Bombay High Court
Phoolchand Tekchand Jain Through ... vs The Maharashtra State Co Op Bank ... on 14 December, 2016
Bench: T.V. Nalawade
46_WP1193716.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11937 OF 2016
Phoolchand Tekchand Jain
Age: 59 years, Occu.: Business,
Proprietor : Durgama Traders,
R/o Chikmaglur, Tq. & Dist. Chikmaglur (Karnataka)
Through his Power of Attorney Holder
Arjun Rambhau Waghmare
R/o Ambasakhar (Waghala),
Tq. Ambejogai, Dist. Beed. ig ..PETITIONER
VERSUS
1. The Maharashtra State Co-operative Bank Ltd.
Pay Office, Vasant Nagar, Nanded.
Through its Joint Manager.
2. Jai Jawan Jai Kisan Co-op. Sugar Factory Ltd.,
Lal Bahadur Shastri Nagar, Nalegaon,
Tq. Nalegaon, Dist. Latur.
Through its Managing Director. ..RESPONDENTS
....
Mr. S.G. Nandedkar, Advocate for petitioner.
Mr. Abhishek Kukarni, Advocate for Respondent No.2.
....
CORAM : T.V. NALAWADE, J.
DATED : 14th DECEMBER, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard both sides by
consent for final disposal.
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46_WP1193716.odt
2. The proceeding is filed to challenge the order made on Exhibit
14 in Regular Darkhast No. 12 of 2016. The application was filed for
review of the order made by the Executing Court on Exhibit 36. The
application at Exhibit 36 was filed by present petitioner before the
Executing Court for giving direction to the judgment debtor to return back
four demand drafts. Even direction was given by the Executing Court to
return the drafts but then judgment debtor filed application for review of
the order. The said application is allowed and order made on Exhibit 36
in darkhast is called back.
3. The submissions made show that respondent - secured creditor
had issued tender notice for sale of raw sugar. The petitioner had filled
the tender. There was some dispute and so the civil suit was filed by the
present petitioner for relief of injunction to prevent the secured creditor
from selling the raw sugar to third party. In the said suit, compromise
took place and the petitioner accepted to deposit the entire amount
within 30 days. The petitioner failed to deposit the amount.
4. It appears that when secured creditor started the tender
process again, the petitioner filed proceeding for execution of aforesaid
compromise decree. The matter come to this Court and this Court held
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that condition mentioned in the compromise was not fulfilled and so
there was no question of execution of the decree. It appears that in
Miscellaneous Civil Appeal No. 25 of 2016 which was filed before the
District Court, the District Court had made order and had given
opportunity to the present petitioner to pay the amount of
Rs.1,34,00,000/- within ten days from the date of the order i.e. 04 th April,
2016. On 07th April, 2016, the four demand drafts were sent by present
petitioner to the secured creditor. The demand drafts were as under:-
Sr. No. D.D. Amount Bank D.D. No. Date
1 Rs.25,00,000/- HDFC 14340 18/03/2016
2 Rs/25,00,000/- HDFC 14341 18/03/2016
3 Rs.54,00,000/- HDFC 14407 07/04/16
4 Rs.80,00,000/- HDFC 2671 07/04/16
Total Amount Rs.1,84,00,000/-
5. The demand drafts are still with the secured creditor. The
decision of District Court is set aside in writ petition. It appears that at
higher price the secured creditor has sold the raw sugar to the third party.
Thus secured creditor has not sustained loss due to the conduct of present
petitioner. Submissions made do not show that there was any condition
of forfeiture of any amount including the earnest money deposited by the
petitioner with the secured creditor alongwith the tender.
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6. Learned Counsel for respondent - secured creditor submitted
that indirectly the petitioner is seeking direction from this Court and
therefore the matter lies before the Division Bench. This submission is not
at all acceptable. The aforesaid submissions show that only due to the
order made by the District Court in Miscellaneous Civil Appeal No. 25 of
2016, four demand drafts were sent by the petitioner to the secured
creditor. Learned Counsel for secured creditor submitted that this order
of the District Court was stayed for ten days and during that period the
demand drafts were sent and so it cannot be said that the demand drafts
were sent due to the order of the Court. This submission is not at all
acceptable.
7. Learned Counsel for secured creditor submitted that the order
made by the District Court itself was set aside by this Court. This
circumstance will also not affect the right of the petitioner to get back the
demand drafts as transaction has failed. As the amount was deposited
under the order of the Court, this Court holds that the Executing Court
ought to have exercised the power to see that the demand drafts are
returned back to the petitioner. As such order is not made by the
Executing Court and impugned order is made, this Court holds that
petition needs to be allowed.
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8. In the result, petition is allowed. Order made by the Executing
Court on Exhibit 14 is set aside. Four demand drafts are to be returned
back by the secured creditor to the petitioner within fifteen days from
today. In view of submissions made by learned Counsel for secured
creditors that four demand drafts were in closed envelope and envelope is
not opened, in that case the said envelope can be handed over to the
petitioner. Rule made absolute in those terms.
SSD
ig ( T.V. NALAWADE, J. )
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