M/S Delux Plastic Industries vs Manager
2013 Latest Caselaw 287 Bom

                                                                        WP/4687/2012
                                          1

                   IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                              BENCH AT AURANGABAD




                                                                           
                           WRIT PETITION NO. 4687 OF 2012




                                                   
     M/s Delux Plastic Industries
     Through its Proprietor,
     Mohd. Ejaz Mohd. Riyaz,
     Age 46 years, Occ. Business,




                                                  
     r/o Opp. Dena Bank, Juna Bazar,
     Aurangabad.                                            ..Petitioner

     Versus




                                        
     Maharashtra State Finance
     Corporation, through its Regional
                        
     Manager, Regional Office,
     Railway Station Road,
     Aurangabad.                                            ..Respondent
                       
                                         ...
                 Advocate for Petitioner : Shri A.G.Godhamgaonkar
                   Advocate for Respondent : Shri S.R.Deshpande
                                         ...
      


                                  CORAM : RAVINDRA V. GHUGE, J.

Dated : December 6, 2013

ORAL JUDGMENT:-

1. Heard learned Advocates for the respective parties.

2. Rule. By consent, Rule is made returnable forthwith and the

petition is heard finally.

3. The petitioner, being aggrieved by the rejection of his

application for restoration of RCS No.686 of 2005, which was dismissed in

default, has preferred this Writ Petition. The petitioner is thus

challenging the impugned order dated 23.1.2012, passed by the learned

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20th Joint Civil Judge J.D. Aurangabad in MARJI No.1061 of 2010.

4. The petitioner had taken a loan from the respondent

financial institution to the tune of Rs.6,80,000/-. An amount of Rs.

3,00,000/- was sanctioned for purchase of plant and machinery on the

security of mortgage of land, building, plant, machinery, furniture and

fixtures that were acquired / to be acquired on plot No. C-249 at MIDC,

Waluj, Aurangabad. The loan was to be repaid in a period of eight years,

in thirteen half yearly installments with interest at the rate of 21.5% p.a.

with quarterly rests. In default of repayment, the petitioner had agreed to

pay the additional penal interest at the rate of 2.5% p.a. on the defaulted

amount for the defaulted period.

5. After providing all opportunities to repay the dues, as per

the repayment schedule or to settle the loan account by way of One Time

Settlement Scheme, the petitioner had failed in repayments. Several

demand notices and notices under Section 29 of the State Financial

Corporations Act, 1951 were issued. Finally a notice on 28.1.2005, under

Section 29 of the said Act was issued calling upon the petitioner to pay the

amount of Rs. 37, 94, 450/- inclusive of interest upto 31.10.2004 and

future interest with expenses from 1.11.2004. The petitioner was also

informed that failure to do so would compel the respondent No.1 to take

possession of the primary securities on 17.2.2005 and collateral securities

on 18.2.2005.

WP/4687/2012

6. Since the petitioner could not comply with the said notice,

the land and building of Plot No. C-249 was taken into possession by the

respondent on 17.2.2005 by drawing a panchanama. The notice dated

28.1.2005 is at Exhibit R/1 and the panchanama is at Exhibit R/2 in the

petition paper book.

7. Being aggrieved by the action of the respondent, the

petitioner approached the Civil Court by filing RCS No.686 of 2005 for

perpetual injunction. An application for the temporary injunction was also

filed.

8. By an auction notice published in Daily Lokmat news paper,

the respondent put up the mortgaged property for auction on 9.1.2007.

By an order dated 30.3.2007 passed by the learned 9th Joint Civil Judge

J.D., the application for temporary injunction was rejected. The

petitioner preferred not to challenge the said order.

9. The date for the inspection of the property was scheduled on

2.1.2007 and the auction sale was scheduled on 9.1.2007. M/s Raj Techno

Products (not a party to this petition) submitted a highest bid, which was

accepted. The auction purchaser deposited the bid amount and the same

was confirmed. Necessary procedure for issuing the deed of assignment

was followed and it was executed on 4.4.2008 in the Sub-Registrar's office

and legal formalities thereafter were completed. In the meanwhile, RCS

No.686 of 2005 was dismissed in default on 3.4.2008.

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10. The petitioner had filed Writ Petition No.7501 of 2007 before

the learned Division Bench of this Court for challenging the auction sale.

The said petition was dismissed by a speaking order on 6.1.2009. The

conclusions of the learned Division Bench in paragraph Nos.6, 7 and 8 of

the said order are self explanatory and put to rest any question or doubts

about the auction sale.

11.

The petitioner preferred Civil Appeal No.6416 of 2009 before

the Honourable Apex Court, aggrieved by the judgment of the High Court

in Writ Petition No.7501 of 2007. The same came to be dismissed on

11.5.2009.

12. The petitioners filed MARJI No.467 of 2009 for restoration of

the suit. This came to be dismissed in default on 3.8.2010.

13. The petitioner then filed MARJI No.1061 of 2010 before the

learned Civil Judge S.D. Aurangabad on 26.10.2010, seeking condonation

of delay in filing the restoration petition No.467 of 2009 (already

dismissed in default) for restoration of RCS No.686 of 2005. By the

impugned order dated 23.1.2012, the learned Civil Judge J.D. rejected

the said application.

14. The petitioner contends as follows:-

WP/4687/2012

(a) All his rights are extinguished owing to the order of

dismissal in default of his suit and justice needs to be done to the petitioner by condoning the delay and by restoring the

civil suit.

(b) If delay is condoned, it would seek restoration of

MARJI No.467 of 2009.

(c) If MARJI No.467 of 2009 is restored, it would seek

restoration of RCS No.686 of 2005.

(d)

After restoration it would prefer to amend the suit proceedings, add the auction purchaser as a party and would

seek setting aside of the auction sale.

(e) He is entitled to get back his property, despite the

auction sale having attained finality by the orders of the Honourable Apex Court and this Court.

15. Per contra, the respondent has contended as follows:-

(a) The temporary injunction application has been rejected, which has not been challenged.

(b) Due procedure laid down in the law has been followed with regard to the auction sale and the challenge of the petitioner to the said auction sale has been rejected right upto the Honourable Apex Court.

(c) The rights to the auction purchaser have been crystallized and the suit property in question is now no longer available for any judicial adjudication.

WP/4687/2012

(d) The delay is of two years, six months and twenty three days, which does not deserve to be condoned.

(e) Too many contingencies inter linked with each other are serious legal hurdles pitted against the petitioner

(f) Delay and laches are attributable to the petitioner.

(g) Therefore, neither are there any justifiable reasons to condone the delay nor would any purpose be achieved by

restoration of two MARJI applications and then RCS No.656 of 2005.

16. I find that the impugned order has considered the rival

contentions of the parties. The Civil Court has found the explanation

given by the petitioner unacceptable, as regards the circumstances that

led to the dismissal of the suit in default and the period of unawareness of

such dismissal. The said Court has also considered the fact as regards the

litigation initiated by the petitioner before this Court and the Honourable

Apex Court.

17. The contents of paragraph No.5, 7 and 8 of the judgment of

the High Court are thus crucial. Paragraph No.5 of the order, quoted by

the trial Court indicates that the request of the petitioner to resort to

"one time settlement" has also been negated. As such, I am of the

considered view that the rights of the auction purchaser have got

crystallized and leave no room for further adjudication in the matter.

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18. After dismissal of the Civil Suit, the petitioner has dragged the

respondent and the auction purchaser in litigation in this Court as well as

in the Apex Court, which falsifies the story of the petitioner that he and

his lawyer were not aware of the dismissal of the suit in default.

19. As such, it is clearly seen that the delay caused in filing the

application for restoration is unjustified, unreasonable and does not

deserve consideration. Moreover, if any substantial right vested in the

petitioner by law was subsisting and if the suit property was by any legal

mode likely to put the petitioner back into the possession, the

condonation of delay application could have been considered. His

application for restoration of MARJI No.467 of 2009 was also dismissed in

default.

20. In view of the right of the auction purchaser having been

crystallized and the auction purchaser having been put in possession of the

suit property by following a legal procedure, leaves nothing to be decided

by the trial Court. Therefore, I am in complete agreement with the

reasons put forth by the trial Court while passing the impugned order and

the submissions of the respondent recorded above. The submissions of

the petitioner and grounds for challenge sans merit. The petition,

therefore, deserves to be dismissed.

WP/4687/2012

21. In the result, Writ Petition is dismissed. Rule stands

discharged. No order as to costs.

(RAVINDRA V. GHUGE, J.)

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