Madan Mohan Sahu @ Sahoo Vs. Bijay Kumar Sahoo - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - when plaintiff claims exclusive right, title, interest and possession over the suit property the defendant has contested that contention by stating that plaintiff has allowed the joint family consisting of plaintiff, defendant and the eldest son of the plaintiff to enjoy the suit property as part of the joint family property and that in an 'ekrarnama' executed between th. when the trial court failed to exercise the jurisdiction properly to determine the question of possession white passing an order of status quo the appellate court was not precluded to consider that aspect. the lower appellate court, as this court finds, has failed to exercise that jurisdiction properly. the lower appellate court must bear in mind that while adjudicating a dispute of the present nature for interim relief the court is required to be satisfied about existence of a prima facie case and in whose favour balance of convenience lies and whether or not there shall be irreparable loss or injury in the case of grant or refusal of the order of temporary injunction.p.k. tripathy, j.1. petitioner is the plaintiff in title suit no. 46 of 2001 of the court of civil judge (junior division), jajpur road and his youngest son is the sole defendant and opposite party in this revision. the disputed property measures an area of ac. 0.02 decimals appertaining to c.s. plot no. 1137 under khata no. 424 equivalent to m.s. plot no. 1014 under m. s. khata no. 546 in mouza khamana. that property was purchased by the plaintiff on 17.3.1956 and it is the admitted position on record that the defendant born thereafter. plaintiff's case of self-acquisition of the suit property was not in dispute by the defendant. when plaintiff claims exclusive right, title, interest and possession over the suit property the defendant has contested that contention by stating that plaintiff has allowed the joint family consisting of plaintiff, defendant and the eldest son of the plaintiff to enjoy the suit property as part of the joint family property and that in an 'ekrarnama' executed between th.e defendant and his elder brother in the year 1997 the business of his father i.e., preparing/manufacturing and selling of 'gundi' (tabacco powder) has fallen to his share (the defendant) and therefore he is in possession of the said premises where a tin shed is there to carry on the work of preparing 'gundi'. it is the case of the plaintiff that the defendant without taking care of him (plaintiff) is trying to dispossess the plaintiff from the suit land. accordingly, in the suit, plaintiff prayed for permanent injunction besides other reliefs and also filed application under order 39 rule 1 and 2 of the code of civil procedure (in short 'the code') for temporary injunction registered as misc. case no. 41 of 2001. learned civil judge (junior division) allowed that application and passed an order directing the parties to maintain status quo. defendant preferred misc. appeal no. 44 of 2001, in the court of additional district judge, jaipur. the appellate court on consideration of the facts pleaded and the position of law involved in the case relating to right to property of members if a joint family recorded the findings that the 'ekrarnama' executed between the two sons of the plaintiff has no binding effect to interfere with the right, title and interest of the plaintiff but when there is assertion by the defendant relating to possession of the suit property by all because of 'gundi' business and when the learned civil judge has not recorded any specific finding as to which party was in possession on the date of institution of the suit, therefore, the order of status quo passed by the court below as meaningless and accordingly he vacated that order.2. it is argued by the petitioner that in the absence of any proof of partition in the joint family constituted by the plaintiff and his two sons and when there is no dispute to the factum of self-acquisition of the suit property by the plaintiff the lower appellate court has gone wrong in vacating the order of status quo inasmuch as law supports a presumption of factum of possession in favour of the plaintiff when there is no convincing evidence regarding dispossession. accordingly, learned counsel for the petitioner argued to restore the order of status quo. learned counsel for the opposite party, on the other hand, argued that the lower appellate court adopting a correct approach to the facts and law to vacate the order of status quo and when the 'ekrarnama' executed between the two sons of the plaintiff prima facie supports the plea of possession in favour of the opposite party, grant of order of injunction or an order of status quo with the resultant effect of dispossession of the defendant is against the interest of justice. accordingly, he prayed to maintain the orders of the appellate court.3. at the outset it must be noted by this court that the criticism by the lower appellate court to the order of status quo passed by learned civil judge (junior division), jajpur road is not incorrect inasmuch as an order of status quo allows the things to be maintained in the same manner as it was on the date of the application/order. thus, unless the court records a specific finding as to what was that state of things relating to which status quo to be maintained, the order of status quo is ambiguous and may lead to confusion. in a case of present nature when plaintiff has sought for order of temporary injunction, it is but necessary for the court deciding that issue to consider and record a finding, though on prima facie appreciation of evidence, as to who is in possession. if such an order is passed then only the order or status quo shall carry meaning.4. the lower appellate court was also a court of fact. when the trial court failed to exercise the jurisdiction properly to determine the question of possession white passing an order of status quo the appellate court was not precluded to consider that aspect. the appellate court should not have only acted in a manner of scrutinising the propriety of the impugned order before it but also to adopt the attitude of adjudicating the dispute relating to temporary relief in accordance with law. the lower appellate court, as this court finds, has failed to exercise that jurisdiction properly. therefore, under the given circumstance two options are available to this court i.e., either to remand the matter for fresh adjudication by the lower appellate court or to pass appropriate order on the basis of the available materials. this court does not feel it proper to go into and determine the factual aspect and therefore directs the lower appellate court to dispose of the case after affording opportunity of hearing to the parties in accordance with law. the conclusion derived by the lower appellate court relating to joint status and effect of the 'ekrarnama' are though not correct but in that respect this court expresses no opinion but allows the lower appellate court to consider the same afresh and strictly in accordance with law. the lower appellate court must bear in mind that while adjudicating a dispute of the present nature for interim relief the court is required to be satisfied about existence of a prima facie case and in whose favour balance of convenience lies and whether or not there shall be irreparable loss or injury in the case of grant or refusal of the order of temporary injunction. in that context, the pleadings of the parties and the documents relied on have to be considered in accordance with law but by taking a prima facie view. it is expected that learned additional district judge, jajpur shall attend to the job appropriately while disposing of the appeal. to save the appeal from further delay in the court below both the parties are directed to appear in that court by 7th july, 2003 and the petitioner shall produce a certified copy of this order in that court and thereafter the appellate court shall hear and dispose of the appeal within a period of two weeks from, that date. in view of the above order, neither party shall be entitled to fresh or further notice from the appellate court and default in appearance by either of the parties be considered accordingly.