ petitioner-appellant, submits that the learned single judge having held the notice under S. 29 of the Act to be invalid, ought not to have put condition for restoration of possession.

(10.) MR. K. D. Chatterjee, learned counsel appearing on behalf of the Corporation as also Mr. Chitranjan Sinha, Senior Advocate appearing on behalf of the purchasers, however, contend that the learned single judge directed for restoration of possession on the writ petitioner's undertaking that it shall pay the dues in one instalment within the stipulated time. In fact, he filed application for getting time to deposit the dues but having failed to get the time to deposit, cannot be allowed to assail that portion of the judgment. In support of the submission, reliance has been placed on a judgment of the supreme Court in the case of Kumud Kumar v. Central Bank of India (2000) 9 SCC 244: air 2000 SC 3552.

(11.) HAVING considered the rival submission, i am of the opinion that in the peculiar facts of the present case, the appellant cannot be permitted to assail that portion of the judgment. Writ petitioner-appellant offered before the learned single Judge that he shall pay the amount and at his offer, the learned single Judge thought it appropriate to give him one more opportunity. Relevant portion of the judgment of the learned single Judge in this regard is reproduced below:

"11. There is yet another aspect of the matter. It is submitted on behalf of the petitioner that he became a defaulter for circumstances beyond his control, but is now in a position to repay the entire dues to the corporation as on the date of the final payment with up to date interest in single instalment. In view of the location of the property situate in a very busy commercial market of Patna, the property is capable of fetching a much higher amount than the sum of rs. 8. 25 lacs for which the same has been sold to respondent No. 4. The petitioner's offer will now bring to the Corporation a much higher amount than Rs. 8. 25 lacs. In that view of the matter, I should rather think that it would be appropriate if the petitioner is given one more opportunity. "

"12. Let the Corporation supply to the petitioner within a period of two weeks the entire dues against him with interest calculated as on 31-11-2005 along with a further sum of Rs. 50,000. 00. On deposit of the same with the Corporation, the petitioner shall be entitled to recover possession of the property in question. The Corporation shall refund the sum of Rs. 8. 25 lacs plus the said sum of Rs. 50,000. 00 to respondent No. 4 and the latter shall be obliged to hand over possession of the property to the Corporation within a period of one week of receipt of rs. 8. 75 lacs which shall, in its turn, be handed over to the present petitioner forthwith. It will, however, be open to the petitioner to deposit the entire dues in instalments up to 31-11-2005. On the petitioner's failure to carry out the terms of this order, it goes without saying that he shall not get possession of the said property, the Corporation shall forfeit the entire amount deposited by him hereinafter, and he shall also render himself personally liable for violating the orders of this Court in contempt jurisdiction. "

(12.) AS a matter of fact, the appellant-writ petition had accepted the aforementioned judgment including the directions as quoted above from paragraph Nos. 11 and 12 of the impugned judgment. This fact has been brought to the notice of this Court by the counsel appearing on behalf of respondents 4 to 8 who with reference to the material on record in MJC No. 3182 of 2005 submitted that both in terms of the subsequent events as also on account of appellant-writ petitioner accepting the judgment is now stopped from assailing the impugned judgment of the learned single Judge. In this context, Mr. Chitranjan Sinha, learned senior advocate appearing on behalf of respondents 4 to 8 has submitted that the direction as quoted above while allowing the writ petition of the appellant-writ petitioner was passed on 30-9-2005 and in terms of the direction of this Court given by the learned single Judge, the Bihar State Finance Corporation by its communication, dated 17-9-2005/20-10-2005 had also intimated the writ petitioner the amount of Rs. 17,94,433/-to be the amount payable to the Bihar State finance Corporation in addition to a sum of rs. 50,000. 00 as was directed by the learned single Judge. Mr. Sinha in fact had submitted that the appellant-writ petitioner on 14-11-2005 had made a request to the Bihar state Finance Corporation to make available the calculation sheet and to revise the demand so that necessary arrangement for payment could be made by him within the time fixed under the impugned order of the learned single Judge. As a matter of fact, in the submission of Mr. Sinha the letter of the appellant-writ petitioner, dated 27-11-2005 requesting the Bihar State Finance Corporation to give correct calculation sheet so that payment could be made by him in compliance of the order of the learned single judge impugned in this appeal by 30-11-2005 completely seals the fate of this appeal preferred by the appellant-writ petitioner as he had acquiesced to the order of the learned single Judge.

(13.) HAVING examined the materials on record, I am of the view that on account of subsequent events, this appeal has to be dismissed. As noted above, the direction given by the learned single Judge impugned in this appeal, dated 30-9-2005 in fact was first accepted without any demur or protest by the appellant-writ petitioner as is also apparent from his own pleadings in an application filed in this Court on 1-12-2005 seeking to get the impugned order modified only in respect of the extension of time limit. It has to be noted that the appellant-writ petitioner after requesting the Bihar State finance Corporation to give a correct calculation sheet of the dues amount as directed in the order of the learned single Judge in paragraph No. 12 quoted above, had filed an application, being MJC No. 3182 of 2005 on 1-12-2005 whose paragraph Nos. 5 to 10 along with the relief portion are relevant for the purposes of the views that I am going to take that this appeal has to be dismissed on account of the subsequent events. From paragraph Nos. 5 to 10 along with the relief portion in that MJC No. 3182 of 2005 reads as follows :-

"5. That in the light of the order dated 13-9-2005 passed in C. W. J. C. No. 11333/ 05 (Gokul Prasad v. State of Bihar and others) the Branch Manager, bihar State Financial Corporation has given a vague dues calculation letter up to 30-11-2005 vide Ref. No. 629 dated 20-10-2005 of Rs. 17,94,433. 89 excluding the Rs. 50000/- as ordered by the Hon'ble High Court to the petitioner. Photocopy of the chart vide letter No. 629 dt. 20-10-2005 is being annexed herewith and marked as Annexure-2 to this petition. 6. That it is respectfully submitted that the dues calculation letter given by the branch Manager, Bihar State Financial corporation is too vague and amount is so huge that cannot be managed and deposited by petitioner by 31 -11 -2005 to the Corporation. 7. That it is submitted that in the interest of justice and considered the position of the petitioner and such a huge amount the time granted by the Hon'ble High Court be extended for a suitable period so that the petitioner may be able to deposit the dues of the Corporation. 8. That the property in question is only source of livelihood of the petitioner. 9. That petitioner shall suffer irreparable loss and injury and debarred from the fruits of the order of this Hon'ble Court if the date of deposition of dues dated 31-11-2005 be not extended for a suitable time to deposit the entire dues of the Corporation. 10. That in the facts and circumstances of the case the date of deposition of dues dated 31-11 -2005 be extended at last for further period of six months so that the petitioner may able to deposit such a huge amount. It is therefore, prayed that your Lordships be graciously pleased to extend the date of deposit the dues dt. 31-11-2005 further period of six months and pass such other order or orders as deem fit and proper. And for this petitioner shall ever pray. "

(14.) IT has to be noted that the said application was heard by the learned single Judge and the same was dismissed by an order dated, 20-4-2006 wherein he had held as follows :-

"heard Mr. Umesh Lal Verma for the petitioner, and Mr. Vinay Krishna Tripathy, learned counsel for opposite party Nos. 2 and 3 (Bihar State Financial Corporation), which was disposed of by order dated 13-9-2005 (Annexure 1), whereby the present petitioner was directed to deposit the amount indicated therein on or before 3-11-2005 where after he will be entitled to recover possession of the property in question. The petitioner prays that he has not been able to arrange the money and, therefore, the time granted by that order may be suitably extended. 2. Learned counsel for the Corporation opposes this application and submits that it is not a bona fide submission. He has not deposited any amount at all since the date of the order. He further submits that the petitioner is trying to create his defence in the Corporation's contempt application filed with respect to non-compliance of the said order dated 13-9-2005 (Annexure-1). 3. On perusal of the materials on record and consideration of submissions of learned counsel for the parties, I am not inclined to extend the time granted by the said order. Two and half months was adequate time to make the deposits. No amount at all has been deposited till date. 4. This application is accordingly rejected".

(15.) IN fact, the present appeal by the appellant-writ petitioner came to be filed only after the dismissal of MJC No. 3182 of 2005 but not a word was said in the memo of appeal as with regard to subsequent event which in my opinion had rendered the appeal fit to be dismissed. In fact in the appeal in hand when the writ petitioner had prayed for setting aside part of the order, he definitely intends to get the paragraph Nos. 11 and 12 of the judgment set aside because all other paragraphs with the findings therein are in favour of the appellant-writ petitioner whose writ application in fact was allowed by the learned single Judge by the impugned judgment. Therefore, when the appellant-writ petitioner had already accepted the order and wanted only extension of time and if the learned single Judge considering the earlier offer of the appellant-writ petitioner as recorded in paragraph No. 11 of the impugned judgment already quoted above had held that the appellant-writ petitioner was not acting bona fide and his application for extension of time was wholly misdirected, that part of the order passed on 20-4-2006 in MJC No. 3182 of 2005 cannot be indirectly assailed by the appellant-writ petitioner. In my opinion, on account of the subsequent events, this appeal deserves to be dismissed as the appellant-writ petitioner cannot be permitted to wriggle out of the doctrine of acquiescence which is based on the concept of equity, good conscience and justice. The view which I have taken is supported by the judgment of the Supreme court in the case of Kumud Kumar (supra)where it was held that after the appellant had acquiesced to the order of the High court, he could not be allowed to avail the two remedies simultaneously. Here also, once the appellant-writ petitioner had accepted the order of the learned single Judge impugned in this appeal unconditionally and had in fact filed an application after expiry of the time limit on 30-11-2005 seeking further extension of time to comply with the order. In my view he could not have filed and maintained this appeal.

(16.) IN the face of the aforementioned facts, I am of the opinion that the appellant-writ petitioner cannot be allowed to change the stand after dismissal of MJC No. 3182 of 2005 and assail the condition which has been imposed in the impugned judgment for restoration of his assets. In fact, he had obtained this order on the basis of his own offer as is clearly recorded in paragraph No. 11 of the impugned judgment and, therefore, the appellant-writ petitioner cannot be permitted to approbate and reprobate with regard to those very condition firstly by filing mjc No. 3182 of 2005 and requesting only for extension of time limit and upon its dismissal, moving this Court in appeal against those very terms and conditions.

(17.) ACCORDINGLY, I am not inclined to interfere with the order of the learned single judge in the present appeal filed by the appellant-writ petitioner which must be dismissed.

(18.) IN view of my finding above. Mr. K. D. Chatterjee appearing on behalf of the Corporation states that the question in regard to the validity of the notice under sale order has been rendered academic. In that view of the matter, I am not inclined to go into the merit of the order of the learned single judge in this regard.

(19.) IN the result, L. P. A. No. 393 of 2006 is dismissed and L. P. A. No. 1258 of 2005 is disposed of with the observation aforesaid, but without any order as to cost. Order accordingly
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