M/S Mehta Brothers & Ors. vs Bank Of India
2011 Latest Caselaw 336 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                     RFA No. 224/2000
 %                                              20th January, 2011


M/S MEHTA BROTHERS & ORS.                         ...... Appellants
                                 Through:   Mr. Sanjeev Anand
                                            and Mr. Dibya Nishant
                                            and Mr. Vikram Singh,
                                            Advocates.
                      VERSUS


BANK OF INDIA                                     ...... Respondent

Through: Mr. Ashu Kansal, Adv./Bank of India

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the present of first appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned order dated 18.12.1999, by which, application of the

respondent/plaintiff for restitution under Section 144 CPC has been

allowed. Before proceeding further, I must note that in terms of

Section 141 of CPC, the procedure provided in the Code in regard to

suit shall be followed, as far as it can be made applicable, in all

proceedings in any Court of civil jurisdiction, meaning thereby, the

issue with regard to restitution to be granted under a final judgment

and decree will equally apply to the interim orders of a court.

2. The facts of the case are that the respondent/plaintiff filed a suit

for recovery of Rs.51,440.16 along with interest at the contractual rate

of 21.5% per annum which the counsel for the appellants states, was

originally a simple money suit but was amended subsequently on an

application of the respondent/plaintiff as one under Order 34 CPC i.e.,

the money suit became a suit on the basis of a mortgaged property. In

this suit, an application was filed by the present appellants/defendants

for return of the title deeds and certain FDRs against deposit of the

amount in the court and which at that stage, was calculated at

Rs.70,000/-. The trial court dismissed the application however, in

revision against that order, this court, vide its order dated 31.8.1989

directed the respondent/plaintiff/bank to return the title deeds and the

fixed deposit receipts on the appellants/defendants depositing an

amount of Rs. 76,000/-. The order of this court dated 31.8.1989 was

challenged by the respondent/plaintiff in the Supreme Court and the

Supreme Court vide its order dated 9.8.1995 allowed the appeal and

set aside the order of this court dated 31.8.1989 and directed status

quo ante, meaning thereby, the title deeds and the fixed deposit

receipts were to be returned to the respondent/plaintiff.

3. The respondent/plaintiff therefore moved the present application

under Section 144 CPC for return of the title deeds and the fixed

deposit receipts which it had given to the appellants/defendants

pursuant to the orders of this court dated 31.8.1989 and which was set

aside by the Supreme Court by its order dated 9.8.1995. It is this

application which was allowed by the impugned order dated

18.12.1999 and which is challenged in the present appeal.

4. Learned counsel for the appellants raised two main arguments.

The first argument was that since the suit in the meanwhile has been

decreed, this application for restitution is for an interim order and

cannot be allowed. The second argument was that the order of

restitution under Section 144 CPC could have been passed only by this

court which had passed the order dated 31.8.1989 and not the court of

first instance/trial court before which the suit was filed and was

decreed. Learned counsel for the appellant relies upon The State

Bank of Saurashtra Vs. Chitranjan Rangnath Raja & others

(1980) 4 SCC 516 and more particularly paras 20 and 21 which read

as under:-

"20. By Section 144 of the Code of Civil Procedure, 1908, as it stood prior to its amendment by the Code of Civil Procedure (Amendment) Act, 1976, the jurisdiction to grant restitution was conferred upon the "court of first instance". Since the amendment the expression "the court of first instance" has been substituted by "the court which passed

the decree or order". An explanation has been added to Section 144 by the Amendment Act of 1976, the relevant portion of which reads as under:

"Explanation.--For the purposes of sub-section (1) the expression „court which passed the decree or order‟ shall be deemed to include--

(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance."

In the instant case the appellant was the plaintiff and its suit was decreed by the trial court, i.e. the Court of Civil Judge, Senior Division, Gondal, on November 18, 1960. The present appellant by its letter dated February 14, 1961, demanded from the surety a sum of Rs 84,828.07 p. inclusive of costs and interest on the principal amount decreed. The surety respondent 1 in this Court paid the appellant Rs 84,828.07 p. on April 3, 1961. In the appeal by the surety the High Court reversed the decree and dismissed the suit against the surety. Accordingly, the surety is entitled to restitution.

21. The limited question is whether this Court can grant restitution. Prior to Amendment Act, 1976, an application for restitution under Section 144 in all cases had to be made to the court of first instance. Even since the amendment the substituted expression "the court which passed the decree or order" would, as per clause (a) of the explanation, mean the court of first instance because the expression "the court which passed the decree or order" has been deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance. The present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial court, i.e. the court of first instance, and this decree has been reversed by the High Court in exercise of its appellate jurisdiction. In such a situation, clause (a) of the explanation would be attracted and an application for restitution will have to be made to the court of first instance i.e. the Court of Civil Judge, Senior Division, Gondal. It is nowhere suggested that such a court does not exist. Therefore, it would not be proper for this Court to direct restitution. However, there will be no justification for the appellant Bank to withhold the amount which was collected from the surety on a mere demand. Therefore, an application for restitution made by the surety

would not lie to this Court and it would stand disposed of accordingly."

5. I am afraid, I am unable to agree with the submissions made by

learned counsel for the appellants. Firstly, merely because the suit has

been decreed does not mean that the order of the Supreme Court

dated 9.8.1995 will lose its efficacy. The orders of the Supreme Court

have to be complied with and merely because the suit has been

decreed in the meanwhile, the appellants cannot take undue

advantage by not returning the title documents and the fixed deposit

receipts which it had got pursuant to the order of this court dated

31.8.1989 and which was set aside by the Supreme Court by its order

dated 9.8.1995 under its appellate jurisdiction. Even the second

argument as raised by the learned counsel for the appellants is

misconceived and which is that it is only this court which could have

exercised powers under Section 144 CPC because allegedly this court

is the court of first instance qua the Supreme Court with reference to

the order dated 9.8.1995 of the Supreme Court directing restitution of

status quo ante. A reference to the provision of Section 144 and its

Explanation (a) leaves no manner of doubt that when an order is being

passed in exercise of appellate jurisdiction, it is court of first instance

before which an application under Section 144 would lie. The court of

first instance has to be the first court and not the court at a second

stage which exercises its jurisdiction, either appellate or revisional.

The court of first instance in the present case was the trial court before

which the suit was being tried and before which the application was

filed by the appellant for return of the title documents and the fixed

deposit receipts. In my opinion, the above quoted para 22 of the

decision of the Supreme Court in the case of The State Bank of

Saurashtra (supra) in fact applies, not in favour of the appellant but

in favour of the respondent because it clearly lays down that which is

otherwise said in the explanation (a) to Section 144 that the

application for restitution has to be filed before the court of first

instance. The court of first instance in this case has to be the court

which was hearing and deciding the suit and before which the

application was originally filed, i.e., the trial court in this case.

6. In view of the above, I do not find any merit in the appeal which

is dismissed leaving the parties to bear their own costs. Interim orders

stand vacated.

JANUARY 20, 2011                                     VALMIKI J. MEHTA, J.
ib