Bombay High Court
Madhukar vs State Of Mah on 25 November, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 135 OF 1996
Shamrao Shankarrao Shiraskar and
Smt. Gangabai Shamrao Shiraskar
since deceased through L.Rs
1] Madhukar Shamrao Shiraskar
aged about 89 years, Occ. Retired,
R/o. Timkipura, Nagpur,
Tah. And Distt. Nagpur.
1(1) Smt. Sulochana Madhukarrao Shiraskar,
aged about 76 years,
1(2) Satish Madhukarrao Shiraskar
aged about 50 years,
1(3) Pradip Madhukarrao Shiraskar
aged about 35 years,
1(4) Mangesh Madhukarrao Shiraskar,
aged about 37 years,
All Nos. 1(1) to 1(4) R/o. Wadamba,
Tah. Ramtek, Distt. Nagpur.
1(5) Sau. Meenatai Arunrao Shewade,
aged about 50 years, R/o. Bhugaon,
Tah. And Distt. Wardha.
1(6) Sau. Ashatai Chhatranrao Meghe,
aged about 45 years, R/o. New
MHADA Colony, Arvi Road, Wardha.
1(7) Sau. Nilutai Purushottam Selukar,
aged about 37 years, R/o. Siraspeth,
Nagpur.
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2] Wasudeo Shamrao Shiraskar,
aged about 82 years, Occ. Retired,
R/o. Umri, Distt. Wardha.
2(1) Smt. Sunanda Wasudeo Shiraskar
aged Major, Occ. Housewife,
2(2) Prashant Wasudeo Shiraskar
aged about 27 years,
2(3) Neeta Wankhede,
aged about 37 years,
2(4) Sujata Pawar,
aged 24 years,
2(5) Jyoti Dahake,
aged about 21 years,
All Nos. 2(1) to 2(5), R/o. Umri,
Distt. Wardha.
3. Arun Shamrao Shiraskar
Aged about 64 years, Occ. Cultivator,
R/o. Pardi, Tah. Karanja, Distt. Wardha.
4] Pramila Pundalikrao Bobde,
aged about 67 years, Occ. Cultivation,
R/o. Gangapur, Tah.Hinganghat,
Distt. Wardha.
5] Sau. Prabha Wasudeorao Kukatkar,
aged about 64 years, Occ. Hosuehold,
R/o. Nawargaon, Tah. Sindewahi,
Distt. Chandrapur ...... APPELLANTS
...VERSUS...
1. State of Maharashtra,
Sachivalay Bombay
(Deleted)
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2. The Divisional Forest Officer,
Wardha.
3. Gangadhar Dewaji Dhage,
(through L.Rs)
3(1) Smt. Sushila Gangadhar Dhage,
aged about 59 years, Occ. Household,
3(2) Subhash Gangadhar Dhage,
aged about 52 years, Occ. Business,
3(3) Moreshwar Gangadhar Dhage
aged about 51 years, Occ. Business,
3(4) Hemant Gangadhar Dhage
aged about 49 years, Occ. Business,
3(5) Devendra Gangadhar Dhage
aged 47 years, Occ. Business,
3(6) Narendra Gangadhar Dhage
aged about 45, Occ. Business,
All 3(1) to 3(6) R/o. New Shukrawari,
Telipura Nagar, Tah.& Distt.Nagpur.
3(7) Mrs. Neeta Sanjayrao Tate,
aged about 40, Occ. Service,
R/o. Kharbi Road, Nagpur.
4] Dhanraj Shamrao Shiraskar,
aged about 68 years,
R/o. Pardi (Bhoyar), Tah. Arvi,
Distt. Wardha....... RESPONDENTS
AND
SECOND APPEAL NO. 136 OF 1996
1] Madhukar Shamrao Shiraskar
(through L.Rs)
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1(1) Smt. Sulochana Madhukarrao Shiraskar,
aged about 76 years,
1(2) Satish Madhukarrao Shiraskar
aged about 50 years,
1(3) Pradip Madhukarrao Shiraskar
aged about 35 years,
1(4) Mangesh Madhukarrao Shiraskar,
aged about 37 years,
All Nos. 1(1) to 1(4) R/o. Wadamba,
Tah. Ramtek, Distt. Nagpur.
2] Wasudeo Shamrao Shiraskar,
[through L.Rs]
2(1) Smt. Sunanda Wasudeo Shiraskar
aged Major, Occ. Housewife,
2(2) Prashant Wasudeo Shiraskar
aged about 27 years,
2(3) Neeta Wankhede,
aged about 37 years,
2(4) Sujata Pawar,
aged 24 years,
2(5) Jyoti Dahake,
aged about 21 years,
All Nos. 2(1) to 2(5), R/o. Umri,
Distt. Wardha.
3. Arun Shamrao Shiraskar
Aged about 49 years, Occ. Cultivator,
R/o. Pardi, Tah. Karanja, Distt. Wardha.
4] Pramila Pundalikrao Bobde,
aged about 52 years, Occ. Cultivation,
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R/o. Gangapur, Tah.Hinganghat,
Distt. Wardha.
5] Sau. Prabha Wasudeorao Kukatkar,
aged about 49 years, Occ. Hosuehold,
R/o. Nawargaon, Tah. Sindewahi,
Distt. Chandrapur ...... APPELLANTS
...VERSUS...
1. State of Maharashtra,
Sachivalay Bombay
2.
The Divisional Forest Officer,
Wardha.
3. Gangadhar Dewaji Dhage,
(through L.Rs)
3(i) Smt. Sushila Gangadhar Dhage,
aged about 57 years, Occ. Household,
3(ii) Subhash Gangadhar Dhage,
aged about 51 years, Occ. Business,
3(iii) Moreshwar Gangadhar Dhage
aged about 491 years, Occ. Business,
3(iv) Hemant Gangadhar Dhage
aged about 47 years, Occ. Business,
3(v) Devendra Gangadhar Dhage
aged 45 years, Occ. Business,
3(vi) Narendra Gangadhar Dhage
aged about 43, Occ. Business,
All 3(1) to 3(6) R/o. New Shukrawari,
Telipura Nagar, Tah.& Distt.Nagpur.
3(vii) Mrs. Neeta Sanjayrao Tate,
aged about 40, Occ. Service,
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R/o. Kharbi Road, Nagpur.
4] Dhanraj Shamrao Shiraskar,
aged about 68 years,
R/o. Pardi (Bhoyar), Tah. Arvi,
Distt. Wardha....... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri N.D.Khamborkar, Advocate for appellants in both appeals.
Shri MA.Kadu, AGP for Respondent nos. 1 and 2
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
th
DATE : 25 NOVEMBER, 2016 .
ORAL JUDGMENT
1] Special Civil Suit No. 40 of 1974 was filed by
Shyamrao Shankarrao Shirsakar, claiming the relief of
declaration that termination of the contract of sale of felled
material in the coup No.24, Ajandi, Talegaon, Tq. Arvi,
District-Wardha, in favour of defendant No.4 was entirely void
and hence, the defendant Nos. 1 and 2, the authorities under
the Forest Department of the State, be directed to call back
the recovery proceedings started against the plaintiff, who
was a surety for performance of contract by the defendant
No.4. A further declaration was claimed that resale price of
Rs.12,000/- realized by the defendant Nos. 1 and 2 in
respect of the same coup on 25.08.1972 be credited towards
the amount recoverable with respect to initial contract of sale.
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The another relief of declaration sought was sale of plaintiff's
property described in the plaint schedule in favour of
defendant No.3 in the revenue proceedings be declared as
void and not confirmed. Similar reliefs were also asked for in
Special Civil Suit No. 33 of 1977 filed by Madhukar
Shyamrao Shiraskar. Both the suits were tried together by
the trial Court and by common judgment and order dated
29.04.1992, the same were dismissed.
2] Regular Civil Appeal No.76 of 1992 filed by
Shyamrao Shankarrao Shiraskar and others challenging the
decision in Special Civil Suit No. 40 of 1974, and Regular
Civil Appeal No. 68 of 1992 filed by Madhukar Shyamrao
Shiraskar and others, challenging the decision in Special Civil
Suit No.33 of 1997, were dismissed by the common
judgment and order dated 06.04.1996 by the lower appellant
Court.
3] On 25.09.1996, this Court admitted the second
appeals on the substantial questions of law framed at Sr.Nos.
2, 4 and 5, which are reproduced below.
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[2] Whether both the Courts below were justified
in not adjusting the proceeds of sale first in
discharging such amount due and
recoverable from the original defendant
No.4, which was in the sum of Rs.12,000/-,
on the face of the provisions of sections 82
and 83 of the Indian Forest Act, 1927?
[4] Whether both the Courts below were justified
in overlooking and not noticing the law laid
down by the Supreme Court in AIR 1967 SC
1105 (State of M.P. vrs. Kaluram)?
[5] Whether the reasons sought to be given by
the trial Court in para 13 of its judgment, and
in para 33 of the judgment of the lower
appellate Court, are legal and proper for
denying the benefit of Section 141 of the
Contract Act read with Section 83 of the
Forest Act, 1927, coupled with Rules 3 and
32 of the Forest Contract Rules?
4] The facts of the case are as under;
One Dhanraj s/o. Shyamrao Shiraskar, the
defendant No. 4 in both the civil suits was the son of plaintiff
Shaymrao Shankarrao Shiraskar and the brother of another
plaintiff Madhukar Shyamrao Shiraskar. In the auction
conducted by the Forest Department of the tree felled in
Coup No.24 in question, the defendant No.4 was the highest
bidder for an amount of Rs.15,100/- on 27.11.1971. Upon
acceptance of his bid, he paid an amount of Rs.1,000/- and
the balance amount was required to be paid in four equal
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installments of Rs.3,775/- each. The first installament was
due on 19.01.1972, when the defendant No.4 paid an
amount of Rs.2,775/- plus sales tax which is at Rs.528.35
and his sale was confirmed. The defendant No.4 failed to
pay 2nd, 3rd and 4th installments due on 01.02.1972,
01.03.1972 and 01.04.1972 respectively.
5] The petitioner Shyamrao Shirsaskar was the surety
for payment of this amount by the defendant No.1. In view of
the default on the part of defendant No.4, the properties i.e.
agricultural lands owned by the plaintiff Shyamrao were
attached on 15.02.1973 and 18.02.1973 bearing Survey Nos.
207/1 and 234/2, admeasuring total 18.71 acre for recovery
of Rs.11,325/-. It was sold in auction to the defendant No.3
for Rs.18,200/- on 04.12.2014. However, by virtue of interim
order passed by this Court, the appellant remained in
possession of the property. The sale also remained to be
confirmed in view of the orders passed by the lower Courts.
6] On the plea raised by the plaintiffs that the
security bond was signed without knowing and understanding
the contents of it, the Courts below concurrently recorded
the finding against the plaintiff and it is held that the plaintiffs
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have failed to establish that the security bods were void and
illegal. In respect of the contention that the attached property
was a joint family property in which the plaintiff Madhukar had
3/5th share, which could not have been attached in the
absence of he being a surety in the matter, the lower
appellate Court proceeds on the footing that it was an
ancestral and joint family property, but records the finding
that it was a joint family business of the plaintiffs and the
defendant No.4. These concurrent findings of fact recorded
by the Courts below are based on oral as well as
documentary evidence produced on record and no
substantial question of law has either been framed or arises
for consideration by this Court.
7] There is nothing on record to show the quantity
of fell trees which were purchased by the defendant No.4 in
auction for an amount of Rs.15,100/-. The auction was
confirmed on 25.12.1971 and the defendant No. 4 had
deposited an amount of Rs.3,303.35 inclusive of installment
of Rs.3,775/- with the defendant Nos. 1 and 2. The
defendant No.4 started working in the coup from 31.01.1972
and this was stopped by the Department on 11.05.1972.
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There is nothing on record to show the quantity of felled trees
which the defendant No.4 took out on transit pass from the
Forest coup No.24 where it was lying. The property belonging
to the plaintiffs was attached for recovery of Rs.11,325/- and
the felled trees lying in Coup No. 24 were reauctioned and
amount of Rs.12,000/- was recovered.
8] The stand of the respondent Nos. 1 and 2 in the
written statement was that the material in Coup No. 24 of
felled trees became absolute property of the Government on
termination of contract of the defendant No.4 and it was sold
in auction. It was also the stand taken in the written
statement against the balance due of Rs.11,325/- that the
Government could realized only Rs.7,503.50 after deducting
the expenses.
9] In the aforesaid background of factual position,
the provisions of Section 82 and 83 of the Indian Forest Act
are required to be seen and hence, the same are reproduced
below.
82.Recovery of money due to Government.--All money
payable to the Government under this Act, or under any
rule made under this Act, or on account of the price of any
forest produce, or of expenses incurred in the execution of
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this Act in respect of such produce, may, if not paid when
due, be recovered under the law for the time being in force
as if it were an arrear of land-revenue.
83. Lien on forest-produce for such money.--(1) When
any such money is payable for or in respect of any forest-
produce, the amount thereof shall be deemed to be a first
charge on such produce, and such produce may be taken
possession of by a Forest-officer until such amount has
been paid.
(2) If such amount is not paid when due, the Forest-officer
may sell such produce by public auction, and the proceeds
of the sale shall be applied first in discharging such
amount.
(3) The surplus, if any, if not claimed within two months
from the date of the sale by the person entitled thereto,
shall be forfeited to Government.
10] In view of the provisions of Section 82, the
amount of balance installment of Rs.11,325/- was required to
be recovered along with the expenses incurred as if it was an
arrears of land revenue. Such amount creates a first charge
of the Forest produce sold to the defendant No.4 in the
auction in terms of sub-section (1) of Section 83. Accordingly,
the defendant Nos. 1 and 2 have taken possession of the
Forest produce and since the amount was not paid, the same
was sold in exercise of powers conferred by sub-section (2)
of Section 82 for an amount of Rs.12,000/-. This amount was
required to be applied for discharge of Rs.11,325/- not paid
by the defendant No.4. In spite of this, if certain amounts
remained to be due against the defendant Nos. 4, then only
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the plaintiff could have been proceeded against on the basis
of security bond by attaching the agricultural lands bearing
Survey Nos. 207/1 and 234/2, admeasuring 18.17 acres,
situated at Mouza-Pardi. It was open for the plaintiff to get
the security discharged by paying the balance amount due
against the defendant No.4.
11] In the decision of the Apex Court in case of State
of Madhya Pradesh vrs. Kaluram, reported in AIR 1967 SC
1105, the provisions of Section 141 of Indian Contract Act
has been considered in the background of claim under
Sections 82 and 83 of the Indian Forest Act and it is held in
paragraph 11 as under;
"11. Kaluram by executing the surety bond had
undertaken to discharge the liability arising out of any act,
omission, negligence or default of the forest contractor.
The surety Kaluram contends that because the State lost
or parted with the security he stood discharged. By S.140
of the Indian Contract Act, 1872, where a guaranteed debt
has become due, or default of the principal debtor to
perform a guaranteed duty has taken place, the surety,
upon payment or performance of all that he is liable for, is
invested with all the rights which the creditor had against
the principal debtor; and by S.141 it is provided :
"A surety is entitled to the benefit of every security
which the creditor has against the principal debtor at the
time when the contract of suretyship is entered into,
whether the surety knows of the existence of such
security or not; and, if the creditor loses, or, without
consent of the surety, parts with such security, the surety
is discharged to the extent of the value of the security."
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The State had as already observed, a first charge over
the goods: the State was also entitled to prevent the
goods from being removed without payment of the
amount of instalments due. The expression "security" in
S.141 is not used in any technical sense: it includes all
rights which the creditor had against the property at the
date of the contract. The surety is entitled on payment of
the debt or performance of all that he is liable for, to the
benefit of the rights of the creditor against the principal
debtor which arise out of the transaction which gives rise
to the right or liability: he is therefore on payment of the
amount due by the principal debtor entitled to be put in
the same position in which the creditor stood in relation to
the principal debtor. If the creditor has lost or has parted
with the security without the consent of the surety, the
latter is, by the express provision contained in S.141,
discharged to the extent of the value of the security lost or
parted with.
The plaintiff being surety, was entitled on
payment of debt or performance of all that he was liable for,
to the benefit of the rights of the creditors against the
principal debtor which arises out of transactions which gives
rise to the right and liability and he is, therefore, on payment
of the amount due by the principal debtor entitled to be put in
the same position in which the creditor stood in relation to the
principal debtor. It is held that if the creditor has lost or has
parted with the security without the consent of the surety, the
later is by the expressed provision contained in Section 141
of the said Act to the extent of the value of security lost or
part with.
12] In the present case, the respondent Nos. 1 and
2 having sold the Forest produce for an amount of
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Rs.12,000/-, have lost the security to which the surety was
entitled to against the principal debtor. There is nothing on
record to show that the plaintiff was called upon either to give
his consent for sale of the property or for the auction of the
Forest produce, which were sold to the defendant No.4. The
attachment of the property and its sale was, therefore, illegal
and void so far as the plaintiff is concerned. Such a sale
cannot be confirmed. The substantial questions of law at
Sr.Nos. 2 and 5 are answered accordingly.
13] Shri Khamborkar, the learned counsel appearing
for the appellant in both these appeals submit that the
plaintiffs are prepared to pay the balance of Rs.7,504/- with
interest at the rate of 6% per annum from 01.04.1972 till this
date to the defendant Nos.1 and 2 within the period of three
months from today.
The statement is accepted.
14] In the result, the appeals are allowed. Judgment
and order dated 29.04.1992 passed by the trial Court in
Special Civil Suit Nos. 40 of 1974 and 33 of 1977 along with
the judgment and order dated 06.04.1992 passed by the
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lower appellate Court in Regular Civil Appeal Nos. 69 of 1992
and 76 of 1992 are hereby quashed and set aside. The
attachment of the properties of the plaintiffs on 15.02.1973
and 18.02.1973 is declared to be null and void upon the
plaintiffs depositing the balance amount of Rs.7,504/- with
6% interest per annum with effect from 01.04.1972 till this
date, within the period of three months from today. No order
as to costs.
JUDGE
Rvjalit
