Gujarat High Court
State Bank Of India vs Dhiren Prakash Kajriwal Special Power ... on 23 June, 2025
NEUTRAL CITATION
C/SCA/4391/2010 ORDER DATED: 23/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4391 of 2010
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STATE BANK OF INDIA
Versus
DHIREN PRAKASH KAJRIWAL SPECIAL POWER OF ATTORNEY HOLD &
ORS.
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Appearance:
MR TEJAS SATTA WITH MR AC GANDHI(322) for the Petitioner(s) No. 1
MR VIKRAM J THAKOR(2221) for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/06/2025
ORAL ORDER
1. The present writ application has been filed under Article 227 of the Constitution of India seeking the following relief:-
"(A) Call for records and proceedings of Execution Petition No. 117/2009 of the City Civil Court, Ahmedabad and be further pleased to quash and set aside (i) the impugned order dated 5/3/2010 passed below Execution Petition No. 117/2009, (2) order below applications Exh. 31 and 32 both dated 5/3/2010;
(B) Stay operation and implementation of orders dated 5/3/2010 passed below Execution Petition No. 117/2009 together with orders passed below applications Exh. 31 and 32 filed in the said Execution Petition.
(C) Any other relief or reliefs as may be deemed just and proper in the facts and the circumstances of the case, may be granted.
(D) Allow this petition with cost."
2. THE SHORT FACTS OF THE CASE 2.1. The petitioner herein is a public sector bank (hereinafter referred to as 'the Bank'), who stood as a Page 1 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined guarantor for respondent nos. 3 and 4 herein, who had raised a money claim against the predecessor of respondent nos. 1 and 2, whereas respondent nos. 1 and 2 are the judgment creditors (hereinafter referred to as 'the judgment creditors'). 2.2. It appears that a money suit filed by respondent nos. 3 and 4 herein against the predecessor of the judgment creditors came to be decreed on 06.05.1981 by the competent Civil Court at Ujjain in Civil Suit No. 218 of 1980, which was passed ex parte.
2.3. It further appears that an execution petition, being Darkhast No. 683 of 1981, came to be filed by respondent nos. 3 and 4 against the predecessor of the judgment creditors in the City Civil Court, Ahmedabad for recovery of the amount. 2.4. It further appears that during the pendency of such execution, the decretal amount came to be deposited by the predecessor of the judgment creditors with the Court on 25-11- 1981. At the same time, he had approached the competent Civil Court for setting aside such decree, wherein having not Page 2 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined got any relief, he approached the High Court of Madhya Pradesh at Indore by way of Misc. Appeal No. 108 of 1982, which came to be allowed by the High Court on 18.04.1983, whereby it had set aside the judgment and money decree. 2.5. It further appears and having not disputed that during the pendency of the execution, respondent nos. 3 and 4, on submitting a bank guarantee issued by the Bank on 30.04.1982, had withdrawn the decreetal amount deposited by the predecessor of the judgment creditors. 2.6. The said ex parte decree having been set aside by the High Court, as per the rule of restitution, The predecessor of judgment creditors had instituted a recovery application against respondent nos. 3 and 4 as well as the Bank, being Miscellaneous Civil Application No.759 of 1983 in Execution Application No. 683 of 1981 on 24.10.1983. 2.7. The Bank did not appear and contest the application, while respondent nos. 3 and 4 herein had filed their reply. Nonetheless, after hearing, the Executing Court allowed the Page 3 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined aforesaid application vide its order dated 03.05.1984, whereby it permitted the predecessor of the judgment creditors to recover a sum of Rs.1,24,626.68 with 18% interest from 25th November 1981 till its repayment.
2.8. It further appears that the Bank had challenged the aforesaid order by filing an independent Civil Suit No. 4024 of 1988 before the City Civil Court, Ahmedabad, and prayed for stay of the aforesaid order passed by the Executing Court and also sought a declaration that the aforesaid order of the Executing Court be declared as null and void, as passed against the provision of the Bank Guarantee executed by the Bank on 30th April 1982. Further, it had been pleaded in the suit that the predecessor as well as the judgment creditors, as the case may be, is not entitled to recover any amount by virtue of the aforesaid order passed by the Executing Court. 2.9. It appears from the record that initially, the Trial Court did not granted any interim injunction in favour of the Bank, so it had preferred Appeal from Order No. 334 of 1989 under Order XLIII Rule 1 of the Civil Procedure Code, 1908 Page 4 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined (herein after referred as 'CPC') before this Court, which came to be allowed vide its oral judgment and order dated 21st January, 1995, whereby an interim injunction was granted and the said appeal came to be partly allowed on the condition that the Bank shall file an undertaking before the trial Court to the effect that in case the plaintiff loses in the suit and is required to pay the amount as prayed for in Civil Miscellaneous Application No. 759 of 1983 and any other amount as may be directed by the Court, the same shall be deposited in the Court within a period of one month from the date of the said order.
2.10. After recording the evidence and hearing all the respective parties to the suit, the Trial Court, vide its judgment and decree dated 29.03.2004, dismissed the suit. It is reported to this Court that thereafter, the Bank has not preferred any appeal, thereby making no challenge to such judgment and decree whereby the suit came to be dismissed. 2.11. As a matter of course, in view of the dismissal of the aforesaid suit, the Bank was supposed to deposit the amount as Page 5 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined ordered by the executing Court vide its order dated 3rd May 1984, passed in Civil Miscellaneous Application No. 759 of 1983 in Darkhast No. 683 of 1981, but it appears that the Bank has neither obeyed said order of Executing Court nor its undertaking so filed before the Civil Court as per the order dated 21st January 1995 passed by this Court in the aforesaid Appeal from Order No. 334 of 1989.
2.12. With these set of facts, the judgment creditors have preferred Execution Application No. 117 of 2009 against the Bank, which came to be allowed by the Executing Court vide its judgment and order dated 05.03.2010, and it also turned down all objections raised by the Bank.
3. Thus, being aggrieved and dissatisfied with the judgment and order passed by the Eecuting Court, the Bank has challenged the order impugned by way of the present writ application.
4. SUBMISSION OF THE PETITIONER - BANK 4.1. Learned advocate Mr. Tejas Satta for learned advocate Page 6 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined Mr. A.C. Gandhi would submit that the orders impugned are ex-facie illegal, erroneous, perverse, and against the principle of bank guarantee.
4.2. Learned advocate Mr. Satta would submit that the bank guarantee which was furnished by the Bank at the given point of time was valid for a period of six months only and, having expired, there was no liability on the part of the Bank to pay any amount which had been withdrawn by respondent nos. 3 and 4 herein.
4.3. Learned advocate Mr. Satta would submit that the Bank was not a party to the suit proceedings instituted by respondent no. 3 & 4 against the predecessor of the judgment creditors and stood as a guarantor when respondent nos. 3 and 4 were permitted to withdraw the amount so deposited by the predecessor of the judgment creditors. 4.4. It is submitted that when a bank guarantee is for a stipulated period, which was never renewed, then after the Bank would not be liable to pay any amount, so the bank Page 7 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined guarantee had already lapsed.
4.5. Learned advocate Mr. Satta would further submit that without appreciating such crucial facts and the objections so raised by the Bank before the Executing Court, it erroneously allowed the execution against the Bank. 4.6. Learned advocate Mr. Satta would further submit that when there was no liability on the part of the Bank to repay the amount in favour of the judgment creditors, and any liability which might arise was of respondent nos. 3 and 4, then the Executing Court could have accepted the objections of the Bank and ought to have directed respondent nos. 3 and 4 to pay any such amount to the judgment creditors. 4.7. Making the above submissions, learned advocate Mr. Satta would request this Court to allow the present writ application.
5. SUBMISSION OF RESPONDENT NOS. 1 AND 2 (JUDGMENT CREDITORS) 5.1. Learned advocate Mr. Vikram J. Thakor would submit that the present writ application, at instance of the Bank, is Page 8 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined nothing but a misuse of the process of law, and as such, the judgment creditors are deprived of their legitimate right to receive the money which was due and payable to them since 1984, and thereby, the present application requires to be rejected with costs.
5.2. Learned advocate Mr. Thakor would further submit that the Bank, having challenged the order dated 3rd May 1984, passed by the Executing Court in the restitution application so filed by the predecessor of the judgment creditors by filing a civil suit, and having lost in such suit, has no legitimate right to deprive the judgment creditors from realizing the fruits of the order dated 3rd May 1984. 5.3. Learned advocate Mr. Thakor would further submit that, as such, the Bank ought to have honoured the undertaking given before the Civil Court as per the order passed by this Court while partly allowing its Appeal from Order, and by not honouring such undertaking given before the Civil Court, the Bank, which is a public sector undertaking, has disrespected the process of law. Page 9 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025
NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined 5.4. Learned advocate Mr. Thakor would further submit that the Bank could not have objected to the execution filed at the instance of the judgment creditors, it having been filed after the dismissal of the suit filed by the Bank challenging the order of the Executing Court.
5.5. Learned advocate Mr. Thakor would respectfully submit that as such, there is no error, much less any gross error of law, committed by the Executing Court, and while accepting the prayers of the judgment creditors, this Court, while exercising its power under Article 227 of the Constitution of India, may not interfere with the orders impugned. 5.6. Making the above submissions, learned advocate Mr. Thakor would request this Court to reject the present application.
6. Heard learned advocates appearing for the respective parties at length. Though served, none appears for respondent no. 3, and the present application stands dismissed against respondent no. 4 as per the order dated 02.02.2011 passed by Page 10 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined this Court.
7. No other and further submissions are made.
8. Point for determination
(i) Whether, in the facts and circumstances of the case, any gross error of law and/or any jurisdictional error was committed by the executing Court while passing the impugned orders?
(ii) Whether the Bank can deny its obligation to pay the amount as per the order dated 3rd May 1984 passed by City Civil Court No. 7, Ahmedabad, in Civil Miscellaneous Application No. 759 of 1983 to Judgement Creditors?
9. Analysis
10. The facts, which are observed hereinabove, are not in dispute. The facts are eloquent one, and the matter has a checkered history, but it speaks volumes about the conduct of a Bank, which is a public sector undertaking, who, having lost in a legal battle instituted by it and on not honouring its undertaking given before the Court, compelled the judgment creditors to fight in a court of law and, having lost before the Executing Court, brought them before this Court. Page 11 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025
NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined
11. It remains undisputed that the Bank stood as a guarantor/ surety on behalf of respondent nos. 3 and 4 when they withdrew the money deposited by the predecessor of the judgment creditors in the execution filed by them. When the predecessor of the judgment creditors succeeded in his challenge before the High Court of Madhya Pradesh at Indore, whereby the money decree which was passed by the competent Civil Court at Ujjain in favour of respondent nos. 3 and 4 was set aside, as per rule of restitution, they were supposed to repay the amount deposited by the predecessor of the judgment creditors in the execution, with interest.
12. Having not done so, it appears that the predecessor of the judgment creditors instituted Miscellaneous Application No. 759 of 1983 against respondent nos. 3 and 4 as well as the Bank and sought restitution, which came to be accepted by the concerned Executing Court, whereby the Bank was directed to pay Rs.1,24,626.68 with 18% interest from 25th November 1981 till payment. Such order was passed on 3rd May 1984, which was challenged by the Bank before the City Civil Court, Page 12 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined Ahmedabad (Trial Court) by way of an independent Civil Suit No. 4024 of 1988.
13. The Bank had secured an interim injunction pending the suit, as Appeal from Order No. 334 of 1989, filed by the Bank before this Court, came to be allowed on 21st January, 1995, wherein a single Judge of this Court observed thus:-
"5. For the aforesaid reasons, the impugned order dated August 25, 1989 passed by the City Civil Court, Ahmedabad below notice of motion Ex.5/6 taken out in Civil Suit No.4024 of 1988 is reversed and set aside. The plaintiff bank shall be permitted to withdraw the entire amount of Rs.2,61,451.98 ps. (Rupees two lakhs sixtyone thousand four hundred fiftyone and paise ninetyeight only) deposited by it. The plaintiff Bank shall file an undertaking before the trial court to the effect that in case the plaintiff loses in the suit and is required to pay the amount as prayed for in Civil Misc. Application No.759/83 or any other amount as may be directed by the court, the samee shall be deposited in the court within a period of one month from the date of such order. It is further directed that if any of the parties to the suit request for expeditious hearing of the suit, the trial court shall try to hear and dispose of the suit as expeditiously as possible. Appeal is allowed to the aforesaid extent with no order as to costs."
(emphasis supplied)
14. So, in view of the aforesaid stay granted in favour of the Bank on the condition of filing an undertaking, the Bank was supposed to pay the amount as per the aforesaid order passed by the Executing Court in Civil Miscellaneous Application No. 759 of 1983 after it lost in the aforesaid suit. Page 13 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025
NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined
15. The Trial court framed the following issues before proceeding with the trial of the said civil suit filed by the Bank and answered them accordingly, which are as under:-
"1. Whether it is proved that the present suit is maintainable?
2. Whether the suit is barred on principle resjudicata or any such analogous provision?
3. Whether the plaintiff proves that the order passed on 3-5-84 in C.M.A.no.759 of 1983 is void ab initio, illegal and against the provisions of Bank Guarantee executed by plaintiff?
4. Whether the plaintiff is entitled to the relief as prayed for?
5. What order and decree?
8. My findings on the above issues are as follows for the reasons given herein after:-
1. In negative.
2. In affirmative
3. To negative.
4. In negative.
5. As per final order."
(emphasis supplied)
16. Thus, after the recording of evidence, the trial Court concerned dismissed the suit filed by the Bank vide its judgment and decree dated 29.03.2004. It is reported to this Court that the Bank has not challenged such judgment and decree by filing any regular appeal before this Court.
17. Once the Bank lost in its attempt to challenge the order Page 14 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined dated 3rd May, 1984 passed by the Executing Court in Civil Miscellaneous Application No. 759 of 1983, whereby it was liable to pay the amount in favour of the judgment creditors, and having so filed an undertaking before the Civil Court as per the said order dated 21st January, 1995 passed by this Court in Appeal from Order No. 334 of 1989, the Bank was required to pay/deposit the amount, whereby the judgment creditors could realize the fruits of the aforesaid order dated 3rd May, 1984. Instead of honouring its undertaking given before the Civil Court, the Bank has compelled the judgment creditors to first file their execution, being Execution Petition No. 117 of 2009, and thereafter raised several objections to the aforesaid execution and, having failed in their attempt, came before this Court and also secured a stay which has been operating all throughout for these many years.
18. Having analyzed the aforesaid facts, I am pained and also after going through the above-referred different orders/judgments passed by the Executing Court, this Court, and also the trial Court in the aforesaid different proceedings, Page 15 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined none of the arguments canvassed by learned advocate Mr. Satta appeal to this Court, as the Bank, once having lost in its suit and having failed to challenge the aforesaid order dated 3rd May 1984 passed by the Executing Court, has no legitimate right available with it to disrespect such an order passed by a competent court, that too after filing an undertaking as referred to hereinabove.
19. So far as the argument canvassed by learned advocate Mr. Satta that the bank guarantee which was submitted by the Bank at the given point of time had outlived its life and no longer exists is thoroughly misconceived, not only on facts but also on law. Once the Bank, having reiterated such a contention before the trial court in its suit, which has been negated by the answering of issue nos. 3 and 4 respectively, the Bank has no right to reiterate such an issue again and again, that too in an execution petition.
20. Furthermore, this Court, while exercising its jurisdiction under Article 227 of the Constitution of India, has its own limitations and, thereby, cannot interfere in every order passed Page 16 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined by the trial courts or executing Court unless it is shown that the order impugned is erroneous, perverse, contrary to the principles of law, and so arbitrary. None of such factors has been made out by the Bank and are not even germane from the record of the case. [See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 (Paras. 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Paras. 15 and 16)].
21. As this Court has not entertained the present application, the Bank is required to deposit the amount due and payable to the judgment creditors as per the order dated 3rd May 1984 passed by the executing Court in Civil Miscellaneous Application No. 759 of 1983, by honouring its undertaking so given as per the order dated 09.04.2010 passed by this Court in the present application as well. Relevant observations made by this Court in paragraph-6 of its said order, which reads as under:-
"6. The Court finds substance in the submissions made by the learned advocate for petitioner. Hence 'Rule'. Learned advocate Mr.Patel waives service of rule. Interim relief in terms of para 5(B). The Registry is directed to send writ of Page 17 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined this Court to the executing court so as to avoid a contention being taken to the effect that, 'the court was not served with the order of this Court'. The Registry shall see to it that order is communicated today itself. The amount deposited by the Bank in the Court be returned to the Bank on Bank filing an undertaking that, 'in the event if finally the bank is held liable to pay any amount, the same will be paid by the bank according to the order of the court within a period of one month from the date of the order'. Undertaking shall be filed within one week from today and within further one week the amount be returned as directed hereinabove."
(emphasis supplied)
22. So, the Bank is hereby directed to deposit such amount within a period of one month from today as directed. Once such amount is deposited by the Bank with the Executing Court, the Court concerned shall intimate about such deposit to respondent nos. 1 and 2 herein (judgment creditors) and, on proper verification, release such amount in favour of the judgment creditors and or their legal heirs/their successor in interest in accordance with law.
23. Conclusion 23.1. With the aforesaid observations, directions and reasons and in light of the aforesaid facts and circumstances of the case, I am of the view that the present application lacks merit Page 18 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025 NEUTRAL CITATION C/SCA/4391/2010 ORDER DATED: 23/06/2025 undefined and requires to be rejected, which is hereby REJECTED. 23.2. This Court is constrained not to impose any costs upon the petitioner - Bank with the view that it is a public sector undertaking otherwise, it is fit case to impose cost. Rule is discharged. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 19 of 19 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:23 IST 2025