whether the qualification of BA Telugu literature as a single subject from Dr. B.R. Ambedkar Open University can be considered as equivalent to bachelor’s degree with Telugu as main subject. We are in agreement with Mr. Rao that the memo dated 03.10.2005 is a clarification pertaining to transfer of teachers/officers and rationalisation of schools. The directions given by the Government to the Director of School Education which are referred to supra would clearly show that the degree issued by Dr. B.R. Ambedkar Open University was considered to be equivalent to any other degree in respect of a selection conducted in the year 2003. If the Government has considered the degree issued by the Dr. B.R. Ambedkar Open University as equivalent to any other degree for DSC- 2003 and permitted appointment of similarly situated persons, there is no reason why the Respondent can be said to be ineligible. There is nothing in the Rules which makes a degree issued by Dr. B.R. Ambedkar Open University which is recognised by the University Grants Commission (UGC) from being considered as equivalent to any other degree.

                                                              Non-Reportable


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No.3094   of 2017
                  (Arising out of SLP (C) No.26876 of 2016)



STATE OF ANDHRA PRADESH AND ORS.
                                                           .... Appellant(s)
      Versus
SHAIK MAHIBULLA SHARIEF
                                                             ….Respondent(s)




                               J U D G M E N T


L. NAGESWARA RAO, J.
      Leave granted.
      The Appellants were directed  by  the  Andhra  Pradesh  Administrative
Tribunal at  Hyderabad  (hereinafter  referred  to  as  the  ‘Tribunal’)  to
consider the Respondent for appointment  to  the  post  of  Language  Pandit
(Telugu)  Grade-II.   The  High  Court  confirmed  the  said  direction   by
dismissing the Writ Petition filed by the Appellants.  The  Appellants  have
filed this Appeal challenging the correctness of the judgment  of  the  High
Court.
2.    The Appellant-State issued a notification for recruitment of  teachers
in Government schools.  The Respondent applied  for  the  post  of  Language
Pandit (Telugu).  He participated in the selection process and secured  rank
No.1195.  His name  was  included  in  the  provisional  selection  list  of
Language Pandit  (Telugu)  Grade-II  under  the  B.C.  (E)  quota  for  East
Godavari District. There were five posts  earmarked  for  B.C.(E)  category.
The Respondent was one of two candidates selected in the said category.   As
the Respondent was not selected and  appointed,  he  approached  the  Andhra
Pradesh Administrative  Tribunal  by  filing  O.A.  No.10250  of  2012.   An
interim order was  passed  by  the  Tribunal  on  26.12.2012  by  which  the
Appellants were  directed  to  consider  the  case  of  the  Respondent  for
appointment as Language Pandit (Telugu).
3.    The  Respondent  passed  BA  with  History,  Economics  and  Political
Science in the year 1998  and  B.Ed.  with  Telugu  and  Social  Studies  as
methodology subjects  in  the  year  2005.  He  also  passed  BA  in  Telugu
literature as a single subject  from  Dr.  B.R.  Ambedkar  Open  University,
Hyderabad in the year 2007.  He also completed  MA  in  Telugu  in  distance
mode from  Dr.  B.R.  Ambedkar  Open  University  in  the  year  2013.   The
Appellants contended  before  the  Tribunal  that  the  Respondent  was  not
eligible for appointment as he did not  possess  the  requisite  educational
qualifications.  The  Appellants  relied  upon  the  Andhra  Pradesh  Direct
Recruitment for the post of Teachers  (Scheme  of  Selection)  Rules,  2012.
According to Rule 4 (2) (iii) (a)  of  the  said  Rules,  the  qualification
prescribed for the post of Language Pandit (Telugu) is as follows:-
“Must possess a Bachelor’s Degree with Telugu as the main subject or one  of
the three equal optional subjects or Bachelor’s Degree in Oriental  Language
in Telugu (BOL) or its equivalent or a Post Graduate Degree  in  Telugu  and
B.Ed  with  Telugu  as  methodology  or  Telugu  Pandit  Training   or   its
equivalent.”

4.    The Tribunal held that the  Respondent  possessed  B.Ed.  degree  with
Telugu  and  Social  Studies  as  methodology  subjects  and  BA  in  Telugu
literature as  single  subject  from  Dr.  B.R.  Ambedkar  Open  University.
According to the Tribunal, the Respondent was eligible for being  considered
for appointment as Language Pandit (Telugu) as the Rules did not  disqualify
a degree from Dr. B.R. Ambedkar Open University.  On the basis of  the  said
findings, the Tribunal directed the Appellants to consider the case  of  the
Respondent for appointment to the post of Language  Pandit  (Telugu)  Grade-
II.

5.    The Appellants challenged the judgment of the  Tribunal  by  filing  a
Writ Petition which was dismissed by the High Court by  its  judgment  dated
22.04.2016.  The High Court approved the judgment of  the  Tribunal  on  the
ground  that  the  Respondent  possessed  a  degree  exclusively  in  Telugu
literature and it cannot be said that he was not  qualified  when  a  person
who possessed a degree in Oriental Language in Telugu  was  qualified.   The
High Court also found fault with the Government in not seeking  the  opinion
of Dr. B.R. Ambedkar Open University whilst determining the  equivalence  of
the degree granted by it.   The High Court also held that the  Tribunal  had
correctly interpreted the Rules. The correctness  of  the  judgment  of  the
High Court is assailed in this appeal.

6.    The appointment to the post of Language Pandit  (Telugu)  is  governed
by the Andhra Pradesh Direct Recruitment for the post  of  Teachers  (Scheme
of Selection) Rules,  2012.  Rule  4(2)  (iii)  (a)  contemplates  that  the
educational  qualifications  for  appointment  to  the  above  post   is   a
bachelor’s degree in Telugu as main  subject  or  one  of  the  three  equal
optional subjects or bachelor’s  degree  in  oriental  language  in  Telugu,
(BOL) or its equivalent or a post graduate degree in Telugu and  B.Ed.  with
Telugu as methodology or Telugu Pandit  Training  or  its  equivalent.   The
Respondent passed BA with  History,  Economics  and  Political  Science  and
holds a bachelor’s degree in Telugu  as  a  single  subject  from  Dr.  B.R.
Ambedkar Open University.  He also has B.Ed.  with  Telugu  as  methodology.
The question that arises for consideration in this case is whether the  said
bachelor’s degree in Telugu literature as a single  subject  from  Dr.  B.R.
Ambedkar Open University is equivalent to a bachelor’s  degree  with  Telugu
from other Universities.   Reliance is placed by  Ms.Prerna  Singh,  counsel
for the Appellant-State  on  memo  No.18103/Ser.VI-1/2005  dated  03.10.2005
issued by the Government of Andhra Pradesh.  The said  memo  pertains  to  a
qualification issued  with  regard  to  transfer  of  teachers/officers  and
rationalisation of schools in respect of single subject  certificate  course
of Dr. B.R. Ambedkar Open University.  As per para 7 of the said  memo,  the
certificate issued by Dr. B.R. Ambedkar Open University after completion  of
a single subject course was  not  a  degree  and  that  the  single  subject
certificate holders of Dr. B.R. Ambedkar Open University were  not  eligible
for promotion to the post of School Assistant.  As the degree  possessed  by
the Respondent was not equivalent to a degree from  the  other  Universities
as prescribed by the Rules, the Counsel for  the  Appellant-State  submitted
that the Respondent  was  not  eligible  for  appointment  to  the  post  of
Language Pandit (Telugu).  Mr. V.V.S. Rao, learned Senior Counsel  appearing
for  the  Respondent  referred  to  G.O.Rt.No.556,  Education   (SE.SER.VII)
Department dated 04.10.2005 by which the Government permitted the  Director,
School Education, Andhra Pradesh, Hyderabad to appoint candidates  who  have
a bachelor’s degree and a B.Ed. degree and have acquired  a  single  subject
certificate in the relevant subject from Dr. B.R. Ambedkar Open  University.
 The said orders were made applicable for DSC-2003 candidates only. He  also
referred to a memo dated 24.05.2008 of the Government of Andhra  Pradesh  by
which the Director of School Education, Hyderabad was permitted  to  appoint
selected candidates of DSC-2003 who have acquired single  subject  (English)
certificate for the post of School Assistant (English) as  per  their  merit
in the notified vacancies.  The learned Senior Counsel  submitted  that  the
memo dated 03.10.2005 is not applicable to fresh appointments as it  relates
to rationalisation of schools and transfer of teachers.

7.    We are of the opinion that the judgment of the  High  Court  does  not
warrant interference. Admittedly, the Respondent possesses BA with  History,
Economics and Political Science and B.Ed. with Telugu and Social Studies  as
methodology subjects.  He also  possesses  BA  in  Telugu  literature  as  a
single subject from Dr. B.R. Ambedkar Open University.   The  question  that
falls for our consideration  is  whether  the  qualification  of  BA  Telugu
literature as a single subject from Dr. B.R. Ambedkar  Open  University  can
be considered as  equivalent  to  bachelor’s  degree  with  Telugu  as  main
subject.  We are in agreement with Mr. Rao that the  memo  dated  03.10.2005
is  a  clarification  pertaining  to  transfer  of   teachers/officers   and
rationalisation of schools.  The directions given by the Government  to  the
Director of School Education which are referred to supra would clearly  show
that the degree issued by Dr. B.R. Ambedkar Open University  was  considered
to be equivalent to any other degree in respect of a selection conducted  in
the year 2003.  If the Government has considered the degree  issued  by  the
Dr. B.R. Ambedkar Open University as equivalent to any other degree for DSC-
2003 and permitted appointment of similarly situated persons,  there  is  no
reason why the Respondent can be said to be ineligible.   There  is  nothing
in the Rules  which  makes  a  degree  issued  by  Dr.  B.R.  Ambedkar  Open
University which is recognised by the  University  Grants  Commission  (UGC)
from being considered as equivalent to any other degree.

8.    For the abovementioned reasons, the Appeal is dismissed.   No costs.


........................................J
        [S. A. BOBDE]




                    ..……................................J
                                                   [L. NAGESWARA RAO]

New Delhi,
February 22, 2017

The Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as “the SICA”) had been repealed by the SICA Repeal Act, 2003. However, it is only by Notification dated 25.11.2016 that the repeal has been given effect to on and from 1.12.2016. Under Section 4(b) of the repeal Act, all proceedings before the B.I.F.R. or the Appellate Authority, as the case may be, stood abated and in respect of such abated proceedings provisions have been made to enable the company to seek a reference as per provisions of Part VI-A of the Companies Act, 1956 within 180 days from the date of the repeal Act. Interestingly, the provisions of Part VI-A of the Companies Act, 1956 which, though brought about by the Companies (Second Amendment) Act of 2002 had/have not been made effective. In fact, effective 1.11.2016 Section 4(b) of the Repeal Act has been amended by Section 252 of the Insolvency and Bankruptcy Code of 2016 (hereinafter referred to as “the Code”) and provisions have been made therein akin to those in repealed Section 4(b) except that reference by a company in respect of an abated proceeding is to be made to the National Company Law Tribunal within 180 days of the Code coming into force. Such a reference is required to be dealt with in accordance with the provisions of the Code. The code has been enacted and given effect to w.e.f. 1.12.2016. Relevant details thereof will be noticed hereinafter.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3055 OF 2017
                 (Arising out of S.L.P.(C) No.1587 of 2015)



BANK OF NEW YORK MELLON
LONDON BRANCH                       ...APPELLANT


                                   VERSUS



ZENITH INFOTECH LIMITED         ...RESPONDENT

                                  JUDGMENT



RANJAN GOGOI, J.



1.    Leave granted.



2.    At the very outset, it will be necessary to take note of the  relevant
statutory enactments and changes that have come about after hearing  of  the
case had been  concluded.  The  said  enactments  and  the  changes  in  the
existing enactments give rise to a somewhat altered  scenario,  as  will  be
noticed hereinafter, though essentially the core of the  question  that  has
arisen remains substantially unaffected.

3.     The  Sick  Industrial  Companies  (Special  Provisions)   Act,   1985
(hereinafter referred to as “the  SICA”)  had  been  repealed  by  the  SICA
Repeal Act, 2003. However, it is only by Notification dated 25.11.2016  that
the repeal has been given effect to on and  from  1.12.2016.  Under  Section
4(b) of  the  repeal  Act,  all  proceedings  before  the  B.I.F.R.  or  the
Appellate Authority, as the case may be, stood  abated  and  in  respect  of
such abated proceedings provisions have been made to enable the  company  to
seek a reference as per provisions of Part VI-A of the Companies  Act,  1956
within 180 days  from  the  date  of  the  repeal  Act.  Interestingly,  the
provisions of Part VI-A of the Companies Act,  1956  which,  though  brought
about by the Companies (Second Amendment) Act  of  2002  had/have  not  been
made effective. In fact, effective 1.11.2016 Section 4(b) of the Repeal  Act
has been amended by Section 252 of the Insolvency  and  Bankruptcy  Code  of
2016 (hereinafter referred to as “the Code”) and provisions have  been  made
therein akin to those in repealed Section 4(b) except that  reference  by  a
company in respect of an abated proceeding is to be  made  to  the  National
Company Law Tribunal within 180 days of the Code coming into force.  Such  a
reference is required to be dealt with in accordance with the provisions  of
the Code. The code has been enacted and given effect  to  w.e.f.  1.12.2016.
Relevant details thereof will be noticed hereinafter.

4.    At this stage, it will also be necessary to  take  note  of  the  fact
that the  National  Company  Law  Tribunal  envisaged  under  the  Companies
(Second  Amendment)  Act  of  2002  has  been  authorized  to  exercise  and
discharge its powers and functions with effect from 1.6.2016 and,  in  fact,
the  Tribunals  with  Benches  throughout  the  country  have   since   been
constituted and are presently functioning.

5.    Having noticed the above position, we may now turn to  the  provisions
of the Insolvency and Bankruptcy Code, 2016.  It  is  a  comprehensive  Code
enacted as the Preamble states, to

“consolidate and amend the laws relating to  reorganisation  and  insolvency
resolution of corporate persons, partnership  firms  and  individuals  in  a
time bound manner for maximisation of value of assets of  such  persons,  to
promote entrepreneurship, availability of credit and balance  the  interests
of all the stakeholders including alteration in the  order  of  priority  of
payment of Government dues and to establish  an  Insolvency  and  Bankruptcy
Board of India, and for matters connected therewith or incidental thereto”.



6.    Section 3(8) defines a ‘Corporate Debtor’ to mean “a corporate  person
who owes a debt to any person.”

Section 5(1) of the Code  defines  “Adjudicating  Authority”  to  means  the
National  Company  Law  Tribunal  constituted  under  Section  408  of   the
Companies Act, 2013. The definition  of  “corporate  applicant”  in  Section
5(5) includes a “corporate debtor.”  Under  Section  6,  amongst  others,  a
“corporate debtor” who has committed a default may file an application  with
the Adjudicating Authority for initiating a corporate insolvency  resolution
process. Such a process  may  also  be  initiated  by  others,  including  a
financial creditor, against the  corporate  debtor  in  respect  of  default
committed by the corporate debtor. Under Section 7 (Explanation-1),  default
includes “a default in respect of a financial debt  owed  not  only  to  the
applicant financial creditor but to any  other  financial  creditor  of  the
corporate debtor. Under Section 13 once the  Adjudicating  Authority  admits
the application of the corporate applicant [defined by Section  5(5)]  filed
under Section 10, the said Authority may proceed  to  declare  a  moratorium
for the purposes referred to in Section 14. Section 14 is in  the  following
terms:

“14(1) Subject to provisions of sub-sections (2) and (3), on the  insolvency
commencement  date,  the  Adjudicating  Authority  shall  by  order  declare
moratorium for prohibiting all of the following, namely:—

the institution of suits or continuation of  pending  suits  or  proceedings
against the corporate debtor including execution of any judgment, decree  or
order in any court of law, tribunal, arbitration panel or other authority;

transferring, encumbering, alienating  or  disposing  of  by  the  corporate
debtor any of its assets or any legal right or beneficial interest therein;

any action to foreclose, recover or enforce any  security  interest  created
by the corporate debtor in respect of  its  property  including  any  action
under  the  Securitisation  and  Reconstruction  of  Financial  Assets   and
Enforcement of Security Interest Act, 2002;

the recovery of any property by an owner or lessor where  such  property  is
occupied by or in the possession of the corporate debtor.

(2) The supply of essential goods or services to  the  corporate  debtor  as
may be specified shall not be terminated or suspended or interrupted  during
moratorium period.

(3) The provisions of sub-section (1) shall not apply to  such  transactions
as may be notified by  the  Central  Government  in  consultation  with  any
financial sector regulator.

(4) The order of moratorium shall have effect from the date  of  such  order
till the completion of the corporate insolvency resolution process:

Provided that where at any time during the corporate  insolvency  resolution
process period, if the Adjudicating Authority approves the  resolution  plan
under sub-section (1) of section 31 or passes an order  for  liquidation  of
corporate debtor under section  33,  the  moratorium  shall  cease  to  have
effect from the date of such approval or liquidation order, as the case  may
be.”



Section 16 of the Code visualizes the appointment of an  interim  resolution
professional  to  manage  the  affairs  of  the  corporate   debtor.    Such
appointment is to be made by the Adjudicating Authority.

Under Section 20 of the Code, the interim resolution professional  appointed
under Section 16 is to manage the operations of the corporate  debtor  as  a
going concern and make every endeavour to protect and preserve the value  of
the property. Section  25  which  enumerates  the  duty  of  the  resolution
professional is in the following terms:

“25(1)      It shall be the duty of the resolution professional to  preserve
and protect the assets of the  corporate  debtor,  including  the  continued
business operations of the corporate debtor.

     (2)      For  the  purposes  of   sub-section   (1),   the   resolution
professional shall undertake the following actions, namely:—

(a) take immediate custody and control of all the assets  of  the  corporate
debtor, including the business records of the corporate debtor;

(b) represent and act on behalf of the corporate debtor with third  parties,
exercise rights for the benefit of the corporate debtor in judicial,  quasi-
judicial or arbitration proceedings;

 (c)  raise interim finances subject to the approval  of  the  committee  of
creditors under section 28;

 (d)  appoint accountants, legal or other professionals  in  the  manner  as
specified by Board;

 (e)  maintain an updated list of claims;

 (f)  convene and attend all meetings of the committee of creditors;

 (g)  prepare the information memorandum in accordance with section 29;

 (h)  invite prospective lenders, investors, and any other  persons  to  put
forward resolution plans;

 (i)  present all resolution plans at  the  meetings  of  the  committee  of
creditors;

(j)   file application for avoidance  of  transactions  in  accordance  with
Chapter III, if any; and

(k)   such other actions as may be specified by the Board.

Section 30 of the Code contemplates submission  of  a  resolution  plan  and
approval  thereof  by  the  Adjudicating   Authority   failing   which   the
liquidation process of the corporate debtor as contemplated in  Chapter  III
of the Code would be required to be initiated.

7.    The above provisions of the Code have been noticed in some detail  and
the provisions thereof, so far as the same are material for the purposes  of
the present case, have also been  extracted  and  highlighted.  We  may  now
proceed to examine and see what has happened in the present case.

8.    Briefly the facts relevant are as follows.

On 23.07.2013 the respondent No. 1  company-Zenith  Infotech  Ltd.  filed  a
Reference before the  Board  for  Industrial  and  Financial  Reconstruction
(hereinafter for short “the Board”) under Section 15 of the SICA.  The  said
application was refused registration  by  the  Registrar  of  the  Board  on
12.08.2013 on the ground that respondent No.1 company is not  an  industrial
company within the meaning of Section 3(e) and 3(f) of the SICA.  An  appeal
was filed by the respondent No. 1 company before the Secretary of the  Board
against the order of Registrar which was  dismissed  on  13.09.2013.   There
was a further appeal to the Chairman of the Board against the order  of  the
Secretary.  Though the maintainability  of  the  second  appeal  before  the
Chairman of the Board would be in serious doubt in view  of  the  provisions
of Regulation 19(4) read with sub Regulation 8 (1) and (2) of Regulation  19
of the Board for Industrial and Financial Reconstruction  Regulations,  1987
(hereinafter for short “the Regulations”) it will not be necessary  to  deal
with the said question in the present proceedings except to state  that  the
Chairman of the  Board  also  dismissed  the  second  appeal  filed  by  the
respondent No. 1 company by order dated 03.04.2014.

9.    What would be of significance is the events that had transpired  while
the matter was before the authorities of the Board,  namely,  the  Secretary
and Chairman of the Board. It appears that  on  30.07.2013  a  petition  for
winding up of the respondent No.1 company was admitted by the High Court  of
Bombay and the order of admission was affirmed  by  the  Division  Bench  in
appeal.  The approach to  this  Court  also  was  not  successful  with  the
Special Leave Petition filed by the  respondent  No.1  company  having  been
dismissed on 30.09.2013. Thereafter, it appears that on 13.12.2013 the  High
Court of Bombay passed orders for winding up of the respondent No.  1  which
was upheld in appeal by the Division Bench of the High Court on  23.04.2014.
 Though, a stay was ordered by the High Court of its winding up  order  till
31.08.2014, it would appear that the High Court understood the said  interim
order to have been vacated  by  efflux  of  time,  in  the  absence  of  any
specific order of extension.  Thereafter the Official Liquidator came to  be
appointed by the High Court on 02.09.2014.

10.   The orders of the Secretary and Chairman of the  Board  rejecting  the
application  for  Reference  filed  by  the  Respondent  No.1  company  were
subjected to a challenge in a writ petition filed by the  respondent-company
before the Delhi High Court  out  of  which  the  present  proceedings  have
arisen.

11.   Two questions arose before  the  High  Court  of  Delhi  in  the  writ
petition.

The first was whether the dismissal of the application for Reference by  the
Registrar, Secretary and Chairman of the Board was within  the  jurisdiction
of the said authorities. The second question, which was  implicit  if  there
was to be a positive answer to the first, is whether in view  of  the  order
of winding up passed by the Company Court,  and  affirmed  by  the  Division
Bench of the Bombay High Court, there is any further scope for  registration
of the Reference sought for by  the  respondent  No.  1  company  under  the
provisions of the SICA if the order declining registration by the  aforesaid
authorities is to be understood to be non est.

12.   The High Court, by the impugned order, took the view  that  under  the
provisions of the SICA read with the  Regulations,  the  Registrar  and  the
other authorities like the Secretary and the Chairman of the Board have  not
been  conferred  any  power  of  adjudication  which  would  necessarily  be
involved in determining the question  as  to  whether  the  respondent  No.1
company is an industrial company within the  meaning  of  Section  3(e)  and
3(f) of the  SICA.   Since  an  adjudicatory  function  and  role  has  been
performed by the Registrar, whose order has been affirmed by  the  Secretary
and the Chairman of the Board and as registration of  the  Reference  sought
for by the respondent No. 1 company was  refused  on  that  basis  the  said
orders are non est in law.  Regarding the second question,  the  High  Court
of Delhi relying on the decisions of this Court  in  Real  Value  Appliances
Ltd. Vs. Canara Bank and Others[1] and  Rishabh  Agro  Industries  Ltd.  Vs.
P.N.B. Capital Services Ltd.[2] came to the conclusion that the  winding  up
order passed by the Company Court would not foreclose the proceedings  under
the SICA and registration of a Reference under Section 15  and  the  inquiry
under Section 16 can still be made.  The question that was agitated  in  the
present appeal is consequential  to  the  above  determination  and  revolve
around the application of Section 22 of SICA to bar  further  steps  in  the
winding up proceeding before the High Court. The  above  question  would  no
longer survive in the context of the provisions of the now repealed Act  but
would still require an answer from the stand point of the provisions of  the
Insolvency and Bankruptcy Code in force with effect from 1.12.2016.

13.   The first question, namely, the one  with  regard  to  the  power  and
jurisdiction of the Registrar and Secretary to refuse  registration  of  the
application for reference made by the  respondent  company  on  the  grounds
mentioned above may now be taken up. To answer the aforesaid  question,  the
following provisions of SICA may be noticed:

 “3.  Definitions.—

In this Act, unless the context otherwise requires,—

(e)    “industrial  company”  means  a  company  which  owns  one  or   more
industrial undertakings;

(f)  “industrial  undertaking”  means  any  undertaking  pertaining   to   a
scheduled industry carried on in one or more factories by  any  company  but
does not include-

any ancillary industrial undertaking as defined in clause (aa) of Section  3
of the Industries (Development and Regulation) Act, 1951 (65 of 1951); and

a small scale industrial  undertaking  as  defined  in  clause  (j)  of  the
aforesaid section 3;


(n)   “scheduled industry” means any of the  industries  specified  for  the
time being  in  the  First  Schedule  to  the  Industries  (Development  and
Regulation) Act, 1951 (65 of 1951);

12.   Constitution of Benches of Board or Appellate Authority.—

(1) The jurisdiction, powers and authority of the  Board  or  the  Appellate
Authority may be exercised by Benches thereof.

(2) The Benches shall be constituted by the Chairman and  each  Bench  shall
consist of not less than two Members.
(3) If the Members of a Bench differ in opinion  on  any  point,  the  point
shall be decided according to the opinion of the majority,  if  there  is  a
majority, but if the Members are  equally  divided,  they  shall  state  the
point or points on which they differ, and make a reference to  the  Chairman
of the Board or, as the case may  be,  the  Appellate  Authority  who  shall
either hear the point or points himself or refer the  case  for  hearing  on
such point or points by one or more of the other Members and such  point  or
points shall be decided according to the opinion  of  the  majority  of  the
Members who have heard the case including those who first heard it.

13.   Procedure of Board and Appellate Authority.—

(1) Subject to the provisions of this Act, the Board or, as the case may
be, the Appellate Authority, shall have powers to regulate—

(a) the procedure and conduct of the business;

(b) the procedure  of  the  Benches,  including  the  places  at  which  the
sittings of the Benches shall be held;

(c) the delegation to one or more Members of such  powers  or  functions  as
the Board or, as the case may be, the Appellate Authority may specify.

(2) In particular and without prejudice to the generality of  the  foregoing
provisions, the powers of the Board or, as the case may  be,  the  Appellate
Authority, shall include the power to determine the extent to which  persons
interested or claiming  to  be  interested  in  the  subject-matter  of  any
proceeding before it may be allowed to be present or to be heard, either  by
themselves or by their representatives  or  to  cross-examine  witnesses  or
otherwise to take part in the proceedings.

(3) The Board or the Appellate Authority shall,  for  the  purposes  of  any
inquiry or for any other purpose under this Act, have  the  same  powers  as
are vested in a civil court under the Code of Civil Procedure,  1908  (5  of
1908) while trying suits in respect of the following matters, namely:—

the summoning and enforcing the attendance of any witness and examining  him
on oath;
the  discovery  and  production  of  document  or  other   material   object
producible as evidence;

(c) the reception of evidence on affidavit;

(d) the requisitioning of any public record from any court or office;

(e) the issuing of any commission for the examination of witnesses;

(f) any other matter which may be prescribed.
14. Proceedings  before  Board  or  Appellate  Authority  to   be   judicial
proceedings.—

The Board or the Appellate Authority shall be deemed to  be  a  civil  court
for the purposes of section 195 and Chapter XXVI of  the  Code  of  Criminal
Procedure, 1973 (2 of 1974) and every proceeding before  the  Board  or  the
Appellate Authority shall be deemed to be a judicial proceeding  within  the
meaning of sections 193 and 228 and for the purposes of section 196  of  the
Indian Penal Code (45 of 1860).

15. Reference to Board.—

(1) When an industrial company has become a  sick  industrial  company,  the
Board of Directors of the company, shall, within sixty days  from  the  date
of finalisation of  the  duly  audited  accounts  of  the  company  for  the
financial year as at the  end  of  which  the  company  has  become  a  sick
industrial company, make a reference to the Board for determination  of  the
measures which shall be adopted with respect to the company:  Provided  that
.....  .....                 ..... “


14.   In addition, Section 16 deals with the  inquiry  to  be  made  by  the
Board for  determining  whether  an  industrial  company  has  become  sick,
whereas Section 17 deals with the  power  of  the  Board  to  make  suitable
orders on completion of inquiry.

15.   Under Section  13  of  the  SICA  the  Board  has  enacted  a  set  of
Regulations, namely, the Board for Industrial and  Financial  Reconstruction
Regulations, 1987. Chapter II  of  the  Regulations  deals  with  References
sought under Section 15 of the Act (SICA) and contains provisions as to  how
such References are required to be  made  and  dealt  with.   Regulation  19
would need to be extracted to show what is contemplated to be  the  role  of
the Registrar and the  Secretary  on  receipt  of  a  Reference.   The  said
provision therefore is extracted below.

“19.(1) Every reference to the Board under sub-section  (1)  of  section  15
shall be made—

(i) in Form A in respect of an industrial company other  than  a  Government
Company;

(ii)in Form AA in respect of a Government Company,]
    and shall be accompanied by five further copies thereof  alongwith  four
copies each of all the enclosures thereto.

[(2) Every reference to the Board under sub-section (2) of section 15  shall
be made—

(i) in Form B in respect of an industrial company other  than  a  Government
Company;

(ii)in Form BB in respect of a Government Company,]

and shall be accompanied by  five  further  copies  thereof  alongwith  four
copies each of all the enclosures thereto.

(3) A reference may be filed either by delivering it at the  office  of  the
Board or by sending it by registered post.

[(4) On receipt of a reference, the Secretary, or as the case  may  be,  the
Registrar shall cause to be endorsed on each reference, the  date  on  which
it is filed or received in the office of the Board.

(5) If on scrutiny, the reference is found to  be  in  order,  it  shall  be
registered, assigned a serial  number  and  submitted  to  the  Chairman  or
assigning it to a Bench. Simultaneously,  remaining  information/  documents
required, if any, shall be called for from the informant.

(6) If on scrutiny,  the  reference  is  not  found  to  be  in  order,  the
Secretary or, as the case may be, the Registrar may, by  order,  decline  to
register the reference and shall communicate the same to the informant.

(7) A reference declined to be registered shall be deemed not to  have  been
made.]

(8) (1) An appeal against the order of the Registrar declining  to  register
a reference shall be made by the aggrieved person to  the  Secretary  within
fifteen days of communication to him of such an order.

(2) An appeal against the order of the Secretary  declining  to  register  a
reference shall be made by the  aggrieved  person  to  the  Chairman  within
fifteen days of communication to him of such an  order  and  the  Chairman's
decision thereon shall be final.”


16.   From the provisions of  Regulation  19(5)  it  would  appear  that  on
receipt  of  a  Reference  under  Regulation  19(4)  the  Secretary  or  the
Registrar, as may be, after making an endorsement of the date on  which  the
same has been received in the office of the Board  is  required  to  make  a
scrutiny and, thereafter, if found to be in order,  to  register  the  same;
assign a serial number thereto and place the same before  the  Chairman  for
being assigned to a Bench.   After  completion  of  the  aforesaid  exercise
under Regulation 19(5) the later part of the  said  Regulation  contemplates
that simultaneously, remaining information/documents required, if  any,  may
be called for from the applicant.  Regulation 20 contained  in  Chapter  III
and Regulation 21 contained in Chapter IV deal with the manner in which  the
proceedings of inquiry after registration of the Reference is to be made.

17.   Regulation 19(5)  extracted  above,  requires  the  Registrar  or  the
Secretary, as may be, to make an endorsement of the date of receipt  of  the
Reference [Regulation 19(4)] and thereafter on scrutiny thereof to  register
the same and place before the Chairman for  being  referred  to  the  Bench.
When the Regulations framed under the statute vests in the Registrar or  the
Secretary of the Board the power to “scrutinize”  an  application  prior  to
registration thereof and thereafter to register and place  the  same  before
the Bench, we do not see how such power of scrutiny can be understood to  be
vesting in any of the said authorities the power to adjudicate the  question
as to whether a company is an  industrial  company  within  the  meaning  of
Section 3(e) read with 3(f) and 3(n) of the SICA.  A claim  to  come  within
the ambit of the aforesaid provisions of the SICA i.e. to be  an  industrial
company, more often than not, would be a contentious issue. In  the  present
case, it certainly was. The specific stand of the respondent No.  1  company
in this regard need not detain the Court save and except to state that by  a
detailed description of the  manufacturing  process  the  respondent  No.  1
company had sought to contend that it is  an  industrial  company.   Surely,
the rejection of the above stand could have been made only by a  process  of
adjudication which power and jurisdiction clearly and undoubtedly is  vested
by the SICA and the Regulations framed thereunder in a Bench  of  the  Board
and not in authorities  like  the  Registrar  and  the  Secretary.  In  this
regard, one can only be reminded of the observations made by this  Court  in
paras 13 and 14 in the case of Jamal Uddin Ahmad  Vs.  Abu  Saleh  Najmuddin
and Another[3] which may be extracted below.

“13. The functions discharged by a High Court can be  divided  broadly  into
judicial and administrative functions. The  judicial  functions  are  to  be
discharged essentially by the Judges as per  the  Rules  of  the  Court  and
cannot be delegated. However, administrative functions need not  necessarily
be  discharged  by  the  Judges  by  themselves,  whether  individually   or
collectively or in a  group  of  two  or  more,  and  may  be  delegated  or
entrusted by authorization to subordinates unless there be some rule of  law
restraining such delegation or authorization. Every High Court  consists  of
some administrative and ministerial staff which is as much  a  part  of  the
High Court as  an  institution  and  is  meant  to  be  entrusted  with  the
responsibility of  discharging  administrative  and  ministerial  functions.
There can be “delegation” as also there can be “authorization” in favour  of
the Registry and the officials therein  by  empowering  or  entrusting  them
with authority or by permitting a few things to be done by them for  and  on
behalf of the Court so as to aid the Judges in discharge of  their  judicial
functioning.  Authorization  may  take  the  form  of  formal  conferral  or
sanction or may be by way of approval or  countenance.  Such  delegation  or
authorization is not a matter of mere convenience but a necessity at  times.
The Judges are already overburdened with the  task  of  performing  judicial
functions and the constraints on their time  and  energy  are  so  demanding
that it is in public interest to allow them to devote  time  and  energy  as
much as possible in discharging their judicial functions, relieving them  of
the need for diverting their limited resources of time and  energy  to  such
administrative  or  ministerial  functions,  which,  on  any  principle   of
propriety, logic, or necessity are not required necessarily to be  performed
by the Judges. Receiving a cause or a document and making it presentable  to
a Judge for the purpose of hearing or  trial  and  many  a  functions  post-
decision, which functions are administrative and ministerial in nature,  can
be and are generally entrusted or made over to be discharged  by  the  staff
of the High Court, often by making a provision in the  Rules  or  under  the
orders of the Chief Justice  or  by  issuing  practice  directions,  and  at
times, in the absence of rules, by sheer practice. The practice gathers  the
strength of law and the older the practice the greater is the strength.  The
Judges rarely receive personally any document required to  be  presented  to
the Court. Plaints, petitions, memoranda or other documents required  to  be
presented to the Court are invariably  received  by  the  administrative  or
ministerial staff, who would also carry out a preliminary scrutiny  of  such
documents so as to find that they are in order and then make  the  documents
presentable to the Judge, so that the valuable time  of  the  Judge  is  not
wasted over such matters as do not need to be dealt with personally  by  the
Judge.

14. The judicial function entrusted to a Judge is  inalienable  and  differs
from an administrative or ministerial function which  can  be  delegated  or
performance whereof may be secured through authorization.

“The judicial function consists in the interpretation of  the  law  and  its
application by rule or discretion to the facts  of  particular  cases.  This
involves the ascertainment of facts in  dispute  according  to  the  law  of
evidence. The organs which the  State  sets  up  to  exercise  the  judicial
function are called courts of  law  or  courts  of  justice.  Administration
consists of the operations, whatever their intrinsic nature  may  be,  which
are performed by administrators; and administrators are all State  officials
who are neither legislators nor judges.”

(See Constitutional and Administrative Law, Phillips and Jackson, 6th  Edn.,
p. 13.) P. Ramanatha Aiyar’s Law Lexicon defines judicial  function  as  the
doing of something in the nature of or in the course of an action in  court.
(p. 1015) The distinction between “judicial” and “ministerial acts” is:

If a Judge dealing with a particular matter has to exercise  his  discretion
in arriving at a decision, he is acting judicially; if on  the  other  hand,
he is merely required to do a particular act and is precluded from  entering
into the merits of the matter, he is said to be acting  ministerially.  (pp.
1013-14)

Judicial function is exercised  under  legal  authority  to  decide  on  the
disputes, after hearing the parties, maybe after making an enquiry, and  the
decision affects the rights and obligations of the parties. There is a  duty
to act judicially. The Judge  may  construe  the  law  and  apply  it  to  a
particular  state  of  facts  presented  for  the   determination   of   the
controversy. A ministerial act, on the other hand, may be defined to be  one
which a person performs in a given state of facts, in a  prescribed  manner,
in obedience to the mandate of a legal authority, without regard to, or  the
exercise of, his own judgment upon the  propriety  of  the  act  done.  (Law
Lexicon,  ibid.,  p.  1234).  In  ministerial  duty  nothing  is   left   to
discretion;  it  is  a  simple,  definite  duty.  Presentation  of  election
petition to the High Court within the meaning  of  Section  81  of  the  Act
without anything more would mean delivery of election petition to  the  High
Court through one of its officers competent or  authorized  to  receive  the
same on behalf of and for the High Court.  Receiving  an  election  petition
presented under Section 81 of the Act is certainly not a  judicial  function
which needs to be performed by a Judge alone.  There  is  no  discretion  in
receiving an election petition. An election petition,  when  presented,  has
to be received. It is  a  simple,  definite  duty.  The  date  and  time  of
presentation and the name of the  person  who  presented  (with  such  other
particulars as may be prescribed) are to be endorsed truly and  mechanically
on the document presented. It is a ministerial function simpliciter. It  can
safely be left to be performed by one of the administrative  or  ministerial
staff of the High Court which is as much a part of the High  Court.  It  may
be delegated or be performed  through  someone  authorized.  The  manner  of
authorization is not prescribed.”

18.   The High Court, in view of what has been discussed above, was  correct
in coming to  the  conclusion  that  the  refusal  of  registration  of  the
reference   sought   by   the   respondent   Company   by   the   Registrar,
Secretary/Chairman of the Board was non-est  in  law.  The  reference  must,
therefore, understood to be pending before the Board on  the  relevant  date
attracting the provisions of Section 252 of the  Insolvency  and  Bankruptcy
Code.

19.   The second question arising before the  High  Court,  namely,  whether
the reference before the Board stood foreclosed by the order of  winding  up
of the  respondent Company and  the  appointment of liquidator was  answered
in the negative relying on Real Value Appliances  Ltd.  (supra)  and  Rishab
Agro Industries Ltd. (supra). The core principles  laid  down  in  the  said
decisions of the Court,  namely,  that  immediately  on  registration  of  a
reference under Section 15 of the erstwhile SICA, the enquiry under  Section
16 is deemed to have commenced and that the winding up  proceedings  against
a company stood terminated only  after  orders  under  Section  481  of  the
Companies Act, 1956, are passed, will have to  be  noticed  to  adjudge  the
correctness of the said view of the High Court. In any event, the  aforesaid
question becomes redundant in view of  our  conclusion  that  the  reference
sought by the respondent Company must be deemed to have been pending on  the
date of commencement of the Insolvency and  Bankruptcy  Code,  particularly,
Section 252 thereof (effective 1.11.2016).

20.   We, therefore, dispose of the appeal by holding that  it  would  still
be open to the respondent Company to seek its remedies under the  provisions
of Section 252 of the Code read with what is laid down in Sections  13,  14,
20 and 25. We make it clear  that  we  should  not  be  understood  to  have
expressed any opinion on the scope and meaning of  the  said  or  any  other
provisions of the Code and the adjudicating authority i.e. National  Company
Law Tribunal would be free and, in fact, required  to  decide  on  the  said
questions in such manner as may be considered appropriate.

21.   Appeal, consequently, is disposed of accordingly.

                                                     ....................,J.
                                                              (RANJAN GOGOI)


                                                     ....................,J.
                                                       (ABHAY MANOHAR SAPRE)
NEW DELHI
FEBRUARY 21, 2017.

-----------------------
[1]   [2] (1998) 5 SCC 554
[3]   [4] (2000) 5 SCC 515
[5]   [6] (2003) 4 SCC 257

There is no dispute about the fact that the father of the respondent who entered into an agreement on his behalf (and deposed in evidence) carried on moneylending business. The consistent case of the appellants in reply to the legal notice, in the written statement as well as in the course of evidence was that there was a transaction of a loan with the father of the respondent. The evidence of DW2 was to the following effect : “The defendant was having a relationship with plaintiff’s father, Babu Dhanaraj in respect of loan transaction. Already the Defendant No. 2 has taken loan from Babu Dhanapathy Raj and bought a lorry and was driving it. In this case, in order to return the loan of Rs. 1,00,000/- as per the instruction of Babu Dhanapathy Raj only on the basis of trust, the Exhibit P1 agreement to sell was executed. In the said document, I have put my signature as a witness.” During the course of the evidence, the appellants produced material (Exhibit D3) indicating that the value of the property was six lakhs thirty thousand on 20 November 2006. The agreed consideration between the parties was rupees one lakh sixty thousand of which an amount of rupees sixty thousand was paid at the time of the execution of the agreement. The sale transaction was to be completed within three years against the payment of the balance of rupees one lakh. The appellants also relied upon Exhibit D2 which indicated that the value of the property as on 1 April 1999. These aspects were adverted to in the judgment of the trial court and the first appellate court while setting out the evidence, but have evidently not been borne in mind in determining as to whether a decree for specific performance could judiciously have been passed.= In our view the material which has been placed on record indicates that the terms of the contract, the conduct of parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.The decree for specific performance shall accordingly stand set aside and shall stand substituted with a direction to the appellants to pay a sum of rupees fifteen lakhs to the respondent in lieu of specific performance.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO .3049   OF 2017
                 [Arising out of SLP (C) No. 32285 of 2015]


JAYAKANTHAM & OTHERS                   .....APPELLANTS



                                   Versus

ABAYKUMAR            .....RESPONDENT



                               J U D G M E N T



Dr D Y CHANDRACHUD, J

Leave granted



2     This appeal arises from a judgment rendered by a learned Single  Judge
of the Madras High Court on 11 June 2015 in a second  appeal  under  Section
100 of the Code of Civil Procedure, 1908. Dismissing the second appeal,  the
learned Single Judge  confirmed  the  judgment  of  the  Principal  District
Judge, Villupuram by which an appeal against the judgment of the  sub-Judge,
Kallakurichi was dismissed. The trial court decreed the  suit  for  specific
performance instituted by the respondent against the appellants.

3     The subject matter of the suit for specific performance is a  property
bearing survey No. 314/1A at Kallakurichi  village  admeasuring  735  square
feet upon which a residential house is situated. An agreement  to  sell  was
entered into between the appellants and the  father  of  the  respondent  on
                             2 June 1999. The consideration agreed upon  was
rupees one lakh sixty thousand of which an amount of rupees  sixty  thousand
was received as advance. The balance was to be paid when the sale  deed  was
executed. Time for completion of the sale transaction was reserved  until  2
June 2002. A legal notice seeking performance of the  agreement  was  issued
on 7 May 2002. In response, the defence that was set up was inter alia  that
the  agreement  to  sell  was  executed  only  as  a  security  for  a  loan
transaction.

4     In support of the plea for specific performance,  the  father  of  the
respondent was examined as PW1. Evidence on behalf  of  the  appellants  was
adduced by DW1 and DW2. The trial  court  by  a  judgment  and  order  dated
      5 January 2007 decreed the suit for specific performance and  directed
the appellants to execute a sale  agreement  in  favour  of  the  respondent
against receipt of the balance consideration of rupees one lakh.  The  trial
court noted that the agreement to sell had been registered and rejected  the
defence that it is merely a document executed by way of security for a  loan
transaction. In the view of the  trial  court,  there  was  nothing  in  the
agreement to indicate that it was executed merely by way of a  security.   A
finding of fact was arrived at to the effect that the respondent  was  ready
and willing to perform the agreement. The suit was decreed. The judgment  of
the trial court was confirmed in appeal on 26 August 2008 by  the  Principal
District Judge, Villupuram.

5     A second appeal was initially admitted on a  substantial  question  of
law but was eventually dismissed by a learned Single  Judge  of  the  Madras
High Court on 11 June 2015.

6     When the Special Leave Petition came  up  on  29  January  2016,  this
Court observed that there was no error in the finding of facts  recorded  by
three courts concurrently and hence those findings could not be reversed  on
merits. However, the alternative submission which was  urged  on  behalf  of
the appellants was that the suit property is the only property held by  them
and has an extremely high value. The appellants stated that they  are  ready
to pay a sum of rupees ten lakhs or even  more  to  retain  it.  Notice  was
issued to the respondent limited to the above contention.

7     On behalf of the appellants, it has been submitted that this is a  fit
and proper case where specific performance ought not to  be  ordered  and  a
decree for compensation in lieu thereof would meet the ends of  justice.  It
was urged that specific performance of an agreement need not necessarily  be
ordered merely because it is lawful to do so and  the  matter  lies  in  the
judicious exercise of discretion of the court.  In  support  of  this  plea,
reliance was placed on several circumstances; primary among them  being  the
fact that it is not in  dispute  that  the  father  of  the  respondent  who
entered into the transaction and deposed as PW1(the respondent  being  about
sixteen years of age at the time of execution of the agreement)  carried  on
money lending business. Opposing this submission, it was urged on behalf  of
the respondent that while it is true that his  father  is  a  money  lender,
this by itself would  not  disable  the  respondent  from  seeking  specific
performance. Moreover, it was urged that the mere fact that there  has  been
an escalation of  land  prices  would  not  be  a  justification  to  refuse
specific performance.

8     While evaluating whether  specific  performance  ought  to  have  been
decreed in the present case, it would be  necessary  to  bear  in  mind  the
fundamental principles of law. The court is not bound to  grant  the  relief
of specific performance merely because it is lawful to do so. Section  20(1)
of the Specific Relief Act, 1963 indicates that the jurisdiction  to  decree
specific performance is discretionary. Yet, the discretion of the  court  is
not arbitrary but is “sound and  reasonable”,  to  be  “guided  by  judicial
principles”. The exercise of discretion is capable of being corrected  by  a
court of appeal in the hierarchy  of  appellate  courts.  Sub-section  2  of
Section 20 contains a  stipulation  of  those  cases  where  the  court  may
exercise its discretion not to grant specific performance. Sub-Section 2  of
Section 20 is in the following terms :

“Section 20 (2).  The following are cases in which the  court  may  properly
exercise discretion not to decree specific performance-

(a) where the terms of the contract or the conduct of  the  parties  at  the
time of entering into the contract or the other  circumstances  under  which
the contract was entered  into  are  such  that  the  contract,  though  not
voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would  involve  some  hardship  on
the defendant which he did not foresee, whereas  its  non-performance  would
involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances  which
though not rendering the contract voidable, makes it inequitable to  enforce
specific performance.”



However,  explanation   1   stipulates   that   the   mere   inadequacy   of
consideration, or the  mere  fact  that  the  contract  is  onerous  to  the
defendant or improvident in  its  nature,  will  not  constitute  an  unfair
advantage within the meaning of clause (a) or hardship  within  the  meaning
of clause (b). Moreover,  explanation  2  requires  that  the  issue  as  to
whether the performance of a contract involves  hardship  on  the  defendant
has to be determined with reference to the  circumstances  existing  at  the
time of the contract, except where the hardship has been caused from an  act
of the plaintiff subsequent to the contract.


9     The precedent on the subject is elucidated below :


(i)   In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's  Son
and Ors[1] ,this Court held that :

“…14.  Section 20 of  the  Specific  Relief  Act,  1963  preserves  judicial
discretion of Courts as to decreeing specific performance. The Court  should
meticulously consider all facts and circumstances of the case. The Court  is
not bound to grant specific performance merely because it is  lawful  to  do
so. The motive behind the litigation should also  enter  into  the  judicial
verdict. The Court should take care to  see  that  it  is  not  used  as  an
instrument of oppression to have an unfair advantage to the plaintiff…”

(ii)  A similar view was adopted by  this  Court  in  Sardar  Singh v.  Smt.
Krishna Devi and another[2] :

“…14. Section 20(1) of the Specific  Relief  Act,  1963  provides  that  the
jurisdiction to decree specific performance is discretionary, and the  court
is not bound to grant such relief, merely because it is  lawful  to  do  so;
but the discretion of the court is not arbitrary but sound  and  reasonable,
guided by judicial principles and  capable  of  correction  by  a  court  of
appeal. The grant of relief of specific performance  is  discretionary.  The
circumstances  specified  in  Section 20 are  only  illustrative   and   not
exhaustive. The court would take into  consideration  the  circumstances  in
each case, the conduct of the parties and the respective interest under  the
contract.”



(iii) Reiterating the position  in  K.  Narendra v. Riviera  Apartments  (P)
Ltd[3],this Court held thus :

“…29. Performance of the contract involving some hardship on  the  defendant
which he did not foresee while non-performance involving  no  such  hardship
on the plaintiff, is one  of  the  circumstances  in  which  the  court  may
properly  exercise  discretion  not  to  decree  specific  performance.  The
doctrine of comparative hardship has been  thus  statutorily  recognized  in
India. However, mere inadequacy of consideration or the mere fact  that  the
contract is onerous to the defendant or improvident in its  nature  ,  shall
not constitute an unfair advantage to the plaintiff over  the  defendant  or
unforeseeable  hardship  on  the   defendant.   The   principle   underlying
Section 20 has been summed up by this Court in Lourdu Mari  David  v.  Louis
Chinnaya Arogiaswamy by stating that the decree for specific performance  is
in the discretion of the  Court  but  the  discretion  should  not  be  used
arbitrarily; the discretion should be exercised on sound principles  of  law
capable of correction by an appellate court.”



(iv)    These   principles   were   followed   by   this   Court   in   A.C.
Arulappan v. Smt. Ahalya Naik[4], with the following observations :

“…..7. The jurisdiction to decree specific relief is discretionary  and  the
court can consider various circumstances to decide whether  such  relief  is
to be granted. Merely because it is lawful to  grant  specific  relief,  the
court need not grant the order for  specific  relief;  but  this  discretion
shall not be exercised in  an  arbitrary  or  unreasonable  manner.  Certain
circumstances have been mentioned in Section 20(2) of  the  Specific  Relief
Act, 1963 as to under what  circumstances  the  court  shall  exercise  such
discretion. If under the terms of the contract the plaintiff gets an  unfair
advantage over the defendant, the court may not exercise its  discretion  in
favour of the plaintiff. So also, specific relief may not be granted if  the
defendant would be put to undue hardship which he did  not  foresee  at  the
time of agreement. If it is inequitable to grant specific relief, then  also
the court would desist from granting a decree to the plaintiff.”

……..

“…..15. Granting of specific performance is an equitable relief, though  the
same is now governed by the statutory  provisions  of  the  Specific  Relief
Act, 1963. These equitable principles are nicely incorporated in Section  20
of the  Act.  While  granting  a  decree  for  specific  performance,  these
salutary guidelines shall be in the forefront of the mind of the court…..”



(v)   A Bench of three Judges of  this  Court  considered  the  position  in
Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors.[5], and held thus :

“…..6. It is true that grant of decree of specific performance lies  in  the
discretion of the court and it is also well settled that it  is  not  always
necessary to grant specific performance simply for the  reason  that  it  is
legal to do so. It is further well settled that the court in its  discretion
can impose any reasonable  condition  including  payment  of  an  additional
amount by one party to the  other  while  granting  or  refusing  decree  of
specific performance. Whether the purchaser shall  be  directed  to  pay  an
additional amount to the seller or converse would depend upon the facts  and
circumstances of a case. Ordinarily, the plaintiff is not to be  denied  the
relief of specific performance only on account of  the  phenomenal  increase
of price during the pendency of litigation. That may be, in  a  given  case,
one  of  the  considerations  besides  many  others   to   be   taken   into
consideration for refusing the decree of specific performance. As a  general
rule, it cannot be held that ordinarily the plaintiff cannot be  allowed  to
have, for her alone, the entire benefit of phenomenal increase of the  value
of the property during the pendency of the litigation. While  balancing  the
equities, one of the considerations to be kept in view is as to who  is  the
defaulting party. It is also to be borne in mind whether a party  is  trying
to take undue advantage over the other as also  the  hardship  that  may  be
caused to the defendant by directing  specific  performance.  There  may  be
other circumstances on which parties may not have any control. The  totality
of the circumstances is required to be seen.”



10    In the present case, the  material  on  the  record  contains  several
aspects which will have to weigh in the balance. There is no  dispute  about
the fact that the father of the respondent who entered into an agreement  on
his behalf (and deposed in evidence) carried on moneylending  business.  The
consistent case of the appellants in reply  to  the  legal  notice,  in  the
written statement as well as in the course of evidence was that there was  a
transaction of a loan with the father of the  respondent.  The  evidence  of
DW2 was to the following effect :

“The defendant was having  a  relationship  with  plaintiff’s  father,  Babu
Dhanaraj in respect of loan transaction. Already the  Defendant  No.  2  has
taken loan from Babu Dhanapathy Raj and bought a lorry and was  driving  it.
In this case, in order to return the loan  of  Rs.  1,00,000/-  as  per  the
instruction of Babu Dhanapathy Raj only on the basis of trust,  the  Exhibit
P1 agreement to sell was executed. In the  said  document,  I  have  put  my
signature as a witness.”



During  the  course  of  the  evidence,  the  appellants  produced  material
(Exhibit D3) indicating that the value of the property was six lakhs  thirty
thousand  on                 20  November  2006.  The  agreed  consideration
between the parties was rupees one lakh sixty thousand of  which  an  amount
of rupees sixty thousand was paid at  the  time  of  the  execution  of  the
agreement. The sale transaction was  to  be  completed  within  three  years
against the payment of the balance of rupees one lakh. The  appellants  also
relied upon Exhibit D2 which indicated that the value of the property as  on
1 April 1999. These aspects were adverted to in the judgment  of  the  trial
court and the first appellate court while  setting  out  the  evidence,  but
have evidently not been borne in mind in determining as to whether a  decree
for specific performance could judiciously have been passed.

11    In our view the material which has been  placed  on  record  indicates
that the terms of the contract, the  conduct  of  parties  at  the  time  of
entering into the agreement and circumstances under which the  contract  was
entered into gave the plaintiff an unfair  advantage  over  the  defendants.
These circumstances make it inequitable to enforce specific performance.

12    For the above reasons a decree for  the  payment  of  compensation  in
lieu of specific performance would meet the ends  of  justice.  As  we  have
noted earlier the father of the respondent paid an amount  of  rupees  sixty
thousand to the appellants in June 1999 of the  total  agreed  consideration
of Rs. 1.60 lakhs. The appellants have voluntarily offered to pay an  amount
of rupees ten lakhs, as just compensation in lieu of  specific  performance.
In our view, the ends of justice would be met by  directing  the  appellants
to pay to the respondent an amount  of  rupees  fifteen  lakhs  in  lieu  of
specific performance.

13    The decree for specific performance shall accordingly stand set  aside
and shall stand substituted with a direction to the appellants to pay a  sum
of rupees fifteen lakhs to the respondent in lieu of  specific  performance.
The amount shall be paid within two months from the date  of  receipt  of  a
copy of this judgment. Upon the expiry of the  period  of  two  months,  the
amount shall carry interest at the rate  of  9  per  cent  per  annum,  till
payment or realization.

14    The appeal shall stand allowed in  these  terms.  There  shall  be  no
order as to costs.



...….......................................J
                                                      [ARUN MISHRA]




       ..............................................J
                                                      [Dr D Y  CHANDRACHUD]





New Delhi
February 21, 2017


ITEM NO.1A               COURT NO.1               SECTION XII


               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS


Civil Appeal No. 3049/2017 @
Petition(s) for Special Leave to Appeal (C) No(s).  32285/2015

(Arising out of impugned final judgment and order dated   11/06/2015  in  SA
No. 436/2009 passed by the High Court Of Madras)

JAYAKANTHAM AND ORS.                                     Petitioner(s)

                                VERSUS

ABAYKUMAR                                                 Respondent(s)

[HEARD BY HON'BLE ARUN MISHRA AND HON'BLE DR. D.Y. CHANDRACHUD, JJ.]

Date : 21/02/2017 This petition was called on for judgment today.


For Petitioner(s)            Mr. K. V. Mohan,Adv.

For Respondent(s)      Mr. A. Lakshminarayanan,AOR


            Hon'ble Dr. Justice D.Y. Chandrachud pronounced the judgment  of
the Bench comprising Hon'ble Mr. Justice Arun Mishra and His Lordship.

            Leave granted.

            For the reasons recorded in the Reportable judgment, the  appeal
is allowed.  There shall be no order as to costs.



  (Renuka Sadana)                            (Parveen Kumar)
Assistant Registrar                                           AR-cum-PS
      [Reportable signed judgment is placed on the file]


-----------------------
[1]

      [2] AIR 1987 SC 2328

[3]

      [4] (1994) 4 SCC 18
[5]

      [6] (1999) 5 SCC 77
[7]

      [8] (2001) 6 SCC 600
[9]

      [10] (2002) 8 SCC 146

The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 (National Insurance Co. Ltd. vs. Saju P. Paul, SLP© No. 20127 of 2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao(supra).”= Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that respondent No. 3-United India Insurance Company Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter respondent No. 3 - United India Insurance Company Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending Vehicle (Tata Sumo)-respondent No.1 in these very proceedings by filing execution application against the insured

        REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL No.  3047   OF 2017
                    (ARISING OUT OF SLP (C) No.5805/2013)

Manuara Khatun & Ors.                ...Appellant(s)

                             VERSUS

Rajesh Kr. Singh & Ors.                  …Respondent(s)

                                    WITH

                       CIVIL APPEAL No. 3065  OF 2017
                    (ARISING OUT OF SLP (C) No.791/2013)

Mamoni Saikia Mohanty & Ors.  ...Appellant(s)

                             VERSUS

Rajesh Kr. Singh & Ors.                      ...Respondent(s)



                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Leave granted.
2)    These appeals are filed against the common final  judgment  and  order
dated 22.06.2012 passed by the High Court of Gauhati  at  Guwahati  in  MACA
Nos. 7 and 8 of 2009 whereby the High Court dismissed the appeals  filed  by
the appellants herein for enhancement of the compensation amount awarded  by
the Motor Accident Claims Tribunal, Nagaon by order dated 05.09.2008 in  MAC
Case Nos. 653 and 652 of 2001.
3)    We herein set out  the  facts,  in  brief,  to  appreciate  the  issue
involved in these appeals.
4)    On 03.07.2001, Ismail Hussain, husband of  Manuara  Khatun  and  Nirod
Prasad Mohanty, husband of Mamoni  Saikia  Mohanty  along  with  some  other
passengers were  proceeding  towards  Guwahati  from  Nagoan  in  Tata  Sumo
bearing Registration No. AR-09-3997, when they arrived near  Jorabat,  there
was  a  head-on-collusion  between  the  Tata  Sumo  and  a  Truck   bearing
Registration No. AS-01-H-2598  coming  from  the  opposite  direction  as  a
result of which Ismail Hussain and Nirod Prasad Mohanty  died  on  the  spot
and some other passengers sustained   injuries.
5)    Manuara Khatun, wife of the Ismail Hussain and her  5  minor  children
filed Claim petition bearing  MAC  Case  No.  653  of  2001  claiming  total
compensation of Rs.55,20,400/- and Mamoni  Saikia  Mohanty,  wife  of  Nirod
Prasad Mohanty and her 3 minor children  preferred  claim  petition  bearing
MAC No. 652 of 2001 claiming total  compensation  of  Rs.54,62,500/-  before
the Motor Accident Claims  Tribunal,  Nagaon  against  Rajesh  Kumar  Singh,
owner of the Tata Sumo(respondent  No.1),  Bhadra  Kt.  Das,  owner  of  the
Truck(respondent No.2), the insurer of the Tata Sumo-United India  Insurance
Co. Ltd.(respondent No.3) and New India Assurance Company Ltd.,  Insurer  of
the Truck(respondent No.4).  The claim petitions were contested only by  the
Insurance Companies.  So far as the owners of the vehicles  were  concerned,
they remained ex parte.
6)    The Tribunal, vide award dated 05.08.2008,  partly  allowed  both  the
claim petitions and  awarded a sum  of  Rs.24,89,500/-  to  Manuara  Khatun,
wife of Ismail Khatun and Rs.24,09,500/- to Mamoni Saikia Mohanty,  wife  of
Nirod Prasad Mohanty with interest @ 7.5% p.a. from the date  of  filing  of
case till payment.  The Tribunal held that  Tata  Sumo  was  a  private  car
driven by the driver in a rash and negligent manner and  at  a  high  speed,
which resulted in the accident.  It was also held that  the  driver  of  the
Truck was not negligent in driving the  Truck.  The  Tribunal  further  held
that all the passengers including the two deceased were  traveling  in  Tata
Sumo for hire and hence they were held to be  “gratuitous  passengers”.   It
was held that due to this reason, United India Insurance Company  Ltd.,  the
insurer of Tata Sumo(offending vehicle) was not  liable.   Accordingly,  the
Insurance Company was exonerated  from  the  liability  and  the  award  was
passed only against the owner of   Tata Sumo (respondent No.1) in  both  the
claim cases. So far as the owner of the Truck(respondent No.2) and  the  New
India  Assurance  Co.  Ltd.-Insurer  of  the  Truck(respondent  No.4)   were
concerned, both were held not liable in any  manner  because,  as  mentioned
above, the driver of the Truck  was  not  found  negligent  in  driving  the
Truck.
7)    Dissatisfied with the award, appeals bearing MAC Appeal No.7  of  2009
and MAC Appeal No. 8 of 2009 under Section 173 of  the  Motor  Vehicle  Act,
1988 (hereinafter referred to as “the  Act”)  were  filed  before  the  High
Court by the claimants for enhancement of the compensation  amounts  awarded
by the Tribunal.  The other ground raised before the High Court was that  it
was the liability of the Insurance  Company  of  the  offending  vehicle  to
compensate the claimants jointly and severally with the owner  of  the  Tata
Sumo and in any event, the direction to pay the compensation by the  insurer
of offending vehicle and then to recover from its insured should  have  been
passed against the Insurer(respondent No.3).
8)    By impugned judgment, the High Court dismissed the  appeals  filed  by
the claimants  and  held  that  the  insurer  was  not  liable  because  the
passengers  or  occupants  were  being  carried  in  a  private  vehicle  as
“gratuitous passengers”.
9)    Aggrieved by  the  said  judgment,  the  claimants  have  filed  these
appeals by way of special leave petitions before this Court.
10)   Heard Mr. M.L. Lahoty, learned counsel for the  appellants,  Mr.  Ravi
Bakshi, learned counsel for respondent No.3  and  Mr.  S.L.  Gupta,  learned
counsel for respondent No.4.
11)   Learned counsel for the appellants while assailing       the  impugned
order argued only one point.  According to him, both the Courts below  erred
in not applying the    principle of "pay and  recover"  against  the  United
India Insurance Company Ltd. (insurer of the offending  vehicle-Tata  Sumo)-
Respondent No. 3 herein.  It was his submission  that  when  admittedly  the
driver of the Tata Sumo was held negligent in his driving, which caused  the
accident, the insurer of the offending vehicle-respondent No. 3 should  have
been made liable to pay the awarded  sum  or  in  any  event,  according  to
learned counsel, a direction to pay and recover the  awarded  sum  ought  to
have been issued against the Insurer  of  the  offending  vehicle.   Learned
counsel  placed  reliance  on  the  judgments  of  this  Court  in  Oriental
Insurance Co. Ltd. vs. Nanjappan & Ors., (2004) 13 SCC 224, Bhagyalakshmi  &
Ors. vs. United Insurance  Company  Ltd.  &  Anr.,  (2009)  7  SCC  148  and
Manager, National Insurance Company Limited vs. Saju P. Paul & Anr.,  (2013)
2 SCC 41 in support of this submission.
12)   In reply, learned counsel for the  respondents  (Insurance  Companies)
supported the impugned order and contended that  no  case  is  made  out  to
interfere in the impugned judgment.  It was his submission that once  it  is
held  and rightly that the Insurance  Company  is  not  liable  because  the
victims  were  travelling  in   the   offending   vehicle   as   “gratuitous
passengers”, there did not arise any occasion to pay the awarded sum to  the
claimants by the Insurance Company and nor the principle “pay  and  recover”
could be  applied  against  the  Insurance  Company  in  such  circumstances
thereby making them liable to pay the awarded sum to the claimants.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find force   in the  submission  of  the  learned
counsel for the appellants (claimants).
14)   The only question, which arises for consideration  in  these  appeals,
is whether the appellants are entitled for an order against the  Insurer  of
the offending vehicle, i.e., (respondent No. 3) to pay the  awarded  sum  to
the appellants and then to recover the said amount from the  insured  (owner
of  the  offending  vehicle-Tata   Sumo)-respondent   No.1   in   the   same
proceedings.
15)   The aforesaid  question,  in  our  opinion,  remains     no  more  res
integra. As we notice, it was subject matter of several  decisions  of  this
Court rendered by three Judge     Bench and two Judge Bench in  past,  viz.,
National Insurance Co. Ltd.  vs.  Baljit  Kaur  &  Ors.,  (2004)  2  SCC  1,
National Insurance Co. Ltd. vs. Challa Upendra Rao  &  Ors.,  (2004)  8  SCC
517, National Insurance Co. Ltd. vs. Kaushalaya Devi & Ors.,  (2008)  8  SCC
246, National Insurance Co. Ltd. vs. Roshan Lal, [Order dated  19.1.2007  in
SLP© No. 5699 of 2006], and National Insurance Co. Ltd.  vs.  Parvathneni  &
Anr., (2009) 8 SCC 785.
16)   This  question  also  fell  for  consideration  recently  in  Manager,
National Insurance Company Limited vs. Saju P. Paul & Anr., (supra)  wherein
this Court took note of entire previous case law on  the  subject  mentioned
above and examined the question in the context of Section 147  of  the  Act.
While allowing the appeal filed by the Insurance Company  by  reversing  the
judgment of the High Court, it was held on facts that since the  victim  was
travelling in offending vehicle as "gratuitous  passenger"  and  hence,  the
Insurance Company cannot be held liable to suffer the liability arising  out
of accident on the strength of the insurance  policy.  However,  this  Court
keeping in view the benevolent object of the Act and other relevant  factors
arising in the case, issued the directions against the Insurance Company  to
pay the awarded sum to the claimants and then to recover the said  sum  from
the insured in the same proceedings by applying the principle  of  “pay  and
recover”.
17)   Justice R.M. Lodha (as His Lordship then was and  later   became  CJI)
speaking for the Bench held in paras 20 and 26 as under:

“20. The next question that arises  for  consideration  is  whether  in  the
peculiar facts of this case a direction could be  issued  to  the  Insurance
Company to first satisfy the awarded amount in favour of  the  claimant  and
recover the same from the owner of the vehicle (Respondent 2 herein).

26. The pendency of consideration of the above questions by a  larger  Bench
does not mean that the course that was followed in  Baljit  Kaur,  (2004)  2
SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed,  more
so in a peculiar fact situation of this  case.  In  the  present  case,  the
accident occurred in 1993. At that time, the claimant was 28 years  old.  He
is now about 48 years. The claimant was a driver on heavy  vehicle  and  due
to the accident he has been rendered permanently disabled. He has  not  been
able to get compensation so far due to the stay order passed by this  Court.
He cannot be compelled to struggle further for recovery of the  amount.  The
Insurance Company has already deposited the entire awarded  amount  pursuant
to the order of this Court passed on 1-8-2011 (National Insurance  Co.  Ltd.
vs. Saju P. Paul, SLP© No. 20127 of  2011  and  the  said  amount  has  been
invested in a fixed deposit account. Having regard to these  peculiar  facts
of the case in hand, we are satisfied that the claimant (Respondent  1)  may
be allowed to withdraw the amount deposited by the Insurance Company  before
this  Court  along  with  accrued  interest.  The  Insurance  Company   (the
appellant) thereafter  may  recover  the  amount  so  paid  from  the  owner
(Respondent 2 herein). The recovery of the amount by the  Insurance  Company
from the owner shall be made by following the  procedure  as  laid  down  by
this Court in Challa Upendra Rao(supra).”


18)   The facts of the case at hand are somewhat identical to the  facts  of
the case mentioned supra because here also we find that  the  deceased  were
found travelling as “gratuitous passengers” in the offending vehicle and  it
was for this reason, the insurance companies were exonerated.   In  Saju  P.
Paul’s case (supra)  also  having  held  that  the  victim  was  “gratuitous
passenger”,  this  Court  issued  directions  against  the  Insurer  of  the
offending vehicle to first satisfy the awarded sum and then to  recover  the
same from the Insured in the same proceedings.
19)   Learned counsel for respondent No. 3 (United India  Insurance  Company
Ltd.), however, contended that the  facts  of  the  case  at  hand  are  not
identical to the one involved in the case of Saju P. Paul (supra) and  hence
the law laid down therein cannot be applied to the  facts  of  the  case  at
hand. Learned counsel pointed out that firstly, the awarded compensation  in
this case is quite substantial and secondly, it  is  not  yet  paid  to  the
claimants. Learned counsel also submitted that since the  question  involved
herein is referred to a larger Bench and hence this Court  should  not  give
such  directions,  as  prayed  by  the  appellants,  against  the  Insurance
Company.
20)   We find no merit in any of  the  submissions.  Firstly,  as  mentioned
above, we find marked similarity in the facts  of  this  case  and  the  one
involved in Saju P.  Paul’s  Case  (supra).  Secondly,  merely  because  the
compensation has not yet been paid to  the  claimants  though  the  case  is
quite old (16 years) like the one in Saju P. Paul’s Case (supra), it  cannot
be a ground to deny the claimants  the  relief  claimed  in  these  appeals.
Thirdly, this  Court  has  already  considered  and  rejected  the  argument
regarding not granting of the relief of the nature  claimed  herein  due  to
pendency of the reference to a larger Bench as would be clear from  Para  26
of  the judgment in  Saju  P.  Paul’s  case  (supra).  That  apart,  learned
counsel for the appellants stated at the bar that the reference made to  the
larger Bench has since been disposed of by keeping the issue undecided.   It
is for this reason also, the argument does not survive any more.
21)   It is for all these  reasons,  we  find  no  good  ground  to  take  a
different view than the one consistently being taken by this  Court  in  all
previous decisions, which are referred supra, in this regard.
22)   In view of the foregoing discussion, we  are  of  the  view  that  the
direction to United India Insurance Company (respondent No. 3) - they  being
the insurer of the offending vehicle which was  found  involved  in  causing
accident due to negligence of its driver needs to be issued  directing  them
(United India Insurance Company-respondent No.3) to first  pay  the  awarded
sum to the appellants (claimants) and then to recover the paid  awarded  sum
from the owner of the  offending  vehicle  (Tata  Sumo)-respondent  No.1  in
execution proceedings arising in this very case as per the law laid down  in
Para 26 of Saju P. Paul’s case quoted supra.
23)   Accordingly, the appeals succeed and are allowed.  Impugned  order  is
modified to the extent that respondent No. 3-United India Insurance  Company
Ltd. is accordingly directed to  pay  the  awarded  sum  to  the  appellants
(claimants).  Thereafter respondent No. 3 - United India  Insurance  Company
Ltd. would be entitled to recover the  entire  paid  awarded  sum  from  the
owner (insured) of the offending  Vehicle  (Tata  Sumo)-respondent  No.1  in
these very proceedings by filing execution application against the  insured.

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


…...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
February 21, 2017
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