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Dena Bank, Surat Vs. Devi Exhibitors, Surat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1323 of 1983
Judge
Reported inAIR1985Guj51; (1984)2GLR1040
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 39, Rule 1
AppellantDena Bank, Surat
RespondentDevi Exhibitors, Surat and ors.
Appellant Advocate R.M.Vin, Adv.
Respondent Advocate D.D. Vyas and; R.N. Shah, Advs.
Cases ReferredLaxmanrao Sahane v. Sanghvi Amritlal Bacharlal
Excerpt:
.....being constructed in area mortgaged with bank - secondly balance of convenience not in favour of bank - other property in mortgage could fetch double the amount for which decree likely to be passed against defendants - granting injunction would put to inconvenience either defendants or persons who made bookings in alleged shroff tower - substantial justice done by subordinate court - no interfere with such order needed merely because case comes within any of three clauses of section 115. - - the argument was that if one looks to the boundaries described in the schedule it would clearly show that to the west there were plot nos. the defendants contended that unless nondh numbers were made clear it could not be suggested from the boundaries as no one clearly could demarcate as to..........of 1983.2. the facts which gave rise to this petition may be stated as under. -dena bank filed a civil suit being regular civil suit no. 554 of 1983 in the court of civil judge(s. d.) at surat. it was a suit for injunction. in fact dena bank had filed two suits previously being special civil suit nos. 197 of 1981 and 198 of 1981 to recover certain amounts which according to the bank were due. the total dues according to the bank came to rs.21,00,000/. special civil suit no. 197 of 1981 was for recovering the amount of rs.2,51,88280 with interest and special civil suit no. 198 of 1981 was for recovering the amount of rs. 17.22.998---61 with interest. the interest was claimed at rs. 17%. both the suits were pending during the pendency of those two suits regular civil suit no.554 of 1983.....
Judgment:
ORDER

1. This petition is directed against the order passed by the 2nd Joint Civil Judge (,S/ D) Surat which is confirmed by the Joint Judge, Surat in Miscellaneous Civil Appeal No. 89 of 1983.

2. The facts which gave rise to this petition may be stated as under. -

Dena Bank filed a civil suit being Regular Civil suit No. 554 of 1983 in the Court of Civil Judge(S. D.) at Surat. It was a suit for injunction. In fact Dena Bank had filed two suits previously being Special Civil suit Nos. 197 of 1981 and 198 of 1981 to recover certain amounts which according to the Bank were due. The total dues according to the Bank came to Rs.21,00,000/. Special civil suit No. 197 of 1981 was for recovering the amount of Rs.2,51,88280 with interest and special Civil suit No. 198 of 1981 was for recovering the amount of Rs. 17.22.998---61 with interest. The interest was claimed at Rs. 17%. Both the suits were pending During the pendency of those two suits Regular civil suit No.554 of 1983 was filed for obtaining permanent in junction and the injunction prayed for was that the defendants may be restrained from constructing shroff towers and further injunction asked for was to the effect that no booking for any shop or office may be made in shroff towers for the purpose of transferring any part of the building which was to be constructed and to be named as Shroff Towers. For the purpose of obtaining ad interim injunction in that suit application exh. 5 , was given and the prayer was to grant interim injunction during the pendency of the suit. The ground was that for the purpose of advancing the money the properties belonging to defendants were mortgaged to the bank and for that purpose the mortgage document was prepared. The mortgaged property was described in the mortgage deed. Full description was given of the property in schedule 'A'. The dispute between the parties centered round the fact as to whether Shroff towers were being constructed in the mortgaged property. The contention of the defendants was that Shroff towers were being constructed in the property which was open space belonging to the defendants and adjacent to the mortgaged property and situated to the west of it While the contention of the bank was that the open space was part of the mortgaged property. An effort was made to produce the-certified copy of the map prepared by the Survey Department and thereafter an effort was also made to show to the Judge the original of the drawings by issuance of the summons and after showing the original, copy was put in The dispute continued inasmuch as there was some discrepancy in regard to the Nondh number mentioned in the plaint where one of the Nondh numbers differed when read with the schedule. The argument was that if one looks to the boundaries described in the schedule it would clearly show that to the west there were plot nos. 34 and 41 and. therefore, the Shroff towers were included as part of the mortgaged property. The defendants contended that unless nondh numbers were made clear it could not be suggested from the boundaries as no one clearly could demarcate as to from what exact place plot no. 34 or plot no.41 would begin. Ultimately Civil Judge(S. D) came to the conclusion that it is doubtful as to whether the property on which the Shroff towers were being constructed was part of the mortgaged property or not. The second question which was considered was that there was a cinema building known as Kinnari theatre and affidavit was filed before Civil Judge, Senior Division wherein it was stated that Kinnari theater or cinema building -was (if much higher value and even half the amount would be sufficient for paying the debts if any, to Dena Bank and. therefore. it was not necessary to grant any injunction. Now these arguments were accepted by Civil Judge (S. D.) and also by Joint District Judge. The result was that ad interim injunction application was rejected and the appeal was dismissed Thereafter this Revision Application has been filed in this Court.

3. The learned advocate Shri Vin who appeared on behalf of the Bank showed me the map and strenuousIv urged that the property on which the Stiroff towers were being constructed was part of the mortgaged property and that there was a gross error committed by two Courts when they came to the conclusion that this position was doubtful It was thereafter submitted that if Shroff towers are constructed and the offices and shops are allotted to different persons it would be difficult to sell the mortgaged property for realization of the dues of the bank and multiplicity of legal proceedings would arise and. Therefore the defendants must be restrained from transferring any part of the mortgaged property. It was made clear that injunction in regard to construction of Shroff towers was not pressed. However, what was pressed was that Shroff towers may be constructed but no part of the Shroff towers as office shop or in any manner maybe booked or transferred in any manner whatsoever to any person. The question which the two Courts considered was as to whether such an injunction was necessary and where did balance of convenience lie? The Civil Judge. Senior Division and also the Joint District Judge came to the conclusion that as Kinnari theatre was sufficient for realizing,, the dues of the Bank the balance of convenience was in favour of the defendant-, The reason was that if after spending considerable amounts the shroff towers are constructed and they were kept vacant the defendants would be put to a great loss while the bank was secured because Kinnari theatre was a valuable property which could satisfy the due of the banks. The learned advocate Shri Vin to support his contention that there was jurisdictional error drew my attention to three cases.

4. The first case is the case of Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi reported in : AIR1959SC492 . There it was held that if the court assumes jurisdiction by erroneous decision of jurisdictional fact the High Court is required to interfere under S. 115 of the civil P. C. It was field that if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out. It was a case under Houses and Rents U. P. I Temporary) control of Rent and Eviction Act It was observed as under-

'Under S.5(4) of the U.P. (Temporary) Control of Rent and Eviction Act, the landlords' right of suit was restricted to challenging the inadequacy of the reasonable annual rent but he could not sue for varying the agreed rent Where the landlord brought his suit on the ground of inadequacy of the reasonable rent as determined under S.3. A, its maintainability depended on the determination of the jurisdictional fact i.e. date of its construction. Whether it was before or after June 30, 1946 on the decision of which would depend his right to bring the suit: because if there was no new construction. the agreed rent would be operative and the landlord would have no right of suit under S. 5(4) of the Act Consequently, by wrongly deciding this question the trial court would be entertaining a suit by the landlord for enhancement of the agreed rent and thereby assuming jurisdiction it did not possess. In such a case the High Court had power to interfere and once it had the power it could determine whether the question of the date of construct ion was rightly, or wrongly decided.'

5. Second case to which my attention was drawn was the case of Roshanlal Mehra v. Ishwar Dass reported ill AIR 1902 SC646. It was a Case under Houses and Rents- Delhi and Ajmer Merwara Rent Control Act 1 19 of 1947). There it was held as under ---

'Whether the premises in question were newly constructed or not is really a question of fact though undoubtedly jurisdictional fact on which depends the power of the Rent controller to take action under S.7A. It' the Rent Controller decides wrongly the fact and assumes Jurisdiction where he has none the matter would lie open it) reconsideration in revision........'

6. The third case was the case of Rajnikant, Jeshingbilai Sheth V, Rameshchandra kantilal Bhatt reported in : AIR1982Guj85 . It was a case under the Bombay Rents Hotel & Lodging House Rates Control Act, (,.Net LN 11 of 1,94-1. In that case it was observed as under,

'The High Court can in exercise of its revisional powers under S. 115 of the Civil P.C. interfere only if the order of the subordinate Court is assailed on a question of jurisdiction namely the illegal assumption of jurisdiction not vested in it or the legal refusal to exercise jurisdiction vested in it by law or the exercise of the jurisdiction illegally or with material irregularity. The High Court has no jurisdiction under S. 115 of the code to correct errors of fact and law however gross they may lie. In the present case, however, on the ,crucial question as to the apportionment of rise in land value where additional floors have been superimposed on an existing building at intervals both the Courts below Misdirected themselves in the exercise of their jurisdiction by totally omitting to apply the correct principle and allow a reasonable return on the increase in the value of the land during, the interregnum Similarly, the Bench of the Court of small Causes in the exercise of its revisional jurisdiction. under the Act wholly ignored the fact that the landlord is entitled to an allowance by way of outgoings for vacancies bad debts, obsolescence , depreciation and sinking fund. So also in determining the return on the cost of construction it totally ignored the material fact that after December.1956 the rate of interest on gilt-Edged securities and the Bank rate had steadily increased. Therefore, this is a case in which in the exercise of its jurisdiction the lower Court acted with material irregularity in ignoring or overlooking the evidence on Poring or over record its to the rise in land value to which the landlords were entitled under law so far as the construction of the tipper floors is concerned and in totally refusing, to allow anything by way of outgoings after accepting the principle that the landlords Would be entitled to a certain percentage on the cost of construction by way of outgoings, so far as the refusal to allow outgoings is concerned, it appears to he an error apparent on the face of the record. So also the lower Court totally overlooked the fact that the bank rate and return on gilt edged securities had increased after December. 1958 and, the landlords were, therefore entitled to a proportionate Increase in the return on the cost of construction.

Now therefore all the three cases stated above are the cases where the Courts had assumed jurisdiction by looking or overlooking certain facts which had bearing on the jurisdiction of the Court. Certain facts which Could give the Court jurisdiction to decide the matter were overlooked in the first two cases and in the third case certain facts were totally ignored. Now in this particular case on the basis of the above three rulings it was tried to suggest that it was totally overlooked that the mortgaged property was the property which was required to be sold because two Suits were filed for the purpose of realizing the money selling, the mortgaged property. Ultimately when the decrees at passed the mortgaged property would be required, to be sold and, therefore, if tile property over which the Shroff towers were being constructed is in possession of' some third parties a difficult situation would arise and the multiplicity Of proceedings and litigation Would ensue and this eventuality is overlooked and therefore the Jurisdictional fact is overlooked in deciding the matter.

7. Now I may say that the two Courts came to the conclusion that the circumstances that Shroff towers are being constructed on the mortgaged property is of a doubtful character. Now this would N, an appreciation of evidence which was brought on record. On reappreciating that evidence it is quite likely that one may come to the same conclusion or to a different conclusion. So this aspect was overlooked it is not possible to say. The second aspect of the case is that whenever it decree is passed and in execution of the decree the property is required to be sold and that Property is it large property which property for the purpose realising the decretal amount is not necessarily required to, be sold in one lot because on1y few, buyers would come the properties are required to lie sold in lot, Now, therefore in this particular case if Dena Bank gets it decree and first Kinnari theatre is put to auction the amount realised would be more than sufficient and. therefore, the question of selling their remaining properties would never arise. Therefore while considering the balance of convenience these facts are also taken into consideration and it is more than clear that substantial justice is done. It is fried to be seen that ultimately whenever the decree is passed in favour of Dena Bank they will be able to get the amounts by auction or putting to sale the Kinnari theatre. It is also tried to lie seen that the defendants who are investing large amounts in constructing towers may, not lie blocked in such a way that though they may spend large amounts in construction the whole construction remains, vacant and they are not able to book any shop or office. Normally when the booking is made and construction is carried out it is partly with the money of the owner and partly with the money of the person to whom the premises are required to be allotted. The difficulty would riot be only to the defendants bill to many others. As Kinnarli theatre is the propCr1v worth at least double the amount considering the amount for which the degree is likely to be passed it would be hardly necessary to put to inconvenience either the defendants or the persons in whose favour the bookings are made. The two Court s' therefore. it cannot be suggested overlooked any Circumstances which in existence on the papers before the Court. This Court in the case of vasantrao Laxmanrao Sahane v. Sanghvi Amritlal Bacharlal reported in (1966) 7 Guj L.R840 observed as under. This decision was rendered by Justice P. N.Bhagwati (as he then was).

'The High court is not bound it, interfere in revision under S. 115. Civil P. C. in all cases in which it is found that the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of jurisdiction. The High Court will exercise its revisional powers only in aid of justice and not merely to give effect to it technicality which would not further the ends of justice. When the High Court finds that substantial justice has been done between the parties by the order of the subordinate court the High Court will not interfere with such order merely because the case comes within any of the three clauses of S. 115'.

Though I find in this particular case that the case does not fall in any of the clauses of S. 115, C. P. C., even if it fell in any of the clauses as suggested by tile learned advocate Shri vin it is clear that the two Courts have tried to do substantial Justice to the parties.

8. Reference is also required to lie made to a case of Managing Director (MIG), Hindustan Aeronautics Ltd. Balanagar, Hyderabad V. Ajit Prasad Tarwav, reported in : (1972)ILLJ170SC where the Supreme Court in para 5 had observed as under.

'5.In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion Of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong may be in accordance with law, but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either legally or with material irregularity. That being so the High Court could not have invoked its jurisdiction under S. 115 of the Civil P.C.

Now therefore the first question is whether the case would fall under S. 115 and the second question that is required to be answered is that even if it falls in one of the three clauses whether it is a case for interference. The answers would be negative. Firstly the case does not fall under S. 115 C. P.C. Even if it fell under any of the three clauses as substantial Justice has been done between the parties and the bank is not going to loose any amount if the decree is passed no interference is called for.

9. I may here state one more fact which though not very important yet it is required to he stated is that when the Bank chose to file the suit in the year 1981 for it least one and half Years, they did not think of praying for any injunction. Ultimately they filed another suit in the year 1983 for obtaining, an injunction. The case of the defendants is that as they had appeared in those two suits they would have thought that they would not be able to obtain ex parte order and therefore, filed another suit for permanent injunction and in that suit an ex parte order was obtained which ultimately was not confirmed. I am not concerned with the manner in which the bank chose to carry out litigation. The bank had right to file suit even for permanent injunction at any time it chose. The suit was maintainable. 'The application was also maintainable. It was, therefore, required to be decided in accordance with law. The two Courts ultimately decided application and they came to the conclusion that there was no prima facie case. Firstly because it was doubtful as to whether Shroff towers were being constructed in an area which was mortgaged secondly the balance of convenience was not in favour of the Bank. Now these are findings of fact and the High Court need not interfere with these findings of fact in a revision application.

10. The result is that the petition is dismissed The Civil Judge (S. D.) should decide two special Civil suits expeditiously. There will be no order as to costs. Rule is discharged Interim relief is vacated.

11. Petition dismissed.


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