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Tilk Rice v. Dgm Union Bank Of India

Tilk Rice
v.
Dgm Union Bank Of India

(High Court Of Orissa)

Writ Petition (Civil) No. 14003 of 2008 | 26-09-2008


B.S. CHAUHAN, C.J:

1. This writ petition reveals as to what extent the litigants have the audacity to abuse the process of the Court without any hesitation as if it is their right to use, abuse or misuse the process of the Court, merely because the forum is readily available.

2. The petitioner-company had taken certain loan from the Union Bank of India. The said loan amount was not repaid, therefore proceedings for recovery of about Rs.3 crores had been initiated against it. Instead of filing appeal, a writ petition being W.P. (C) No. 7654/2008 was filed challenging the notices/orders passed by the opposite parties-bank dated 25.2.2008, ( Annex. 5 ) to this writ petition raising a demand of Rs.2,91,08,200 (Rupees Two crores, ninety one lacs, eight thousand and two hundred) and dated 21.5.2008, ( Annex. 7) to this writ petition, which is a notice under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the “Act”). When the matter was taken up, a statement was made at the Bar admitting the liability but submitted that the petitioner was willing to deposit the entire amount if some breathing time was granted to it and to show its bona fide it was stated that the petitioner was willing to deposit a sum of Rs.30 lakhs immediately. Thus, in view of the submissions made by the learned counsel for the petitioner, the writ petition was disposed of on 5.8.2008 in terms of the following order:

“ This writ petition has been filed raising the grievance that the petitioner has to deposit a sum of Rs.2,91,08,200. He admits liability but it is not possible for him to deposit the entire amount. Learned counsel appearing for the petitioner submits that in case this court gives some order directing the petitioner to deposit a substantial amount the petitioner is willing to deposit the same and in case he moves an application before the opposite parties­ Bank for fixing easy instalments that may be considered.

We have heard the learned counsel for the opposite parties - Bank who assures that in case the petitioner deposits a substantial amount and moves an application it will be considered and decided in accordance with law. However, in case the petitioner does not deposit the substantial amount, the question of considering his application for fixing easy instalment does not arise.

In view of the above, we dispose of this writ petition with a direction that in case the petitioner deposits an amount of Rs.30,00,000 ( Rupees thirty lakh) within a period of two months from today, the opposite parties-Bank shall adjust the entire amount deposited by the petitioner till now and issue a fresh statement of account and then consider his application for fixing minimum three instalments. In case the petitioner does not deposit the said substantial amount the opposite parties­Bank shall be at liberty to proceed against the petitioner in accordance with law.

For a period of ten weeks no coercive measure shall be taken against the petitioner.”

3. The earlier writ petition was filed by one of the Directors of the company, namely, Arjun Kumar Rout. This writ petition has been filed through another Director, namely, Smt. Kamala Rout, who is wife of another Director Shri Arjun Kumar Rout, who filed the earlier writ petition, contending that legal issues had not been agitated in the earlier writ petition, and therefore this petition has been filed for quashing the same notices which were under challenge in the earlier writ petition.

4. Learned counsel for the petitioner is not in a position to satisfy the Court as under what circumstances successive writ petition for the same relief is permissible.

5. The issue of (filing successive writ petition has been considered by the Courts time and again and held that even if the earlier writ petition has been dismissed as withdrawn, Public Policy which is reflected in the principle enshrined in Order 23 rule 1 C.P.C., mandates that successive writ petition cannot be entertained for the same relief. (Vide M/s. Sarguja Transport Service Vs. State Transport Appellate Tribunal & Ors., AIR 1987 SC 88; Ashok Kumar & Ors. Vs. Delhi Development Authority, 1994 (6) SCC 97; and Khacher Singh Vs. State of U.P. & Ors., AIR 1995 All. 338).

6. Even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive Writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2 rule 2 C.P.C. as has been explained, in unambiguous and crystal clear language by the Supreme Court in Commissioner of Income Tax, Bombay Vs. T.P. Kumaran, (1996) 10 SCC 561; Union of India & Ors. Vs. Punnilal & Ors., (1996) 11 SCC 112; . M/s. D. Cawasji & Co. & Ors. Vs. State of Mysore & Anr., AIR 1975 SC 813; Avinash Nagra Vs. Navodaya Vidyalaya Samiti & Ors., (1997) 2 SCC 534; and State of U.P. & Anr. Vs. Labh Chand, AIR 1994 SC 754.

7. In Burn & Co. Vs. Their Employees, AIR 1957 SC 38, the Apex Court has held as under:­

“That would be contrary to the well­recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule of res judicata enacted in Section 11, Civil P.C. is based. That section is, no doubt in terms in application to the present matter, but the principle underlying it, expressed in the maxim “interest rei Publicae ut sit finis litium”, is founded on sound public policy and is of universal application. (Vide Broom’s Legal Maxims, Tenth Edition, page 218). ‘The rule of res judicata is dictated’ observed Sir Lawrence Jenkins C.J. in Sheoparasan Singh Vs. Ramnandan Prasad Narayan Singh, 43 Ind. App. 91: ILR 43 Cal. 694: (AIR 1916 PC 78) (C), by a wisdom which is for all time.”

8. Therefore, in view of the above referred judgments, it is abundantly clear that even if the provisions of the Code of Civil Procedure are not applicable in writ jurisdiction, the principle enshrined therein can be resorted to for the reason that the principles, on which the Code of Civil Procedure is based, are founded on public policy and, therefore, require to be extended and made applicable in writ jurisdiction also in the interest of administration of justice. Any relief not claimed in the earlier writ petition should be deemed to have been abandoned by the petitioner to the extent of the cause of action claimed in the subsequent writ petition and in order to restrain the person from abusing the process of the Court, such an order/course requires not only to be resorted to but to be enforced.

9. In Dr. Buddhi Kota Subbarao Vs. K. Parasaran & Ors., AIR 1996 SC 2687, the Supreme Court has observed as under:­

“No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions.’’

Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.

10. In Tamil Nadu Electricity Board & Ani. Vs. N. Raju Reddiar & Anr. AIR 1997 SC 1005 the Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.

11. In Sabia Khan & ors. Vs. State of U.P. & ors., AIR 1999 SC 2284, the Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.

12. In Abdul Rahman Vs. Prasoni Bai & Anr., (2003) 1 SCC 488, the Supreme Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law.

13. Even otherwise the petitioner has not filed any application to recall the judgment and order dated 5.8.2008 passed by this Court in the earlier writ petition or application for review or modification thereof. No relief has been sought in respect of the earlier judgment, though this writ petition has been filed to nullify the effect of the earlier order altogether. Petitioner had to deposit Rs.30 lakhs within eight weeks from 5.8.2008. No amount has been paid so far, though the period is likely to expire. Thus a novel device seems to have been adopted to buy time.

14. The method adopted by the petitioner to get the earlier order of this Court nullified requires to be deprecated. The conduct of the petitioner for abusing the process of the Court is reprehensible and the petitioner has disentitled itself for any relief before the equity Court.

15. The writ petition is devoid of any merit and is accordingly dismissed.

B. N. MAHAPATRA, J. I agree.

Writ petition dismissed.

Advocates List

For the Appearing Parties B.S. Mohanty, G.C. Rout, Janmejaya Ray, S.C. Mohanty, Advocates.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE CHIEF JUSTICE MR. DR. B. S. CHAUHAN

HON'BLE MR. JUSTICE B. N. MAHAPATRA

Eq Citation

2009 (1) CLR 325

AIR 2009 Ori 26