Section 76 of the Multi State Cooperative Societies Act, 1984=Without availing of the procedure provided by Rule 37 (13) of the Multi State Co-operative Society Rules, 2002 by which the defaulter/ borrower could approach the authorities with an amount of 5% to be paid to the auction purchaser together with the full amount of the outstanding loan and expenses of attachment and sale to the decree holder, with interest thereon, within 30 days of confirmation of sale. If this were done, the said sale could have been set aside. Since the borrower did not repay at any stage the money borrowed by him, the borrower filed a Writ Petition being Writ Petition No. 325 of 2007 dated 21.6.2007 before the High Court of Bombay at Goa to quash both the award and the certificate of sale accorded in favour of the Appellant.=material irregularity in conducting the sale. For the petitioner to make out such a ground, he has first to apply to the recovery officer within 30 days from the date of sale. And further, the appellant has to make out a case that he has sustained substantial injury by reason of such irregularity. = A charge of malafides has to be made out with great clarity and particularity. Also, the appellant cannot claim to be in the dark as every auction sale was publicly advertised in newspapers. = LUDOVICO SAGRADO GOVEIA Vs. CIRILA ROSA MARIA PINTO & ORS.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.8756 OF 2016


Ludovico Sagrado Goveia                            …Appellant

                             Versus

Cirila Rosa Maria Pinto and Ors.                  ...Respondents




                               J U D G M E N T


R.F.Nariman, J.


The present appeal is filed by the successful purchaser at an  auction  held
in execution of an order dated  5.10.2010  of  the  Assistant  Registrar  of
Cooperative  Societies  passed  under  Section  76  of   the   Multi   State
Cooperative Societies Act,  1984  [hereinafter  referred  to  as  “the  1984
Act”]. The brief facts of the present appeal are as follows.

Respondent No. 3 in the High Court, as Proprietor  of  M/s  Gable  Builders,
obtained a loan of Rs. 40 lacs from the  Mapusa  Branch  of  the  Goa  State
Cooperative Bank Ltd. The said  loan  was  sanctioned  for  the  purpose  of
construction of a Bungalow. By a deed of  mortgage  executed  on  2.12.1997,
the said loan was secured by mortgaging the western part  of  the  scheduled
property admeasuring 8000 sq. mts. The principal borrower  failed  to  repay
the loan installments. That being so, recovery  proceedings  were  initiated
under Sections 74 and 76 of the said Act by the Bank against respondent  No.
3 and two sureties of the said loan. The Assistant Registrar of  Cooperative
Societies, by an Award dated 5.10.2007,  noticed  that  despite  being  duly
served summons by Registered post A.D., all  the  three  opponents  remained
absent. As a result, an ex-parte award was  passed  holding  all  the  three
opponents jointly and severally liable to pay the loan dues amounting to  Rs
55,04,583/- .  It  may  be  mentioned  that  interest  was  payable  at  21%
compounded under the said deed of mortgage dated 2.12.1997.

A demand notice dated 12.6.2001 was then issued by the Bank  under  Rule  22
of the Multi State Co-operative Society Rules, 1985 against  all  the  three
said persons for  a  principal  amount  of  Rs.  60,59,646/-  together  with
further interest at 19% per annum from 1.4.2001 till the date of payment.

In spite of receiving the said notice, the  defaulters  failed  to  pay  any
amount towards bank dues, and the bank then  referred  the  said  award  for
execution to the Sale and Recovery Officer, Regional Office at  Verem,  Goa.
The said Recovery Officer issued a proclamation notice for  sale  by  public
auction of the mortgaged property by  publishing  a  notice  dated  2.1.2002
which was duly published in  the  Daily  Herald  on  5.1.2002.  Nobody  came
forward in response to the said notice. Between January  2002  and  February
2007 several proclamation notices were issued – six  in  all-  to  sell  the
said mortgaged property, but no bidders came forward to  purchase  the  said
property. The Bank then decided to  sell  the  said  mortgaged  property  by
adopting the mode of selling property by  sealed  tender.  Accordingly,  the
Sale and Recovery Officer issued a tender  notice  dated  18.3.2007  calling
for sealed tenders. The said notice was published in a local newspaper  “The
Tarun Bhagat” also of the same date. As per the said tender  notice,  sealed
quotations were invited from the public on or before 23.3.2007.

Two sealed tenders were received on 20.3.2007.  A  bid  of  Rs.  86,00,000/-
received from the appellant in the  present  appeal  was  found  to  be  the
highest and accordingly, since the appellant paid the entire bid  amount  of
Rs. 86,00,000/-, a Sale Certificate in favour of the  appellant  was  issued
on 23.4.2007.

Without availing of the procedure provided by Rule  37  (13)  of  the  Multi
State Co-operative Society Rules, 2002  by  which  the  defaulter/  borrower
could approach the authorities with an amount  of  5%  to  be  paid  to  the
auction purchaser together with the full amount of the outstanding loan  and
expenses of  attachment  and  sale  to  the  decree  holder,  with  interest
thereon, within 30 days of confirmation of sale.  If  this  were  done,  the
said sale could have been set aside. Since the borrower  did  not  repay  at
any stage the money borrowed by him, the  borrower  filed  a  Writ  Petition
being Writ Petition No. 325 of 2007 dated 21.6.2007 before  the  High  Court
of Bombay at Goa to quash  both  the  award  and  the  certificate  of  sale
accorded in favour of the Appellant.

By the impugned judgment dated 23.12.2013, the High Court has held that  the
Multi State Co-operative Societies Act,  1984  was  repealed  by  the  Multi
State Co-operative Societies Act, 2002, [hereinafter  referred  to  as  “the
2002 Act”] which Act came into force on 19.8.2002.  According  to  the  High
Court, the new Act deems an award passed by the Assistant  Registrar  as  an
award  in  an  arbitration  case,  which  is  executable  only   under   the
Arbitration and Conciliation Act, 1996  [hereinafter  referred  to  as  “the
1996 Act”], and this being the case, the auction proceedings were set  aside
by the High Court stating that the award dated 5.10.2002 would be liable  to
be executed only in  the  manner  provided  by  the  1996  Act.  It  is  the
correctness of this judgment that has to be inquired  into  in  the  present
appeal.

Learned counsel for the appellants has placed  the  relevant  provisions  of
both the 1984 Act and 2002 Act, and has  relied  in  particular  on  Section
126(6) of the 2002 Act to contend that all legal proceedings that  had  been
initiated under the 1984 Act would continue under that Act. This  being  the
case, it is clear that as execution  proceedings  were  initiated  prior  to
19th August, 2002, which is the date of coming into force of the  2002  Act,
the said proceedings would be saved despite repeal of the 1984  Act  by  the
2002 Act.

On the other hand, learned counsel appearing on behalf  of  the  respondent,
argued that, under the 2002 Act, the 1996 Act  alone  would  get  attracted,
and that, therefore, the High Court judgment was  correct.  Learned  counsel
further argued that even if the impugned judgment  were  to  be  set  aside,
other points remained to be argued in the Writ Petition so that  the  matter
could then be remanded back to the High Court for further  consideration  of
these other points.

We have heard learned counsel for  the  parties.  Before  dealing  with  the
contentions raised before us it will be important to set  out  some  of  the
relevant statutory provisions.

“Multi-State Co-operative Societies Act, 1984

74. (1) Notwithstanding anything contained in any other  law  for  the  time
being in force, if any dispute (other than a dispute regarding  disciplinary
action  taken  by  a  multi-State  co-operative  society  against  its  paid
employee or an industrial dispute as defined in clause (k) of section  2  of
the Industrial Disputes Act, 1947) touching the constitution, management  or
business of a multi-State co-operative society arises-
(a)  among members, past members and persons claiming through members,  past
members and deceased members, or
(b)    between a member, past member or a person claiming through a  member,
past member or deceased member and the  multi-State   co-operative  society,
its board or any officer, agent or employee of the multi-State  co-operative
society or liquidator, past or present , or
(c)      between the multi-State co-operative society or its board  and  any
past board, any officer, agent or employee, or any past officer, past  agent
or past employee or the nominee,  heirs  or  legal  representatives  of  any
deceased officer, deceased agent, or deceased employee  of  the  multi-State
co-operative society, or
(d)     between the multi-State co-operative society and  any  other  multi-
State co-operative society, between a multi-State co-operative  society  and
liquidator of another multi-State co-operative society  and  the  liquidator
of another multi-State co-operative society.
Such dispute shall be referred to the Central Registrar for decision and  no
court shall have jurisdiction to entertain any suit or other proceedings  in
respect of such dispute :
      Provided that all disputes in which a  national  co-operative  society
is a party shall be  referred  to  the  Central  Registrar  or  any  officer
empowered to exercise the powers of the Central Registrar.

(2)   For the purposes of sub-section (1), the following shall be deemed  to
be disputes touching the constitution, management or business  of  a  multi-
State co-operative society, namely :-
(a)    a claim by the multi-State  co-operative  society  for  any  debt  or
demand  due  to  it  from  a  member  or  the  nominee,   heirs   or   legal
representatives of a  deceased  member,  whether  such  debt  or  demand  be
admitted or not;
(b)      a claim by a surety against the principal debtor where  the  multi-
State co-operative society has recovered  from  the  surety  any  amount  in
respect of any debt or demand due to it  from  the  principal  debtor  as  a
result of the default of the principal debtor, whether such debt  or  demand
is admitted or not;

(3)    If any question arises whether a  dispute  referred  to  the  Central
Registrar is or is not a dispute touching the  constitution,  management  or
business of a multi-State co-operative society, the decision thereon of  the
Central Registrar shall be final and shall not be called in question in  any
court.

76.   Settlement of disputes.-  (1)  The Central Registrar may,  on  receipt
of the reference of dispute under section 74,-

     (a)   elect to decide the dispute himself, or

     (b) transfer it for disposal to any other person who has been  invested
by the Central Government with powers in that behalf.

(2)  The Central Registrar may  withdraw  any  reference  transferred  under
clause (b) of sub-section (1)  and decide it himself or refer the  same  for
decision  to  any  other  person  who  has  been  invested  by  the  Central
Government with powers in that behalf.

(3)   The Central Registrar or  any  other  person  to  whom  a  dispute  is
referred for decision under this section may, pending the  decision  of  the
dispute, make such interlocutory orders as he  may  deem  necessary  in  the
interest of justice.

85.  Execution of decision, etc.  –  Every  decision  or  order  made  under
section 30. Section 31, section 73, section 76, section 90,  section  92  or
section 93 shall, if not carried out.-

(a)  on a  certificate  signed  by  the  Central  Registrar  or  any  person
authorized by him in writing in this behalf, be deemed to be a decree  of  a
civil court and shall be executed in the same manner as if it were a  decree
of such court ; or

(b)   where the decision or order provides for the  recovery  of  money,  be
executed according to the law for the time being in force for  the  recovery
of arrears of land revenue :

    Provided that any application for the recovery in  such  manner  of  any
sum shall be made –

 To the Collector and shall be accompanied by a certificate  signed  by  the
Central Registrar or by any person authorized by  him  in  writing  in  this
behalf ;

Within twelve years from the date fixed in the decision or order and  if  no
such date is fixed, from the date of the decision or order, as the case  may
be; or

(c)   be executed by the Central Registrar or any person authorized  by  him
in writing in this behalf, by attachment sale or sale without attachment  of
any property of the person or a  multi-State  co-operative  society  against
whom the decision or order has been made.



Multi-State Co-operative Societies Act, 2002


84. Reference of disputes.-  (1) Notwithstanding anything contained  in  any
other law for the time being in force, if any dispute [other than a  dispute
regarding disciplinary action taken by a  multi-State  co-operative  society
against its paid employee or an industrial dispute as defined in clause  (k)
of section 2 of the Industrial Disputes Act, 1947  (14  of  1947)]  touching
the constitution, management  or  business  of  a  multi-State  co-operative
society arises-

(a)  among members, past members and persons claiming through members,  past
members and deceased members, or

(b)  between the member, past member and persons claiming through a  member,
past member or deceased member and  the  mutli-State  co-operative  society,
its board or any officer, agent or employee of the mutli-State  co-operative
society or liquidator, past or present, or

(c)   between the multi-State co-operative society  or  its  board  and  any
past board, any officer, agent or employee, or any past officer, past  agent
or past employee, heirs or legal representatives of  any  deceased  officer,
deceased  agent  or  deceased  employee  of  the  multi-State   co-operative
society, or

(d)   between the multi-State co-operative and  any  other  multi-State  co-
operative  society,  between  a   multi-State   co-operative   society   and
liquidator of another mutli-State co-operative society  and  the  liquidator
of another multi-State co-operative society.

            Such dispute shall be referred to arbitration.

(2)   For the purposes of sub-section (1), the following shall be deemed  to
be disputes touching the constitution, management or business  of  a  multi-
State co-operative society, namely:-

(a)  a claim by the multi-State co-operative society for any debt or  demand
due to it from a member or the nominee, heirs or legal representatives of  a
deceased member, whether such debt or demand be admitted or not;

(b)   a claim by a surety against the  principal  debtor  where  the  multi-
State co-operative society has recovered  from  the  surety  any  amount  in
respect of any debt or demand due to it  from  the  principal  debtor  as  a
result of the default of the principal debtor, whether such debt  or  demand
is admitted or not ;

(c)   Any dispute arising in connection with the election of any officer  of
a multi-State co-operative society.

(3)   If a question arises whether a dispute referred to  arbitration  under
this section is or is not a dispute touching  the  constitution,  management
or business of a multi-State co-operative society, the decision  thereon  of
the arbitrator shall be final and shall not be called  in  question  in  any
court.

(4)   Where a dispute has been referred  to  arbitration  under  sub-section
(1), the same shall be settled or decided by the arbitrator to be  appointed
by the Central Registrar.

(5)   Save as otherwise provided under  this  act,  the  provisions  of  the
Arbitration and Conciliation Act, 1996 (26  of  1996)  shall  apply  to  all
arbitration under this Act  as  if  the  proceedings  for  arbitration  were
referred for settlement or decision under the provisions of the  Arbitration
and Conciliation Act, 1996.

94. Execution of decisions,  etc.-   Every  decision  or  order  made  under
section 39 or section 40 or section 83 or section 99 or section  101  shall,
if not  carried out,-

(a)  on a  certificate  signed  by  the  Central  Registrar  or  any  person
authorized by him in writing in this behalf, be deemed to be a decree  of  a
civil court and shall be executed in the same manner as if it were a  decree
of such court and such decree shall be executed by the Central Registrar  or
any person authorized by him in writing in this behalf,  by  attachment  and
sale or sale without attachment of any property of the person of the  person
or a multi-State co-operative society against whom  the  decision  or  order
has been made; or

(b)  where the decision or order provides for  the  recovery  of  money,  by
executed according to law for the time being in force for  the  recovery  of
arrears of land revenue:

        Provided that any application for the recovery of any sum  shall  be
made in such manner-

To the Collector and shall be accompanied by a  certificate  signed  by  the
Central Registrar or by any person authorized by  him  in  writing  in  this
behalf;

Within twelve years from the date fixed in the decision or order and  if  no
such date is fixed, from the date of decision or order, as the case may  be;
or


(c)   be executed by the Central Registrar or any person authorized  by  him
in  writing  in  this  behalf,  by  attachment  and  sale  or  sale  without
attachment of any property of  the  person  or  a  multi-State  co-operative
society against whom the decision or order has been made.



126. Repeal and saving. (1)  The  Multi-State  Co-operative  Societies  Act,
1984 (51 of 1984) is hereby repealed.



(2) Without prejudice to the provisions contained  in  the  General  Clauses
Act, 1897 (10 of 1897) with respect  to  repeals,  any  notification,  rule,
order, requirement, registration, certificate, notice, decision,  direction,
approval,  authorisation,  consent,  application,  request  or  thing  made,
issued, given or done under  the  Multi-State  Co-operative  Societies  Act,
1984 (51 of 1984) shall, if in  force  at  the  commencement  of  this  Act,
continue to be in force and have effect as if made, issued,  given  or  done
under the corresponding provisions of this Act.



(3) Every multi-State co-operative society, existing immediately before  the
commencement of this Act which has been registered  under  the  Co-operative
Societies Act, 1912 (2 of 1912) or under  any  other  Act  relating  to  co-
operative societies  in  force,  in  a  y  State  or  in  pursuance  of  the
provisions of the Multi-unit Co-operative Societies Act, 1942  (6  of  1942)
or the Multi-State Co-operative Societies Act, 1984 (51 of 1984),  shall  be
deemed to be registered under the corresponding provisions of this Act,  and
the bye-laws of such society shall, in so far as they are  not  inconsistent
with the provisions of this Act, or the  rules,  continue  to  be  in  force
until altered or rescinded.



(4) All appointments, rules and orders made, all notifications  and  notices
issued and all suits and other proceedings instituted under any of the  Acts
referred  to  in  sub-section  (1)  shall,  in  so  far  as  they  are   not
inconsistent with the provisions  of  this  Act,  be  deemed  to  have  been
respectively made, issued and instituted under this Act, save that an  order
made cancelling the  registration  of  a  multi-State  co-operative  society
shall be deemed, unless the society has already been finally liquidated,  to
be an order made under section 86 for its being wound up.



(5) The provisions of this Act shall apply to-

(a) any application for registration of a multi-State co-operative  society;


(b) any application for registration of amendment of bye-laws  of  a  multi-
State co-operative society,

pending at the commencement of this Act and to  the  proceedings  consequent
thereon and to any registration granted in pursuance thereof.



(6) Save as otherwise provided in this Act, any legal proceeding pending  in
any court or before the Central Registrar or  any  other  authority  at  the
commencement of this Act shall be continued to be in that  court  or  before
the Central Registrar or  that  authority  as  if  this  Act  had  not  been
passed.”




The first thing that can be noticed  is  that  an  adjudication  made  under
Section 74 and 76 of 1984 Act can be executed  in  the  manner  provided  by
Section 85 of the 1984 Act. Every decision or order made  under  Section  76
can be executed in three ways. We are  concerned  with  sub-clause  (c),  in
particular, inasmuch, as on the facts of the  present  case,  the  execution
application was made to attach and sell the property of the persons  against
whom the said order has been made.

The scheme of the  2002  Act  which  replaces  the  1984  Act  is  a  little
different. Section 84 of the 2002 Act corresponds to Section 74  and  76  of
the 1984 Act. With this difference – that disputes that have  been  referred
to arbitration are now to be settled or decided  by  the  Arbitrator  to  be
appointed by the Central Registrar, and the provisions,  therefore,  of  the
1996 Arbitration and Conciliation Act shall apply to such arbitration as  if
the proceedings for arbitration were referred  for  settlement  or  decision
under the provisions of the said Act.

Thus it can be seen that Section 84 (4) and (5) of the new Act  provide  for
a different scheme. Equally, Section 94  which  provides  for  execution  of
certain decisions and orders made  under  the  2002  Act,  mentions  various
Sections, but Section 84 is conspicuous by its absence.  This  is  obviously
for the reason that the entire proceedings have now to  be  conducted  under
the 1996 Act, including execution of the arbitration Award  made  under  the
said Act. The  question  before  the  High  Court  was  whether  proceedings
initiated under the old Act could continue under the said Act.

 For this, it is important to advert  to  Section  126(6),  which  has  been
completely missed by the High Court. By this Section, any  legal  proceeding
pending before any authority at the commencement of the 2002 Act   shall  be
continued to be before that authority as  if  the  2002  Act  had  not  been
passed.

The  expression  “legal  proceeding”  has  been  the   subject   matter   of
consideration in the Federal Court decision in Governor-General  in  Council
v. Shiromani Sugar Mills Ltd., AIR 1946 FC 16. In that decision Section  171
of the Indian Companies Act, 1913 came up for  consideration.  That  Section
reads as follows:
“When a winding-up order has been made or a provisional liquidator has  been
appointed, no suit or other legal proceeding  shall  be  proceeded  with  or
commenced against the company except by leave of the court, and  subject  to
such terms as the court may impose.”

The Federal Court held that the  expression  “other  legal  proceedings”  in
Section 171 of the Indian  Companies  Act,  1913  comprises  any  proceeding
initiated by the revenue for recovery of tax dues under  the  Indian  Income
Tax Act. There is no warrant for a narrow construction  of  such  expression
as meaning ‘proceedings only in  courts’.  The  Federal  Court  specifically
held that initiating and putting into force the  collection  of  arrears  of
income tax as arrears of land revenue by authorities under  the  Income  Tax
Act would be a “legal proceeding”.

In Binod Mills Co. Ltd. Ujjain (M.P.)  v.  Suresh  Chandra  Mahaveer  Prasad
Mantri, Bombay, 1987 (3) SCC 99, this Court had to  construe  Section  5  of
the M.P. Sahayata Upkram (Vishesh Upbandh) Adhiniyam,  1978.  Section  5  of
the said Adhiniyam reads as follows:
“5.  Suspension  of  suits  or  other  legal  proceedings   against   relief
undertakings.—As from the date specified  in  the  notification  under  sub-
section (1) of Section 3,  no  suit  or  other  legal  proceeding  shall  be
instituted or commenced or, if pending, shall be proceeded with against  the
industrial undertaking during the  period  in  which  it  remains  a  relief
undertaking any law, usage, custom,  contract,  instrument,  decree,  order,
award, settlement or other provisions whatsoever notwithstanding.”

This Court referred in detail to the aforesaid Federal Court  decision,  and
further went on to hold that Section 5  would  include  execution  petitions
that were filed to execute decrees under the Code of Civil Procedure.

It is thus clear that the proceeding in execution  initiated  under  Section
85(c) of 1984 Act and pending before the  authorities  under  the  said  Act
prior to 19th August, 2002, would continue unhindered by the repeal  of  the
1984 Act by the 2002 Act.  This  being  the  case,  it  is  clear  that  the
judgment under appeal is incorrect, and would have to be set aside.


20.   In the affidavit in reply filed by the bank to the Writ Petition,  the
bank states that  it  has  recovered  the  entire  loan  due  together  with
interest amounting to Rs.85,15,311.75 as against  Rs.86  lakhs  received  in
the  auction  proceedings,  and  admits  that  the  balance  amount  of  Rs.
74,688.25 over and above the loan dues are payable to the  appellant.   This
being the case, and in order to do complete justice between the parties,  it
is ordered that the amount of Rs.74,688.25, together with  interest  at  the
rate of 19 per cent compounded per annum with effect from 1st  April,  2007,
be paid by the bank to the appellants within a period  of  four  weeks  from
the date of pronouncement of this judgment.



21.   Learned counsel for the respondent exhorted  us  to  send  the  matter
back for a decision on grounds (V) and (VI) of the Writ Petition which  read
as follows:

“(V) The Petitioner further submits that the said  Sale  Certificate  issued
by Respondent no.2 pursuant to the  notice  dated  17.3.2007  is  also  void
being passed under the colour of powers, in as much as the  Respondent  no.2
could not give a go-bye to the mandate of Rule 36  of  the  Multi-State  Co-
operative Societies Rules and decided to hold the auction and/ or  open  the
tenders in a period short of 15 days, in as much as the said Rule  does  not
provide for relaxation. On the other  hand,  it  mandates  that  the  notice
shall be of a period of 15 days.

(VI) The entire action of the Respondent No. 2  is  malafide  and  meant  to
favour of the Respondent No.3 in as much  as  facts  stated  above  make  it
clear that, that apart, the conduct of the Respondents in not providing  the
 certified copies of  the proceedings and  keeping  the  Petitioner  in  the
dark when she is the owner of the property and  surreptitiously  seeking  to
hold the auction giving a go-bye to  the  statutory  requirements  makes  it
clear that the Respondent No. 2 acted malafide with  respect and  which  act
vitiates the entire proceedings.”


22.   We find that after six failed attempts to sell the property  we  would
not be inclined to accede to this request at this point in  time.  We  find,
on the facts of this case, that at no stage were the respondent –  borrowers
ready to pay back the entire money borrowed by them as far back as in  1997.
We also find that a Writ Petition was filed in 2007  without  attempting  to
set aside the certificate of sale granted under either Rule 37(13)  or  (14)
of the Multi State Co-operative Society Rules, 2002[1].     It  is  of  some
significance that it is not the appellant’s case that the property has  been
sold  at  an  undervalue.   Also,  as  has  been  pointed  out  above,   the
opportunity to have the sale certificate set aside  under  Rule  37(13)  has
not been availed.  Ground V of the Writ Petition  is  in  reality  a  ground
relatable to Rule 37(14), as,  according  to  the  petitioner,  there  is  a
material irregularity in conducting the sale.  For the  petitioner  to  make
out such a ground, he has first to apply to the recovery officer  within  30
days from the date of sale.  And further, the appellant has to  make  out  a
case  that  he  has  sustained  substantial  injury  by   reason   of   such
irregularity.  Ground V  of  the  Writ  Petition  does  not  even  refer  to
substantial injury for the reason that is not the appellant’s case that  the
property has been sold at a gross undervalue.  No relief  can  be  given  in
the Writ Petition so as to circumvent the statutory provisions contained  in
Rule  37(13)  and  (14).   Ground  VI  is  totally  vague  and  lacking   in
particulars.  A charge of malafides has to be made out  with  great  clarity
and particularity.  Also, the appellant cannot claim to be in  the  dark  as
every auction sale was publicly advertised in newspapers. We, therefore,  do
not accede to counsel’s fervent plea to remit the rest of the Writ  Petition
to the High Court for hearing.

We therefore set aside the judgment under appeal as a whole. There will  not
be any order as to costs.


..............................J.
(DIPAK MISRA)


..............................J.
(R.F. NARIMAN)
New Delhi;
September 6, 2016
-----------------------
[1]    (13) (a) Where immovable property has been sold by the Sale  Officer,
any person either owning such property or holding  an  interest  therein  by
virtue of a title acquired before such sale may apply to have the  sale  set
aside on his depositing with the recovery officer –
       (i) for payment to the purchaser a sum equal to five per cent of  the
purchase money, and
       (ii)  for  payment  to  the  decree-holder,  the  amount  of  arrears
specified in the proclamation of sale as that for the recovery of which  the
sale was  ordered  together  with  interest  thereon  and  the  expenses  of
attachment, if any, and sale and other costs due in respect of such  amount,
less amount which  may  since  the  date  of  such  proclamation  have  been
received by the decre?

Deed of Family Settlement seeking to partition joint family properties cannot be relied upon unless signed by all the co-sharers ? = Deed of Family Settlement seeking to partition joint family properties cannot be relied upon unless signed by all the co-sharers. In the instant case, admittedly, the Respondent No.8, Sau. Pratibha, was not a signatory to the Deed of Settlement dated 8th February, 1967, although, she is the daughter of Bapu Saheb Kante by his first wife. As was held in the case of M.N. Aryamurthy (supra), under the Hindu Law if a Family Arrangement is not accepted unanimously, it fails to become a binding precedent on the co-sharers. Both Mr. Vivek Tankha and Mr. Anoop G. Chaudhary, learned Senior Advocates, brought this point to our notice to indicate that all the co-sharers had not consented to the Deed of Family Settlement which could not, therefore, be relied upon. The argument would have had force had it not been for the fact that acting upon the said Settlement, the appellants had also executed sale deeds in respect of the suit property. Having done so, it would not be open to the appellants to now contend that the Deed of Family Settlement was invalid. As mentioned hereinabove, there is yet another question which goes against the case made out by the appellant, viz., that after the Deed of Family Settlement, even the appellant has executed Conveyances in respect of portions of the suit property, thereby supporting the case of the respondent that the Deed of Family Settlement dated 8th February, 1976, had not only been accepted by the parties, but had also been acted upon.

               IN THE SUPREME COURT OF INDIA

                CIVIL APPELLATE JURISDICTION

         CIVIL APPEAL NO.8290          OF 2009
     (@ SPECIAL LEAVE PETITION (C)NO.27909 OF 2008)



NARENDRA KANTE                                     ... Petitioner

          Vs.


ANURADHA KANTE & ORS.                              ... Respondents




                         J U D G M E N T


ALTAMAS KABIR, J.


1.    Leave granted.


2.    This appeal is directed against the judgment

and order dated 13th October, 2008, passed by the

Gwalior    Bench    of    the   Madhya   Pradesh     High    Court

dismissing      Miscellaneous      Appeal   No.478      of   2007

filed     by     the      appellant      herein.      The     said
                                                               2

Miscellaneous    Appeal       had   been    preferred      by   the

appellant    against    the    order   dated    14th   February,

2007,   passed   by     5th    Additional     District     Judge,

Gwalior, in Civil Suit No.08A of 2006 filed by the

appellant    rejecting        the   appellant's      application

under Order 39 Rules 1 and 2 of the Code of Civil

Procedure.


3.   The    appellant    herein      had    filed    the   above-

mentioned     suit     for     declaration     and     permanent

injunction and also mandatory injunction in respect

of the suit property situated at Nadigate Jayendra

Ganj, Lashkar, Gwalior, bearing Survey No.37/903 on

the ground that the suit property was the ancestral

property of his father, Bapu Saheb Kante, who had

died intestate on 13th May, 1976. The application

for ad-interim injunction had been filed in the

suit which was rejected by the Trial Court on the

ground that a partition had been effected between

the legal heirs of Bapu Saheb Kante.                It was also
                                                             3

held that a Family Settlement had been effected

between the heirs of Bapu Saheb Kante, whereby Smt.

Putli Bai and Surendra Kante, the widow and son of

Bapu Saheb Kante, acquired a 50% share of House

No.95/21. The Respondent Nos.1 and 2 herein are the

widow    and   daughter   of   late   Surendra      Kante,    and

after his death their names were recorded in the

Municipal records.


4.     At this juncture it may be pertinent to mention

that    Bapu   Saheb   Kante   is   said   to    have   had   two

wives, Smt. Putli Bai and the mother of Jai Singh

Rao. The appellant herein is one of the sons of

Bapu Saheb Kante through his wife, Smt. Putli Bai.

When, after the death of Bapu Saheb Kante a son by

his second wife, Jai Singh Rao, came to claim a

share    in    his   estate,   a    family      settlement    was

arrived at by which the properties of Bapu Saheb

Kante were divided amongst the heirs by a Family

Arrangement dated 8th February, 1967, by metes and
                                                                  4

bounds. Under the said arrangement, Jai Singh Rao

was allowed to retain possession of plot No.25/528

and after his death on 15th June, 1971, his wife and

children were allowed to live in the said premises.

However, since the concession granted to them was

misused, Surendra Kante filed a suit against them

for     possession     in     respect        of   the   property       in

dispute and the same was partly decreed on 14th

September, 1993.


5.     First Appeal No.76 of 1993 was filed by the

legal heirs of Jai Singh Rao, wherein it was sought

to be asserted that no partition had at all been

effected in respect of the properties of late Bapu

Saheb     Kante   and       that       the   alleged    document       of

partition could not be acted upon since the same

had not been registered and was not, therefore,

admissible in evidence.                In the First Appeal it was

held    that   there    was        a    previous    oral   partition

which was reduced into writing later on, on 8th
                                                           5

February, 1967, which could in fact be said to be a

Memorandum of Partition in the eyes of law.             It was

observed that while a document of partition does

require registration, the Memorandum of Partition

subsequently     executed     after       an   oral   partition

entered into on the basis of a mutual agreement

could not be said to be inadmissible on account of

non-registration, since the same did not require

registration within the meaning of Section 17 of

the Registration Act, 1908.


6.     The High Court accepted the contention that a

partition had been effected between the heirs of

Bapu    Saheb   Kante   and   that    a   document    had   been

executed in that regard on 8th February, 1967, and

that it was not open to the defendants, as well as

to the predecessor-in-title of Jai Singh Rao, to

wriggle out of the said agreement which had been

admitted by the defendants.          The First Appeal filed

by Surendra Kante was allowed and the other appeal
                                                                        6

filed by the predecessor-in-interest of Jai Singh

Rao was dismissed.                 A Letters Patent Appeal was

filed by Jai Singh Rao questioning the judgment and

decree passed by the Trial Court, which was also

dismissed by the Division Bench of the High Court

upon    holding       that       the     partition     deed      dated       8th

February,          1967,    is     a     Memorandum         of   Partition

pertaining to a previous oral partition.


7.     In    the    present       suit    filed   by    the      appellant

herein an attempt has been made to make out a case

that the alleged partition deed of 8th February,

1967,       was    executed       only     with   the       intention        of

giving a separate share to Jai Singh Rao and the

rest of the properties remained joint as there was

no partition by metes and bounds.                            Accordingly,

the Respondents Nos.1 and 2 had no right to execute

an   agreement        and    Special       Powers      of    Attorney        in

respect      of     the    suit    property       in    favour     of    the

Defendant Nos.8 and 9 on 27th November, 2004, nor
                                                              7

did the Defendant Nos.8 and 9 have any right to

execute a sale deed in favour of Defendant No.10 on

31st March, 2006.       The appellant herein prayed for a

decree      of     permanent     injunction        against     the

defendants not to deal with the property without a

partition having been effected and also prayed for

a mandatory injunction on the defendants to remove

the wall which had been erected in the disputed

property.        The appellant herein also prayed for a

grant of temporary injunction which was rejected by

the Trial Court on 14th February, 2007, upon holding

that    a   partition    had   been     effected    between    the

legal heirs of Bapu Saheb Kante and that the Family

Settlement       had   been   reduced    into   writing   on       8th

February, 1967.


8.     Before the High Court proof of partition and

the Family Settlement, which was also accepted by

the appellant herein without any objection, were

produced, as was the decision of the High Court in
                                                                       8

First   Appeal      No.9    of    1994     in     which    the     learned

Single Judge had held that the documents of 8th

February,     1967,       had    been      held    to     be   a      Family

Settlement for which no registration was required

under Section 17 of the Registration Act, 1908.

It was also urged that since the disputed property

had   come    to    the     share    of     Surendra       Kante,       and,

thereafter, to the Respondents Nos.1 and 2, they

had the right to transfer their share in favour of

the transferees and that the defendant No.10 was a

bona fide purchaser for value.                  It was also pointed

out that the decision of the learned Single Judge

had been upheld by the Division Bench.


9.    The    High   Court       in   the       Miscellaneous          Appeal

observed     that    the     matter       of    grant     of   temporary

injunction had been considered in detail by the

Trial Court which had exercised its jurisdiction in

refusing     to     grant       temporary       injunction         to    the

appellants.          It     also      observed          that     in     case
                                                                    9

injunction was granted, it would be the defendants

who would suffer irreparable loss and injury.                            It

was    observed        that     the     defendant       No.10,        the

transferee from Respondents/defendant Nos.1 and 2,

had acquired a right to the suit property.                               He

was, therefore, allowed to carry out construction

activities      over      the      disputed         land,     but     was

restrained      from      alienating      or     transferring        the

property in question or from creating any third

party rights during the pendency of the civil suit.

The Trial Court was, however, directed to decide

the suit expeditiously and to dispose of the same

within six months from the date of appearance of

the parties before the Trial Court.


10. Questioning the aforesaid decision of the High

Court,    Mr.     Vivek       Kumar    Tankha,       learned    Senior

Advocate, submitted that the High Court had erred

in    accepting    the     stand      taken    on    behalf     of    the

defendants/respondents                herein     that       a       valid
                                                                  10

partition had taken place by metes and bounds, on

account whereof the Respondents/defendant Nos.1 and

2, as the heirs of Surendra Kante, had acquired

title to his share in the suit property and were,

therefore,     competent       to    dispose   of    the    same    in

favour of Defendant No.10.            Mr. Tankha urged that a

partition      of    joint      family    property         could    be

effected only by metes and bounds and by delivery

of actual possession.           In the absence of the same,

it could not be contended that a partition had, in

fact, been effected between the co-sharers.                        Mr.

Tankha urged that both the Trial Court, as well as

the   High     Court,    had     erred   in    pre-supposing            a

partition between the parties simply on the basis

of the Deed of Family Settlement executed on 8th

February,      1967.    It     was   submitted      that     in    the

absence   of    evidence       of    partition      by    metes    and

bounds,   the       learned    Courts    below      had    erred    in

refusing to grant ad-interim injunction as prayed

for by the appellant since once the portion of the
                                                                   11

property        allegedly         transferred       in     favour    of

Respondent No.9 was permitted to be developed, the

very object of the suit would stand frustrated.


11. Apart from the above, Mr. Tankha urged that the

learned Courts below had erred in acting upon the

Deed of Family Settlement executed on 8th February,

1967, which, in fact, was a Deed of Partition and

could     not     have     been    acted     upon    without     being

executed by all the co-sharers and without being

registered as provided for under Section 17 of the

Registration Act, 1908.              Mr. Tankha submitted that

if the Deed of Family Settlement was to be acted

upon, as has been done by the Courts below, it must

also    be     held    that   partition       had    been     effected

thereby         and,     therefore,         the     same      required

registration.          In the absence thereof, the Courts

had wrongly placed reliance on the same in refusing

to     allow     the     appellant's       prayer    for    grant    of

temporary       injunction        pending   the     hearing    of   the
                                                    12

suit. In support of his aforesaid submissions, Mr.

Tankha referred to and relied upon the decision of

this Court in M.N. Aryamurthy vs. M.D. Subbaraya

Setty (dead) through LRs. [(1972) 4 SCC 1], wherein

in the facts of the case it was held by this Court

that under the Hindu Law if a family arrangement is

not accepted unanimously, the Family Settlement has

to fail as a binding agreement.


12. Mr. Tankha urged that there could be little

doubt that in the facts of this case, the balance

of convenience and inconvenience lay in favour of

grant of temporary injunction during the pendency

of the suit, as prayed for by the appellant herein

as   otherwise       the    appellants    would    suffer

irreparable loss and injury.


13. Mr.      Anoop   G.    Chaudhary,    learned   Senior

Advocate, appearing for the Respondent No.6, while

supporting    Mr.    Tankha's   submissions,   reiterated

that the Deed of Family Settlement had not been
                                                                            13

acted upon as would be evident from the Deed of

Settlement itself.                 It would be clear therefrom

that one of the co-sharers, Sau. Pratibha, who was

shown       as    the     eighth    executant        of    the     Deed       of

Settlement dated 8th February, 1967, had, in fact,

not signed the said document.                        She was not also

made     a       party    in     the   First     Appeal,         although,

admittedly she was one of the daughters of Bapu

Saheb Kante through his first wife.


14. On the other hand, Mr. Ranjit Kumar, learned

Senior       Advocate,         appearing       for     the      Respondent

Nos.1, 2, 8, 9 and 10, reiterated that the family

settlement         of    8th   February,   1967,          had    been    duly

acted upon, as would be evident from the sale deeds

executed          by     Narendra      Kante,    which          have     been

exhibited by Narendra Kante in the suit pertaining

to    the    suit        property.       Mr.    Ranjit          Kumar    also

referred to a copy of the agreement made Annexure

P-1    to    the       Special   Leave    Petition,         which       is    an
                                                              14

agreement alleged to have been executed by Udai

Kante, Narendra Kante and Surendra Kante in favour

of one Ram Bharose Lal Aggarwal regarding Municipal

House No.15/642, known as "Kante Saheb Ka Bara".

Reference     was   also   made   to    a    suit,    being    Case

No.32A of 1991, filed by Ram Bharose Lal Aggarwal

in the Court of Third Additional District Judge,

Gwalior, for specific performance of the agreement

dated 8th February, 1967.


15. Similarly, several other documents were also

referred to by Mr. Ranjit Kumar, which were also

executed during the hearing of the suit, in order

to establish the fact that the parties, including

the present appellant, had acted in terms of the

said   Deed   of    Settlement    and   had    dealt    with    the

properties    which    had   fallen     to    their    respective

shares.


16. Mr. Ranjit Kumar submitted that as far as the

second question raised on behalf of the appellant
                                                                   15

was concerned, it was well-settled that a Deed of

Family Settlement which was reduced into writing

was not required to be registered under Section 17

of the Registration Act, 1908.                    Learned counsel

submitted that when an oral settlement had been

arrived at and acted upon and a subsequent document

was prepared only for the purpose of recording such

settlement, the provisions of Section 17 of the

Registration Act were not attracted, since except

for   recording     a     settlement,       no   actual       transfer

takes place by virtue of such document.


17. In    support    of    his    aforesaid      submission,        Mr.

Ranjit Kumar firstly relied on the decision of the

Three    Judge   Bench     in    Kale   vs.      Dy.    Director     of

Consolidation     [(1976        (3)   SCC   119]       in   which   the

question of registration of a family arrangement

had fallen for consideration.                    Their Lordships

held that a family arrangement may be even oral in

which     case      no      registration           is       necessary.
                                                                       16

Registration would be necessary only if the terms

of the family arrangement are reduced into writing

but there also a distinction should be made between

a document containing the terms and recitals of a

family arrangement made under the document and a

mere      Memorandum            prepared       after       the    family

arrangement had already been made, either for the

purpose      of     recording      or   for    information        of    the

Court for making necessary mutation.                           In such a

case,    the      Memorandum       itself     does       not   create    or

extinguish any right in the immovable properties

and, therefore, neither does it fall within the

mischief of Section 17(2) of the Registration Act

nor     is     it     compulsorily         registrable.            Their

Lordships         went     on    further      to    conclude     that        a

document, which was no more than a memorandum of

what     had        been    agreed      to,        did    not    require

registration.
                                                         17

18. While holding as above, Their Lordships also

indicated that even if a Family Arrangement, which

required registration was not registered, it would

operate as a complete estoppel against the parties,

which had taken advantage thereof.


19. Learned counsel urged that as had been held by

this Court in Mandali Ranganna vs. T. Ramachandra

[(2008) 11 SCC 1], while considering an application

for grant of injunction, the Court has not only to

take   into     consideration      the    basic     elements

regarding existence of a prima face case, balance

of convenience and irreparable injury, it has also

to   take   into   consideration    the   conduct    of   the

parties since grant of injunction is an equitable

relief.     It was observed that a person who had kept

quiet for a long time and allowed another to deal

with the property exclusively, ordinarily would not

be entitled to an order of injunction.            Mr. Ranjit

Kumar also referred to the recent decision of this
                                                             18

Court in Kishorsinh Ratansinh Jadeja                vs. Maruti

Corpn. & Ors. [(2009) 5 Scale 229], in which the

observation made in Mandali Ranganna's case (supra)

was referred to with approval.


20. From    the    submissions     made   on    behalf   of   the

respective parties and the materials on record, we

have to see whether the Courts below, including the

High     Court,     were   justified      in    refusing      the

appellant's       prayer   for   grant    of   interim   orders

pending the hearing of the suit.               Though the Deed

of Family Settlement has been heavily relied upon

by the Courts below and the Respondents herein, it

will have to be considered whether reliance could

have been placed on the same since the same was not

registered,       though   it    sought   to    apportion     the

shares of the respective co-sharers.              It has also

to be seen whether the document could at all be

relied    upon    since    all   the   co-sharers    were     not

signatories thereto.
                                                                 19

21. As far as the first point is concerned, since

the same is a question of fact and has, on a prima

facie basis, been accepted by the Courts below, we

are not inclined to interfere with the prima facie

view taken that an oral partition had been effected

which had been subsequently reduced into writing as

a   Memorandum        and     not    as   an   actual     Deed     of

Partition.       Of course, these observations are made

only for the purpose of disposal of the Special

Leave Petition and not for disposal of the suit

itself.


22. As far as the second question is concerned, a

Deed    of    Family    Settlement        seeking   to    partition

joint     family      properties      cannot   be   relied       upon

unless       signed    by    all    the   co-sharers.       In    the

instant case, admittedly, the Respondent No.8, Sau.

Pratibha,      was     not    a    signatory   to   the    Deed    of

Settlement dated 8th February, 1967, although, she

is the daughter of Bapu Saheb Kante by his first
                                                               20

wife.   As was held in the case of M.N. Aryamurthy

(supra),     under     the    Hindu     Law     if     a   Family

Arrangement is not accepted unanimously, it fails

to become a binding precedent on the co-sharers.

Both Mr. Vivek Tankha and Mr. Anoop G. Chaudhary,

learned Senior Advocates, brought this point to our

notice to indicate that all the co-sharers had not

consented to the Deed of Family Settlement which

could not, therefore, be relied upon. The argument

would have had        force had it not been for the fact

that    acting    upon       the    said      Settlement,       the

appellants had also executed sale deeds in respect

of the suit property.         Having done so, it would not

be open to the appellants to now contend that the

Deed of Family Settlement was invalid.


23. Now,     coming    to    the   question    of     balance    of

convenience and inconvenience and irreparable loss

and injury, it has to be kept in mind that the

Respondent    No.10    has    already      acquired    rights    in
                                                               21

respect of the share of the Respondent Nos.8 and 9

to the suit property and in the event an interim

order   is   passed        preventing      development    of     the

portion of the property acquired by it, it would

suffer irreparable loss and injury since it would

not be able to utilize the property till the suit

is disposed of, which could take several years at

the original stage, and, thereafter, several more

years   at   the    appellate     stages.          The   appellant

herein has been sufficiently protected by the order

of the High Court impugned in this appeal.                     While

the Respondent No.10 has been permitted to carry

out construction activities over the disputed land,

it   has     been        restrained     from       alienating     or

transferring       the    property    or    from    creating     any

third party right therein during the pendency of

the suit.


24. As mentioned hereinabove, there is yet another

question which goes against the case made out by
                                                                   22

the appellant, viz., that after the Deed of Family

Settlement,        even   the     appellant         has      executed

Conveyances    in    respect     of   portions        of    the     suit

property,     thereby     supporting         the     case     of     the

respondent that the Deed of Family Settlement dated

8th February, 1976, had not only been accepted by

the parties, but had also been acted upon.


25. In such circumstances, we are not inclined to

interfere with the order passed by the High Court,

but we are also concerned that the suit should not

be delayed on one pretext or the other, once such

interim order is granted.


26. We,     accordingly,       dispose    of       the     appeal     by

directing the Trial Court to dispose of the pending

suit within a year from the date of communication

of this judgment.         In the meantime, the co-sharers

to the suit property shall not create any third

party     rights     or   encumber       or        transfer        their

respective    shares      in    the   suit     property       in    any
                                                                        23

manner whatsoever and all transactions undertaken

in respect thereof shall be subject to the final

decision in the suit.


27. There will be no order as to costs.




                                 ................................................J.
                                          (ALTAMAS KABIR)



                                 ................................................J.
                                          (CYRIAC JOSEPH)
New Delhi,



Dated: December 15, 2009.

availability of alternative remedy of criminal revision under Section 397 Cr.P.C. by itself cannot be a good ground to dismiss an application under Section 482 of Cr.P.C.=In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in the case of Dhariwal Tobacco Products Ltd. (supra) and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in the case of Sanjay Bhandari (supra) passed by another learned Single Judge on 05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which is impugned in the connected Criminal Appeal arising out of Special Leave Petition No. 4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane & Ors. are allowed. The impugned common order dated 02.04.2009 passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 of the Cr.P.C. in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months. Since that order has been set aside while allowing those appeals hence the order impugned in this appeal also has to be set aside for the same very reasons and for the view taken by us in respect of scope and ambit of Section 482 of the Cr.P.C. Accordingly this appeal is also allowed and impugned order is set aside with the same directions as in the other two appeals.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  842  OF 2016
               [Arising out of S.L.P.(Crl.) No. 3314 of 2009]

Prabhu Chawla                                           …..Appellant

      Versus

State of Rajasthan & Anr.                           …..Respondents


                                   W I T H


                      CRIMINAL APPEAL NO.  844  OF 2016
               [Arising out of S.L.P.(Crl.) No. 4744 of 2009]


                                     AND


                   CRIMINAL APPEAL NOS.  845-846  OF 2016
            [Arising out of S.L.P.(Crl.) Nos. 1554-1555 of 2011]




                               J U D G M E N T




SHIVA KIRTI SINGH, J.


Leave granted.
First we take up appeals of Prabhu Chawla and Jagdish Upasane  and  ors.  as
these two criminal appeals seek to assail a common  order  dated  02.04.2009
whereby the High Court of Judicature for Rajasthan at Jodhpur dismissed  the
petitions preferred by the appellants under  Section  482  of  the  Code  of
Criminal Procedure (for brevity ‘Cr.P.C.’). High Court  held  the  petitions
to be not maintainable in view of judgment of Rajasthan High  Court  in  the
case of Sanjay Bhandari v. State of  Rajasthan[1]  (impugned  in  the  other
connected appeal) holding that availability  of  remedy  under  Section  397
Cr.P.C. would make a petition under Section 482 Cr.P.C. not maintainable.
While considering all these matters at  the  SLP  stage,  on  05.07.2013,  a
Division Bench found the impugned order of the High Court to be against  the
law  stated  in  Dhariwal  Tobacco  Products  Ltd.  and  Ors.  v.  State  of
Maharashtra and another[2]. In that case the Division Bench  concurred  with
the proposition of law that availability of alternative remedy  of  criminal
revision under Section 397 Cr.P.C. by itself cannot  be  a  good  ground  to
dismiss an application under Section 482 of Cr.P.C. But it  noticed  that  a
later Division Bench judgment of this Court in the case of Mohit alias  Sonu
and another v. State of Uttar Pradesh and another[3] apparently held to  the
contrary that when an order under assail is not interlocutory in nature  and
is amenable to the revisional jurisdiction of  the  High  Court  then  there
should be a bar in invoking the inherent jurisdiction of the High Court.  In
view of such conflict, these cases were directed to  be  placed  before  the
Hon’ble Chief Justice for reference to a larger Bench and that  is  how  the
matters are before this Bench for resolving the conflict.
The facts of these appeals need not detain  us  because  in  our  considered
opinion the view taken by the Rajasthan High Court in the impugned order  is
contrary to law and therefore matters will have to be remanded back  to  the
High Court for fresh consideration on merits within the  scope  of  inherent
powers available to the High  Court  under  Section  482  Cr.P.C.  It  would
suffice to note that in both  these  appeals,  the  miscellaneous  petitions
before the High Court arose out of  an  order  dated  30.11.2006  passed  by
learned Judicial Magistrate No. 3, Jodhpur in  the  complaint  no.  1669  of
2006, whereby it took cognizance against the appellants under  Section  228A
of the Indian Penal Code and summoned  them  through  bailable  warrants  to
face further proceedings in the case.
Mr. P.K. Goswami learned senior advocate for the  appellants  supported  the
view taken by  this  Court  in  the  case  Dhariwal  Tobacco  Products  Ltd.
(supra). He pointed out that in paragraph 6 of this judgment Justice  S.  B.
Sinha took note of several earlier judgments of this  Court  including  that
in R.P. Kapur v. State of Punjab[4] and Som Mittal v. Govt. of  Karnataka[5]
for coming to the conclusion that  “only  because  a  revision  petition  is
maintainable, the same by itself,  ………,  would  not  constitute  a  bar  for
entertaining an application under Section 482  of  the  Code.”  Mr.  Goswami
also placed strong reliance upon judgment of Krishna Iyer, J. in a  Division
Bench in the case of Raj Kapoor and Ors v. State and Ors[6].   Relying  upon
judgment of a Bench of three Judges in the  case  of  Madhu  Limaye  v.  The
State of Maharashtra[7] and quoting  therefrom,  Krishna  Iyer,  J.  in  his
inimitable style made the law crystal clear in paragraph 10  which  runs  as
follows:
“10.    The first question is as to whether the inherent power of  the  High
Court under Section 482 stands repelled  when  the  revisional  power  under
Section 397 overlaps. The opening  words  of  Section  482  contradict  this
contention because nothing of the Code, not even  Section  397,  can  affect
the amplitude of the inherent power  preserved  in  so  many  terms  by  the
language of Section 482. Even so, a general principle pervades  this  branch
of law when a specific provision is made: easy resort to inherent  power  is
not right except under compelling circumstances. Not that there  is  absence
of jurisdiction but that inherent power should not invade  areas  set  apart
for specific power under the same Code. In Madhu  Limaye  v.  The  State  of
Maharashtra  this Court has exhaustively and, if I may  say  so  with  great
respect, correctly discussed and delineated the law  beyond  mistake.  While
it is true that Section  482  is  pervasive  it  should  not  subvert  legal
interdicts written into the  same  Code,  such,  for  instance,  in  Section
397(2). Apparent conflict may arise  in  some  situations  between  the  two
provisions and a happy solution
“would be to say that the bar provided in sub-section  (2)  of  Section  397
operates only in exercise  of  the  revisional  power  of  the  High  Court,
meaning thereby that the High Court  will  have  no  power  of  revision  in
relation to any interlocutory order. Then in  accordance  with  one  or  the
other principles enunciated above, the inherent power will come  into  play,
there being no other provision in the Code for the redress of the  grievance
of the aggrieved party. But then, if the order  assailed  is  purely  of  an
interlocutory  character  which  could  be  corrected  in  exercise  of  the
revisional power of the High Court under the 1898 Code, the High Court  will
refuse to exercise its inherent  power.  But  in  case  the  impugned  order
clearly brings about a situation which is an abuse of  the  process  of  the
Court or for the purpose of securing the ends  of  justice  interference  by
the High Court is absolutely necessary, then nothing  contained  in  Section
397(2) can limit or affect the exercise of the inherent power  by  the  High
Court. But such cases would be few and far  between.  The  High  Court  must
exercise the inherent power very sparingly.  One  such  case  would  be  the
desirability of the quashing of a criminal proceeding  initiated  illegally,
vexatiously or as being without jurisdiction”.
In short, there is no total ban on the  exercise  of  inherent  power  where
abuse of the process of the court or other extraordinary  situation  excites
the court’s jurisdiction. The limitation is  self-restraint,  nothing  more.
The policy of the law is clear that interlocutory orders, pure  and  simple,
should  not  be  taken  up  to  the  High  Court  resulting  in  unnecessary
litigation and delay.  At  the  other  extreme,  final  orders  are  clearly
capable of being considered  in  exercise  of  inherent  power,  if  glaring
injustice stares the court in the face. In between is  a  tertium  quid,  as
Untwalia, J. has pointed out as for example, where it is more than a  purely
interlocutory order and less than a final disposal. The present  case  falls
under that category where the accused complain  of  harassment  through  the
court’s process. Can we state that  in  this  third  category  the  inherent
power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10)
“The answer is obvious that the bar will not operate to  prevent  the  abuse
of the process of the Court and/or to secure the ends of justice. The  label
of the petition filed by an aggrieved party is immaterial.  The  High  Court
can examine the matter in an appropriate case  under  its  inherent  powers.
The present case undoubtedly falls for exercise of the  power  of  the  High
Court in accordance with Section  482  of  the  1973  Code,  even  assuming,
although not accepting, that invoking  the  revisional  power  of  the  High
Court is impermissible.”
I am, therefore clear in my mind that the inherent power is not rebuffed  in
the case situation before us. Counsel on both sides, sensitively  responding
to  our  allergy  for  legalistics,  rightly  agreed  that   the   fanatical
insistence on the formal filing of a copy of the order under cessation  need
not take up this court’s time. Our conclusion concurs  with  the  concession
of counsel on both sides that merely because a copy of  the  order  has  not
been produced, despite its presence in the records in the court, it  is  not
possible for me to hold that the entire  revisory  power  stands  frustrated
and the inherent power stultified.”

In our considered view any attempt to explain the  law  further  as  regards
the issue relating to  inherent  power  of  High  Court  under  Section  482
Cr.P.C. is unwarranted. We would simply reiterate that  Section  482  begins
with a non-obstante clause to state: “Nothing in this Code shall  be  deemed
to limit or affect the inherent powers  of  the  High  Court  to  make  such
orders as may be necessary to give effect to any order under this  Code,  or
to prevent abuse of the process of any Court  or  otherwise  to  secure  the
ends of justice.” A fortiori, there can be no total ban on the  exercise  of
such wholesome jurisdiction where, in the words of Krishna Iyer,  J.  “abuse
of the process of the Court or other  extraordinary  situation  excites  the
court’s jurisdiction. The limitation is self-restraint,  nothing  more.”  We
venture to add a further reason in support.  Since Section  397  Cr.P.C.  is
attracted against all orders  other  than  interlocutory,  a  contrary  view
would limit the availability of inherent powers under  Section  482  Cr.P.C.
only to petty interlocutory  orders!  A  situation  wholly  unwarranted  and
undesirable.
As  a  sequel,  we  are  constrained  to  hold  that  the  Division   Bench,
particularly in paragraph 28, in the case of Mohit alias  Sonu  and  another
(supra) in respect of inherent power of the High Court  in  Section  482  of
the Cr.P.C. does not state the  law  correctly.  We  record  our  respectful
disagreement.


In our considered opinion the learned Single Judge of the High Court  should
have followed the law laid down by  this  Court  in  the  case  of  Dhariwal
Tobacco Products Ltd. (supra) and other earlier cases which were  cited  but
wrongly ignored them in preference to a judgment of that Court in  the  case
of Sanjay Bhandari  (supra)  passed  by  another  learned  Single  Judge  on
05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which  is
impugned in the connected Criminal  Appeal  arising  out  of  Special  Leave
Petition No. 4744 of 2009. As a result, both the appeals, one  preferred  by
Prabhu Chawla and the other by Jagdish  Upasane  &  Ors.  are  allowed.  The
impugned  common  order  dated  02.04.2009  passed  by  the  High  Court  of
Rajasthan is set aside and the matters are remitted back to the  High  Court
for fresh hearing of the petitions under Section 482 of the Cr.P.C.  in  the
light of law explained above and for disposal in accordance with law.  Since
the matters have remained pending for long, the High Court is  requested  to
hear and decide the matters expeditiously, preferably within six months.


The impugned order in the third appeal, dated 05.02.2009 passed by the  High
Court of Judicature for Rajasthan  at  Jodhpur  has  been  relied  upon  and
followed while passing the order dated 02.04.2009 impugned in the other  two
appeals. Since that order has been set aside while  allowing  those  appeals
hence the order impugned in this appeal also has to be  set  aside  for  the
same very reasons and for the view taken by  us  in  respect  of  scope  and
ambit of Section 482 of the Cr.P.C. Accordingly this appeal is also  allowed
and impugned order is set aside with the same directions  as  in  the  other
two appeals.

                       …………………………………….J.
                       [J. CHELAMESWAR]


                       ……………………………………..J.
                            [SHIVA KIRTI SINGH]


                       ……………………………………..J.
                            [ABHAY MANOHAR SAPRE]

New Delhi.
September 05, 2016.

-----------------------
[1]
      [2] 2009 (1) CrLR (Raj.) 282
[3]
      [4] (2009) 2 SCC 370
[5]
      [6] (2013) 7 SCC 789
[7]
      [8] AIR 1960 SC 866
[9]
      [10] (2008) 3 SCC 574
[11]
      [12]  (1980) 1 SCC 43
[13]
      [14]  (1977) 4 SCC 551