Bank of Rajasthan Ltd. Vs. Krishan Printers and ors. - Court Judgment

Prakash Tatia, J.

1. Heard learned counsel for the parties.

2. The brief facts of the case are that the petitioner Bank filed a suit for recovery of the advanced amount against the principal borrowers and against the guarantor, who is non- petitioner No. 5 in this revision petition. Since the suit was for recovery of the money from borrowers as well as for recovery of the money by sale of the mortgaged property, therefore, the trial court passed the preliminary decree on 28.3.1992 for Rs. 1,01,740.20. So far as determination of the liabilities of the principal borrowers and the guarantor, is concerned, stand concluded by the decree dated 28.3.1992. Since the principal borrowers failed to make payment of the decretal amount, therefore, application was submitted by the petitioner Bank for passing final decree so that the amount may be recovered by sale of the mortgaged property upon which the trial court passed the final decree on 23.2.1994 holding that since the principal borrowers have failed to make payment of the decretal amount within the time granted by the trial court, therefore, the plaintiff is entitled to recover the amount by sale of the mortgaged property.

3. The decree-holder submitted the execution petition without any delay, which appears to be filed in the year 1994. In the execution petition, an objection was submitted by the non- petitioner No. 5 guarantor, by filing an application under Section 151 CPC pointing out that the principal borrowers have sufficient means and property to pay the decretal amount, therefore, first the decree-holder should proceed against the principal borrowers and recover the amount and in case the decree-holder is unable to recover any amount from the principal borrowers or able to recover amount shorter than the decretal amount from the principal borrowers, then and then only, the decree-holder can proceed against the property mortgaged with the bank in security to repayment of the loan advanced to the principal borrowers. The executing court, by order dated 26.5.1995, allowed the application of the guarantor non-petitioner No. 5 holding that the decree-holder can first proceed against the judgment-debtors non- petitioners debtors No. 1 to 4 who are principal debtors and in case the decree-holder fails to recover amount from the non- petitioners Nos. 1 to 4, then the decree-holder may proceed against the judgment-debtor No. 5 who is non-petitioner No. 5 in this revision petition.

4. Being aggrieved against the order dated 26.5.1995, the petitioner preferred this revision petition before this Court on 9.8.1995. This court passed the order on 10.11.1995 for issuing notice to the non-petitioners to show cause why the revision petition may not be heard and disposed of at admission stage. The revision petition remained pending before this Court and ultimately on 17.4.2000, this Court ordered as under:-

'At this stage, it is not proper to dispense with the service of respondent No. 1 to 4. If the respondent No. 1 to 4 have no property then petitioner should proceed against respondent No. 2 and 3 who are principal borrower under Order 21 Rule 37 for detention in civil imprisonment and report to this court, out come of detention in civil imprisonment then alone matter be proceeded further.'

5. The case thereafter was taken up on 15.7.2003 and this court invited attention of the learned counsel for the petitioner bank towards the order dated 17.4.2000 and the learned counsel for the petitioner was directed to submit the information about the steps taken by the petitioner bank for recovery of the amount from the principal borrowers. Learned counsel for the petitioner informed that the petitioner Bank proceeded against the principal borrowers by moving an application for principal borrowers' detention in civil imprisonment. This application was filed after delay of more than a year from this court's order dated 17.4.2000 on 14.8.2001 which could have done by the petitioner bank without order dated 17.4.2000 of this Court. This court observed that this clearly shown the little interest shown by the petitioner bank in proceeding against the principal borrowers. However, on 15.7.2003, learned counsel Shri B.V. Thanvi appeared on behalf of the principal borrowers and submitted that some fund in likely to be come into the hands of one of the principal borrowers. This found is to come in the hands of one of the principal borrowers as one Shri K.K. Paliwal expired and benefits out of his service rendered with the employer were likely to be given to the one of the principal borrowers. It was stated that after the receipt of the said fund, the principal borrowers will try to settle the matter after negotiation with the bank and will discharge their liabilities.

6. This willingness of the principal borrowers stand belied as the case was listed in court on 18.8.2003 after one month but till then only efforts made by the principal borrowers and disclosed in the court by the learned counsel for the principal borrowers were that the principal borrowers approached the petitioner bank's manager once for settlement. Neither any proposal was submitted nor any proposal was under consideration of the bank. It was also pointed out by the learned counsel for the principal borrowers that because of certain objections raised by the employer of deceased Shri Paliwal, the amount has not been paid to the principal borrowers and, therefore, now they are proposing to file a writ petition against the employer of Shri Paliwal. This court by order dated 18.8.2003, observed that the parties are not serious about settling the matter, therefore, the revision petition can not be kept pending which is pending since last about 8 years in this court and fixed the date for final disposal. The revision petition was listed in court on 25.8.2003 and 26.8,2003 but adjourned so that progress may be seen by the court. This court directed the learned counsel for the principal borrowers to submit the progress report in settlement between the parties by filing an affidavit. No affidavit has been filed by the principal borrowers. Learned counsel for the petitioner Bank stated that there is no chance of settlement and learned counsel for the borrowers, instead of showing any progress for settlement, tried to submit that revision petition may not be heard as application for sending borrowers to civil jail is pending before the executing court. The prayer of the learned counsel for the borrowers not to hear this revision of the year 1995 in the year 2003, deserves to be rejected in view of the reasons hereinafter mentioned. Therefore, the revision petition is heard on merits.

7. The learned counsel for guarantor non-petitioner No. 5 also, but without vehemence, raised objection about the proceeding of this court to hear this revision petition by taking help of the order dated 17.4.2000 and it is submitted that since no steps in true spirit have be'n taken by the petitioner decree-holder to comply with the order of this court dated 17.4.2000, therefore, this court may decide to proceed as just and proper without saying that the court should not hear this revision petition. Despite pointing out the order dated 17.4.2000, learned counsel for the non-petitioner No. 5 only requested that court may decide its procedure. Though there is a lack of vehemence in the argument but pointing out towards the order dated 17.4.2000 indicates that request was that this court should not proceed to decide this revision petition in view of the order dated 17.4.2000.

8. This preliminary objection raised by the learned counsel for the non-petitioner No. 5 appears to have been raised by ignoring the subsequent orders passed by this Court dated 15.7.2003 and 18.8.2003. In the said two orders, this court has taken note of the action of the petitioner decree-holder of moving the application for detention in civil imprisonment of the principal borrowers though after delay and on 18.8.2003 this court, after taking note of the efforts made by both the parties, passed the order for fixing the matter for final disposal. In view of the above two subsequent two orders, the objection of the learned counsel for the non-petitioner No. 5 has no legs to stand. It will also be worthwhile to mention here that the order dated 17.4.2000 is an order to decide the procedure to be adopted by this court and the procedure cannot give an actionable cause to any of the parties so as to prevent the court from adopting a procedure in the changed circumstances. This court obviously must not have not though that by whatever reason and by change in circumstances, this court will never proceed to hear this revision petition and shall keep the revision pending for ever if the decree-holder did not proceed against the non-petitioners Nos. 2 and 3. It is true that for non-compliance of the direction of this court, the revision petition itself can be dismissed but in a case where decree was obtained by the bank and there is slackness on the part of the bank in recovering the amount by adopting other modes, the effect of the entire decree cannot be nullified in view of the facts which have come on record subsequently and in view of the facts which have come before this court in the arguments of the parties. Learned counsel for the petitioner submitted that whatever efforts (little) were made, but they failed. It has come on record that the amount claimed by the legal representatives of the deceased Shri Paliwal from Shri Paliwal's employer is disputed by the employer and the principal borrowers are proposing to prefer writ petition challenging the action of the employer for getting the money. It is not stated till today that any writ petition has been filed or any order has been passed by the court in the matter about the claim of benefit of one of the principal borrowers. It is stated by the learned counsel for the petitioner bank that after filing the application for detention of principal borrowers in civil imprisonment on 27.8.2001, the petitioner was directed to submit list of properties of the principal borrowers upon which the petitioner bank submitted an affidavit stating therein that the judgment- debtors principal borrowers are not possessing the property from which the decretal amount can be recovered. To counter, learned counsel Shri B.V. Thanvi, appearing on behalf of the principal borrowers, submits that such affidavit has been filed by the decree-. holder petitioner but the counter affidavit has not been filed by the principal borrowers before the executing court.

9. The facts remain are that for the money decree of 1992 for a secured amount and for which final decree was passed by the court in the year 1994, no amount is recovered even in 11 years by the petitioner bank. The fact remains is that there is no dispute with respect to the entitlement of the money of the decree-holder petitioner and liability of the both the sets of the judgments- debtors. No petition can be kept pending by this court for indefinite period if this court decided not to reject the petition.

10. The revision petition filed in the year 1994 pending in the court in the year 2003 are one of the example which compelled the Legislature to think over the matter and amend the Code of Civil Procedure which is apparent from the discussions, aims and objects for amending the Code of Civil Procedure wherein it is said that the record is called in the revisional court or revisions remain pending in the High Court for long period resulting into either staying of the proceedings of the civil court or preventing the civil court from proceeding with the trial. This resulted into making provisions for fixing the time bound program for the trial of the suit. Though the Civil Procedure Code was amended in the year 1999 which was seriously resisted and, therefore, Civil procedure Code was again amended in the year 2002, still unfortunately, the entire Order 21 CPC went unnoticed by the legal luminaries and no steps have been taken to prevent the delays in the execution proceedings by suitably amending the various provisions of Order 21 CPC. The court-fees is paid by the litigants for the 'each relief' and not for getting any dormant sermon in the form of decree to requires life which can be injuncted by execution petition. There is no meaning of the words given in the decrees. They need life from the provisions of Order 21 CPC. There is no effective consequence for non-compliance of the directions contained in the decree passed by the Civil Court. There is no provision in the Code of Civil Procedure requiring judgment-debtor to inform the court that he has complied with the decree/direction of the court and satisfied the decree-holder. The result is that the plaintiff even after paying court-fees for the relief and actual relief gets 'only decree.'

11. In a decree of recovery of money, that too against the secured amount, secured by mortgaging immovable property, the decree-holder could not recover the money for about 11 years and the judgment-debtor has no liability for non-compliance of the decree and they can certainly do so till Order 21 CPC remains as it is. What the decree-holder can do is that they can only recover the amount with interest as awarded by the court and nothing more and judgment-debtor can enjoy the principal amount with accrued interest till he can prolong the execution proceedings despite the fact, in commercial transaction normally money is not used merely to earn only interest and interest over principal money against the judgment-debtor become finance available to the judgment-debtor which otherwise he would not have got from anyone else. This court can proceed only within the framework of the statutory provisions and can only take note of the events which occurred and happens in the course of the proceedings and cannot legislate. It is for the jurist, legal luminaries and ultimately for the Legislature to think over this matter also.

12. The conclusion is that there exist no reason for rejection of the revision petition nor hearing can be postponed in the facts of this case on the request of principal borrowers and at the request of the guarantor made today during the course of arguments that they may further be granted some time to gel the adjudication of application filed by the decree-holder in the execution about the relief of their own detention in civil imprisonment.

13. On merits, learned counsel for the petitioner, submits that the decree dated 28.3.1992 is joint and several; right of the decree-holder petitioner to recover the amount by sale of the mortgaged property has been finally determined by the final decree dated 23.2.1994 and, therefore, this is the absolute choice of the decree-holder to recover the amount from anyone of the judgment debtor and the court, after passing joint and several decree against all the defendants judgments-debtors, if directs decree-holder to recover amount first from principal borrowers and after failing in it, the decree-holder may recover the decretal amount from guarantor will make the decree in alternative. Learned counsel for the petition relies upon the judgment of the Hon'ble Supreme Court delivered in the case of State Bank of India v. Messrs Indexport Registered and Ors. (1), wherein it has been held that it is right of the decree-holder to proceed with the execution of the decree in a way he likes. The same judgment in being relied upon by the learned counsel for the non-petitioner No. 5 and who referred para No. 24 of the same judgment. According to the learned counsel for the non-petitioner No. 5, the Hon'ble Supreme Court taken note of the fact that the judgment-debtor guarantor did not submit that the liability of the guarantor is only contingent if remedies against the principal debtor fail to satisfy the dues of the decree-holder. It has also been pointed by the learned counsel for the non- petitioner No. 5 that the Hon'ble Supreme Court specifically observed that, has there been an objection, like the objection which has been raised by the guarantor in this case, then the matter would have been different, meaning thereby in appropriate cases, the court can pass the direction to proceed against the principal borrowers before proceeding against the guarantor or the mortgaged property.

14. It is relevant to mention here that in this case also, there is no plea of the guarantor and in view of the decree, rightly not, that liability of the guarantor is contingent, therefor, the judgment referred above supported plea of the decree-holder rather than the guarantor.

15. So far as the facts of this case are concerned and referred above in detail, they disclose that there in this case, according of the petitioner bank, there is not chance of recovery of amount from the principal borrowers. The argument of the learned counsel Shri B.V. Thanvi that there is chance of satisfaction of the decree by the principal borrowers and they are expecting to get the money from the employer of Shri Paliwal, who expired and the borrowers are legal heirs of Shri Paliwal are entitled for the money, fortifies the contention of the petitioner that at present even after more than 11 years of passing of preliminary decree and after more than 9 years from final decree, there are no funds and property available with the principal borrowers from which the amount can be recovered by the decree-holder. In view of the statement of learned counsel Shri B.V. Thanvi himself that there are objections of the employer for the amount to be paid by the employer to any of the heirs of Paliwal and in view of the fact that the principal borrowers are still thinking to file writ petition only it is clear that the petitioner decree-holder cannot recover the decretal amount for a further good period. In these circumstances, the facts completely falsify the plea of the non-petitioner No. 5 that the amount can be recovered from the principal borrowers and, therefore, the court should wait or direct the decree-holder to recover the amount from the principal borrowers.

16. It cannot be presumed and imagined that the decree-holder will have to wait for indefinite period and will have to consider the properties which may come in the hands of the principal borrowers and from that party the decree-holder may recover and till this hope remains, the decree-holder cannot proceed to recover the amount of loan from the security. This proposition will go absolutely against the principal of joint and several liabilities of the principal and guarantor. Therefore, the objection raised by the non-petitioner No. 5 guarantor deserves to be rejected.

17. Learned counsel for the non-petitioner No. 5 submitted that the decree against the non-petitioner No. 5, preliminary as well as final was passed ex parte. This fact is taken note of by this court also but the ex parte decree is also binding as the contentious decree. Therefore, this fact helps in no way to the non-petitioner No. 5.

18. Learned counsel for the non-petitioner No. 5 further submitted that the objection about the legality and nullity of the decree can be raised at any stage and question of law also can be raised by the non-petitioner No. 5 to show that the decree cannot be executed against the non-petitioner No. 5. The objection of the learned counsel for the non-petitioner No. 5 deserves to be rejected simply because of the reason that no illegality in the decree and no lack of jurisdiction has been pointed out of the court in passing the impugned decrees and a decree cannot be challenged on the ground that it is ex parte decree.

19. Learned counsel for the non-petitioner No. 5 submitted that the proceedings in the execution petition are similar to the proceedings in civil suits for which learned counsel for the non- petitioner No. 5 relies upon the judgments of the Hon'ble Supreme Court delivered in the cases of Raghunath Prradhani v. Damodra Mahapatra (2) and. S.A. Sundrarajan v. A.P.V. Rajendra (3). Though, learned counsel for the non-petitioner submitted as said above, but how it applies to the facts of this case has not been pointed out. In this case, only in execution petition, an application under Section 151 CPC was filed and was decided by the executing court in favour of the objector guarantor. It will be reading laws in a manner which was never though of by the law framers if an application of this nature will have to be decided by the court after holding trial which is provided for trial for civil suit.

20. It is also submitted that the objection petition under Section 151 CPC can be treated as an objection under Section 47 CPC. The objection raised in the application under Section 151 CPC was considered and has not been rejected by the executing court holding it as beyond the scope of the application under Section 151 CPC, rather the application under Section 151 CPC, rather the application was allowed and the relief claimed by the non-petitioner No. 5 has been granted to him, and this court is also not rejecting the objection of the guarantor on the ground of wrong mentioning of law in the application or on the ground of wrong label of the application, then how and why these objections about the adopting procedure by the court and for treating the application under Section 47 CPC have been raised by the non- petitioner No. 5 are not explained, hence rejected.

21. Learned counsel Shri B.V. Thanvi, appearing on behalf of the principal appearing on behalf of the principal borrowers has only requested that the matter may be deferred till the decision of the application for sending the judgment-debtors in civil imprisonment stand rejected in view of the reasons given while considering the arguments of learned counsel for the non- petitioner No. 5 and learned counsel Shri B.V. Thanvi in preceding paras.

22. In view of the above discussion, this revision petition deserves to be allowed and the order dated 26.5.1995 is liable to be set aside.

23. The revision petition is, therefore, allowed and the order dated 26.5.1995 is set aside and it is held that petitioner, in the facts of this case, cannot recover the amount even in the near future from the principal borrowers or from their property and though there was slackness on the part of the petitioner bank, this is not a case where the guarantor can be discharged even after taking note of the judgment cited by the learned counsel for the petitioner in the cases of Sunil Fulchand Shah v. The Union of India and Ors. (4) and State of Bank of India v. Quality Bread Factory, Batala and Ors. (5), because the petitioner lodged the execution petition to execute the decree dated 25.2.1994 in the year 1994 itself and one adverse order was passed by the executing court against the petitioner on 26.5.1994, was challenged by filing a revision petition immediately which shows earnest efforts of the petitioner to recover the amount from guarantor which they might have though proper and option exercised by the decree-holder found just and reasonable in view of the subsequent development referred above.