Syndicate Bank, vs Gatta Kranthi Kumar,
2023 Latest Caselaw 691 AP

          THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

               Civil Revision Petition No.1299 of 2020

ORDER:

This civil revision petition, under Article 227 of the

Constitution of India, is filed challenging the orders, dated

03.03.2020, dismissing I.A.No.1225 of 2018 in O.S.No.382 of 2015

on the file of the Court of VII Additional District & Sessions Judge,

Vijayawada, filed under Order VII Rule 11 CPC and Section 151 CPC

to reject the plaint.

2. Heard Sri T. Bal Murthy, learned counsel for the revision

petitioners/defendants and Sri D. Venkata Ramana Reddy, learned

counsel for the respondent/plaintiff.

3(a) The suit in O.S.No.382 of 2015 was filed for the relief of

granting compensation of Rs.50,00,000/- for publishing defamatory

statement as a joint tort feasor of the defendants 1 & 2 by

committing civil wrong during the subsistence of the orders of

status quo, dated 22.11.2012, granted in I.A.No.1025 of 2012 in

O.S.No.1595 of 2012 on the file of the Court of VII Additional Senior

Civil Judge, Vijayawada.

(b) The case as per the plaintiff is briefly like this: Initially,

O.S.No.1595 of 2012 was filed along with a petition in I.A.No.1025

of 2012 under Order XXXIX Rules 1 & 2 CPC against these

defendants seeking an order restraining them from proceeding

BSB, J C.R.P.No.1299 of 2020

further by making use of the forged and fabricated documents in

respect of the suit schedule property therein pending the suit and

obtained an order of status quo, dated 22.11.2012. Pending the

said order, a notice, dated 23.05.2015, was issued by the 3rd

defendant, i.e., Authorized Officer, Syndicate Bank, informing the

plaintiff that the bank intended to invoke the provisions of the

Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 ("SARFAESI Act", for

short). On receipt of the said notice, on 28.05.2015, the plaintiff

dispatched a reply informing defendant No.3 about granting of the

order of status quo. The same was received by the defendant No.3

and acknowledged it on 29.05.2015. While the matter stood thus,

on 20.08.2015, defendant No.3 issued a possession notice to the

plaintiff and guarantor without caring the subsisting orders. The

said notice was intentionally given wide publicity exceeding his

authority and with a view to cause damage to the reputation and

stature of the plaintiff's family and squeeze money under the threat

of causing such damage, and therefore, it is a civil wrong of

defamation. Therefore, the plaintiff, on 05.09.2015, got issued a

notice to all the defendants calling upon them to compensate the

plaintiff by paying Rs.50 lakhs towards the damage caused to the

plaintiff and his family for the said civil wrong.

BSB, J C.R.P.No.1299 of 2020

(c) Defendants 2 & 3 acknowledged the receipt of the notice on

07.09.2015. The 1st defendant received the notice on 07.09.2015

and the 4th defendant received the notice on 10.09.2015, as per the

online track report of the Indian Postal service. None of these

defendants responded to the notices. Hence, the suit was filed.

4. The defendants filed this petition in I.A.No.1225 of 2018

under Order VII Rule 11(a) and Section 151 CPC to reject the plaint

on the grounds of (i) cause of action does not survive in view of the

subsequent events, (ii) barred by law and (iii) the remedy is

otherwise, as follows:

"a) The cause of action for filing the present suit is publication of Section 13(4) notice in the newspapers on 25-08-2015 which is said to be in violation of status-quo orders passed in IA No.1025/12 in OS No.1595/2012. When OS 1595/2012 itself is dismissed on the ground of want of jurisdiction, the status-quo orders are automatically merged in the said judgment in OS 1595/2004 on the file of VII Additional Senior Civil Judge Court at Vijayawada and at present the alleged cause of action did not survive in view of subsequent events. Hence the suit is not maintainable in law (bound by law).

b) It is now well settled legal position that a suit claiming of damages for violating status quo orders on the basis of Sec. 13(4) notice is not maintainable in law, as the jurisdiction of civil Court is ousted under Section 34 of Securitization Act.

c) The O.S.No.1595 of 2012 was dismissed as not maintainable in view of specific remedy available u/S 17 of the Securitization Act and it is only a final adjudication that operates as res judicata to the present suit. The respondent/plaintiff can

BSB, J C.R.P.No.1299 of 2020

file an application u/S 17 of the Securitization Act challenging Section 13(4) notice.

d) The averment in the plaint with regard to cause of action para is concerned, the plaintiff stated that defendant violated status-quo orders which caused loss of reputation to the plaintiff by issuing Section 13(4) notice. If any person violated status quo orders, their remedy is to file a contingent case under Rules 1 & 2 of Order XXXIX CPC but not a separate suit. Hence suit is not maintainable."

5. The plaintiff/respondent filed counter opposing the petition

stating that the cause of action is a bundle of facts which leads to

filing of the suit, and at this juncture, the pleadings in para No.1

and page No.2 of the plaint and the contents of document Nos.2

and 11 would provide the cause of action for maintainability of the

suit. It is further stated that when there was a specific direction by

a Court restraining the defendant bank in respect of the subject

matter of the suit, issuing of publication violating the order provided

real cause of action and the provisions of the SARFAESI Act do not

have any bearing on the present suit. Hence, the petition is liable

to be dismissed.

6. After hearing both parties, the petition was dismissed by the

trial Court holding that the facts and the allegations made by the

plaintiff are yet to be proved during trial, and therefore, the case of

the plaintiff that the defendants got published the notice in a

newspaper with a view to cause damage to the reputation of the

BSB, J C.R.P.No.1299 of 2020

plaintiff is yet to be decided, and therefore, the plaintiff must be

given an opportunity to prove the case during trial, and thus, there

is no merit in the petition to reject the plaint.

7. Having been aggrieved of the order, the present revision

petition was filed.

8. Learned counsel for the revision petitioners submitted that the

remedy available for the plaintiff for breach of order passed under

Order XXXIX Rules 1 & 2 CPC is provided under Order XXXIX Rule

2A CPC and not by filing a separate suit. It is further contended

that the respondent/plaintiff has already taken such step in

O.S.No.1595 of 2012, and therefore, the present suit is not at all

maintainable. Thus, it is vehemently argued that when there is a

specific provision of law providing the relief for breach of order

passed under Order XXXIX Rules 1 & 2 CPC, a separate suit is not

maintainable.

9. On the other hand, learned counsel for the respondent/

plaintiff vehemently contended that ground can be raised in the suit

and decided, but the plaint cannot be rejected on that ground. He

supported the order impugned in the revision. Further, he placed

reliance on the decision of this Court in Surya Dev Rai v. Ram

Chander Rai & Others1 in support of his argument that the order

of a trial Court cannot be easily interfered with by exercising the

AIR 2003 SC 3044

BSB, J C.R.P.No.1299 of 2020

authority under Article 227 of the Constitution of India and since

there is no illegality, irregularity or error apparent on the record,

the order impugned need not be interfered with. He further relied

on the decision of the Supreme Court in Tayabbhai M.

Bagasarwalla v. Hind Rubber Industries Private Limited 2

wherein it was held that violation of an order passed without having

jurisdiction is punishable under Rule 2A of Order XXXIX CPC and

submitted that even if such an order is found to be passed without

jurisdiction, if the violation is made during subsistence of the order,

it amounts to violation and is punishable under Rule 2A of Order

XXXIX CPC. In this regard, he further placed reliance on a decision

of Madras High Court in Century Flour Mills Ltd. S. Suppiah and

others3, wherein it was held that the inherent powers of a Court

under Section 151 CPC are wide enough to deal with the violation of

order of stay or injunction and that as a matter of judicial policy,

Court should guard against itself being stultified in circumstances

like this by holding that it is powerless to undo a wrong done in

disobedience of the Court's orders.

10. The question before this Court is not whether publication of

notice during the period of subsistence of the order of status-quo

amounts to violation of the said order and is punishable either

AIR 1997 SC 1240

AIR 1975 Mad 270

BSB, J C.R.P.No.1299 of 2020

under Order XXXIX Rule 2A or by exercise of inherent powers under

Section 151 CPC or any other provision of law.

11. Order XXXIX Rule 2A CPC provided penal consequences of

disobedience or breach of an order of injunction granted under

Rules 1 or 2 therein. The said provision has given discretion to the

Court which granted injunction to order the property of the person

guilty of such disobedience or breach to be attached, and may also

order such person to be detained in the civil prison for a term not

exceeding three months, unless in the meantime the Court directs

his release. Sub-rule (2) of Rule 2A provides that no attachment

made under this rule shall remain in force for more than one year,

at the end of which time, if the disobedience or breach continues,

the property attached may be sold and out of the proceeds, the

Court may award such compensation as it thinks fit to the injured

party and shall pay the balance, if any, to the party entitled thereto.

12. Therefore, it is clear that though the Code of Civil Procedure is

basically a procedural law, this Rule has provided a substantial right

of remedy of compensation for breach or violation of the order

passed under the Rules in the same Order in the Code. Moreover, it

is not said to be by way of a separate suit, though suit is not

specifically prohibited, but by filing an application under the said

provision before the Court which passed the said order or Court to

which it was transferred as indicted therein.

BSB, J C.R.P.No.1299 of 2020

13. In the present case, admittedly, the plaintiff herein has

wanted that remedy, but could not get the fruits fructified therein.

If at all, the plaintiff is not satisfied with the result, the matter could

have been carried further. On the other hand, a fresh suit is filed

for the very same cause of action and the plaintiff contends that the

suit is maintainable. The trial Court felt that the facts and

allegations made by the plaintiff in the plaint are to be proved

during trial. However, the fact remains that a separate suit for the

same relief cannot be laid. As such, there is no question of

providing an opportunity to the plaintiff to lead evidence to get the

relief pending the suit. Since the suit is not maintainable, the plaint

needs to be rejected. Therefore, the order impugned in the revision

is liable to be set aside.

14. Accordingly, the Civil Revision Petition is allowed setting aside

the order, dated 03.03.2020, passed in I.A.No.1225 of 2018 in

O.S.No.382 of 2015. Consequently, I.A.No.1225 of 2018 shall

stand allowed and the plaint is rejected.

There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this revision shall

stand closed.

_________________ B. S. BHANUMATHI, J 09-02-2023 RAR