Gujarat High Court

State Bank Of India vs Dhiren Prakash Kajriwal Special Power ... on 23 June, 2025

                                                                                                                  NEUTRAL CITATION




                              C/SCA/4391/2010                                      ORDER DATED: 23/06/2025

                                                                                                                  undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                      R/SPECIAL CIVIL APPLICATION NO. 4391 of 2010
                       ==========================================================
                                          STATE BANK OF INDIA
                                                 Versus
                       DHIREN PRAKASH KAJRIWAL SPECIAL POWER OF ATTORNEY HOLD &
                                                 ORS.
                       ==========================================================
                       Appearance:
                       MR TEJAS SATTA WITH MR AC GANDHI(322) for the Petitioner(s) No. 1
                       MR VIKRAM J THAKOR(2221) for the Respondent(s) No. 1,2
                       RULE SERVED for the Respondent(s) No. 3
                       ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
                                          Date : 23/06/2025

                                                             ORAL ORDER

1. The present writ application has been filed under Article

227 of the Constitution of India seeking the following relief:-

"(A) Call for records and proceedings of Execution Petition No. 117/2009 of the City Civil Court, Ahmedabad and be further pleased to quash and set aside (i) the impugned order dated 5/3/2010 passed below Execution Petition No. 117/2009, (2) order below applications Exh. 31 and 32 both dated 5/3/2010;

(B) Stay operation and implementation of orders dated 5/3/2010 passed below Execution Petition No. 117/2009 together with orders passed below applications Exh. 31 and 32 filed in the said Execution Petition.

(C) Any other relief or reliefs as may be deemed just and proper in the facts and the circumstances of the case, may be granted.

(D) Allow this petition with cost."

2. THE SHORT FACTS OF THE CASE

2.1. The petitioner herein is a public sector bank

(hereinafter referred to as 'the Bank'), who stood as a

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

guarantor for respondent nos. 3 and 4 herein, who had raised

a money claim against the predecessor of respondent nos. 1

and 2, whereas respondent nos. 1 and 2 are the judgment

creditors (hereinafter referred to as 'the judgment creditors').

2.2. It appears that a money suit filed by respondent nos. 3

and 4 herein against the predecessor of the judgment creditors

came to be decreed on 06.05.1981 by the competent Civil

Court at Ujjain in Civil Suit No. 218 of 1980, which was

passed ex parte.

2.3. It further appears that an execution petition, being

Darkhast No. 683 of 1981, came to be filed by respondent nos.

3 and 4 against the predecessor of the judgment creditors in

the City Civil Court, Ahmedabad for recovery of the amount.

2.4. It further appears that during the pendency of such

execution, the decretal amount came to be deposited by the

predecessor of the judgment creditors with the Court on 25-11-

1981. At the same time, he had approached the competent

Civil Court for setting aside such decree, wherein having not

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

got any relief, he approached the High Court of Madhya

Pradesh at Indore by way of Misc. Appeal No. 108 of 1982,

which came to be allowed by the High Court on 18.04.1983,

whereby it had set aside the judgment and money decree.

2.5. It further appears and having not disputed that during

the pendency of the execution, respondent nos. 3 and 4, on

submitting a bank guarantee issued by the Bank on

30.04.1982, had withdrawn the decreetal amount deposited by

the predecessor of the judgment creditors.

2.6. The said ex parte decree having been set aside by the

High Court, as per the rule of restitution, The predecessor of

judgment creditors had instituted a recovery application against

respondent nos. 3 and 4 as well as the Bank, being

Miscellaneous Civil Application No.759 of 1983 in Execution

Application No. 683 of 1981 on 24.10.1983.

2.7. The Bank did not appear and contest the application,

while respondent nos. 3 and 4 herein had filed their reply.

Nonetheless, after hearing, the Executing Court allowed the

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

aforesaid application vide its order dated 03.05.1984, whereby

it permitted the predecessor of the judgment creditors to

recover a sum of Rs.1,24,626.68 with 18% interest from 25th

November 1981 till its repayment.

2.8. It further appears that the Bank had challenged the

aforesaid order by filing an independent Civil Suit No. 4024 of

1988 before the City Civil Court, Ahmedabad, and prayed for

stay of the aforesaid order passed by the Executing Court and

also sought a declaration that the aforesaid order of the

Executing Court be declared as null and void, as passed

against the provision of the Bank Guarantee executed by the

Bank on 30th April 1982. Further, it had been pleaded in the

suit that the predecessor as well as the judgment creditors, as

the case may be, is not entitled to recover any amount by

virtue of the aforesaid order passed by the Executing Court.

2.9. It appears from the record that initially, the Trial

Court did not granted any interim injunction in favour of the

Bank, so it had preferred Appeal from Order No. 334 of 1989

under Order XLIII Rule 1 of the Civil Procedure Code, 1908

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

(herein after referred as 'CPC') before this Court, which came

to be allowed vide its oral judgment and order dated 21st

January, 1995, whereby an interim injunction was granted and

the said appeal came to be partly allowed on the condition

that the Bank shall file an undertaking before the trial Court to

the effect that in case the plaintiff loses in the suit and is

required to pay the amount as prayed for in Civil

Miscellaneous Application No. 759 of 1983 and any other

amount as may be directed by the Court, the same shall be

deposited in the Court within a period of one month from the

date of the said order.

2.10. After recording the evidence and hearing all the

respective parties to the suit, the Trial Court, vide its judgment

and decree dated 29.03.2004, dismissed the suit. It is reported

to this Court that thereafter, the Bank has not preferred any

appeal, thereby making no challenge to such judgment and

decree whereby the suit came to be dismissed.

2.11. As a matter of course, in view of the dismissal of the

aforesaid suit, the Bank was supposed to deposit the amount as

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

ordered by the executing Court vide its order dated 3rd May

1984, passed in Civil Miscellaneous Application No. 759 of

1983 in Darkhast No. 683 of 1981, but it appears that the

Bank has neither obeyed said order of Executing Court nor its

undertaking so filed before the Civil Court as per the order

dated 21st January 1995 passed by this Court in the aforesaid

Appeal from Order No. 334 of 1989.

2.12. With these set of facts, the judgment creditors have

preferred Execution Application No. 117 of 2009 against the

Bank, which came to be allowed by the Executing Court vide

its judgment and order dated 05.03.2010, and it also turned

down all objections raised by the Bank.

3. Thus, being aggrieved and dissatisfied with the judgment

and order passed by the Eecuting Court, the Bank has

challenged the order impugned by way of the present writ

application.

4. SUBMISSION OF THE PETITIONER - BANK

4.1. Learned advocate Mr. Tejas Satta for learned advocate

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

Mr. A.C. Gandhi would submit that the orders impugned are

ex-facie illegal, erroneous, perverse, and against the principle

of bank guarantee.

4.2. Learned advocate Mr. Satta would submit that the

bank guarantee which was furnished by the Bank at the given

point of time was valid for a period of six months only and,

having expired, there was no liability on the part of the Bank

to pay any amount which had been withdrawn by respondent

nos. 3 and 4 herein.

4.3. Learned advocate Mr. Satta would submit that the

Bank was not a party to the suit proceedings instituted by

respondent no. 3 & 4 against the predecessor of the judgment

creditors and stood as a guarantor when respondent nos. 3 and

4 were permitted to withdraw the amount so deposited by the

predecessor of the judgment creditors.

4.4. It is submitted that when a bank guarantee is for a

stipulated period, which was never renewed, then after the

Bank would not be liable to pay any amount, so the bank

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

guarantee had already lapsed.

4.5. Learned advocate Mr. Satta would further submit that

without appreciating such crucial facts and the objections so

raised by the Bank before the Executing Court, it erroneously

allowed the execution against the Bank.

4.6. Learned advocate Mr. Satta would further submit that

when there was no liability on the part of the Bank to repay

the amount in favour of the judgment creditors, and any

liability which might arise was of respondent nos. 3 and 4,

then the Executing Court could have accepted the objections of

the Bank and ought to have directed respondent nos. 3 and 4

to pay any such amount to the judgment creditors.

4.7. Making the above submissions, learned advocate Mr.

Satta would request this Court to allow the present writ

application.

(JUDGMENT CREDITORS) 5.1. Learned advocate Mr. Vikram J. Thakor would submit

that the present writ application, at instance of the Bank, is

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

nothing but a misuse of the process of law, and as such, the

judgment creditors are deprived of their legitimate right to

receive the money which was due and payable to them since

1984, and thereby, the present application requires to be

rejected with costs.

5.2. Learned advocate Mr. Thakor would further submit

that the Bank, having challenged the order dated 3rd May

1984, passed by the Executing Court in the restitution

application so filed by the predecessor of the judgment

creditors by filing a civil suit, and having lost in such suit, has

no legitimate right to deprive the judgment creditors from

realizing the fruits of the order dated 3rd May 1984.

5.3. Learned advocate Mr. Thakor would further submit

that, as such, the Bank ought to have honoured the

undertaking given before the Civil Court as per the order

passed by this Court while partly allowing its Appeal from

Order, and by not honouring such undertaking given before

the Civil Court, the Bank, which is a public sector

undertaking, has disrespected the process of law.

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

5.4. Learned advocate Mr. Thakor would further submit

that the Bank could not have objected to the execution filed at

the instance of the judgment creditors, it having been filed

after the dismissal of the suit filed by the Bank challenging the

order of the Executing Court.

5.5. Learned advocate Mr. Thakor would respectfully

submit that as such, there is no error, much less any gross

error of law, committed by the Executing Court, and while

accepting the prayers of the judgment creditors, this Court,

while exercising its power under Article 227 of the Constitution

of India, may not interfere with the orders impugned.

5.6. Making the above submissions, learned advocate Mr.

Thakor would request this Court to reject the present

application.

6. Heard learned advocates appearing for the respective

parties at length. Though served, none appears for respondent

no. 3, and the present application stands dismissed against

respondent no. 4 as per the order dated 02.02.2011 passed by

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

this Court.

7. No other and further submissions are made.

8. Point for determination

(i) Whether, in the facts and circumstances of the case, any gross error of law and/or any jurisdictional error was committed by the executing Court while passing the impugned orders?

(ii) Whether the Bank can deny its obligation to pay the amount as per the order dated 3rd May 1984 passed by City Civil Court No. 7, Ahmedabad, in Civil Miscellaneous Application No. 759 of 1983 to Judgement Creditors?

9. Analysis

10. The facts, which are observed hereinabove, are not in

dispute. The facts are eloquent one, and the matter has a

checkered history, but it speaks volumes about the conduct of

a Bank, which is a public sector undertaking, who, having lost

in a legal battle instituted by it and on not honouring its

undertaking given before the Court, compelled the judgment

creditors to fight in a court of law and, having lost before the

Executing Court, brought them before this Court.

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

11. It remains undisputed that the Bank stood as a guarantor/

surety on behalf of respondent nos. 3 and 4 when they

withdrew the money deposited by the predecessor of the

judgment creditors in the execution filed by them. When the

predecessor of the judgment creditors succeeded in his

challenge before the High Court of Madhya Pradesh at Indore,

whereby the money decree which was passed by the competent

Civil Court at Ujjain in favour of respondent nos. 3 and 4 was

set aside, as per rule of restitution, they were supposed to

repay the amount deposited by the predecessor of the

judgment creditors in the execution, with interest.

12. Having not done so, it appears that the predecessor of

the judgment creditors instituted Miscellaneous Application No.

759 of 1983 against respondent nos. 3 and 4 as well as the

Bank and sought restitution, which came to be accepted by the

concerned Executing Court, whereby the Bank was directed to

pay Rs.1,24,626.68 with 18% interest from 25th November

1981 till payment. Such order was passed on 3rd May 1984,

which was challenged by the Bank before the City Civil Court,

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

Ahmedabad (Trial Court) by way of an independent Civil Suit

No. 4024 of 1988.

13. The Bank had secured an interim injunction pending the

suit, as Appeal from Order No. 334 of 1989, filed by the Bank

before this Court, came to be allowed on 21st January, 1995,

wherein a single Judge of this Court observed thus:-

"5. For the aforesaid reasons, the impugned order dated August 25, 1989 passed by the City Civil Court, Ahmedabad below notice of motion Ex.5/6 taken out in Civil Suit No.4024 of 1988 is reversed and set aside. The plaintiff bank shall be permitted to withdraw the entire amount of Rs.2,61,451.98 ps. (Rupees two lakhs sixtyone thousand four hundred fiftyone and paise ninetyeight only) deposited by it. The plaintiff Bank shall file an undertaking before the trial court to the effect that in case the plaintiff loses in the suit and is required to pay the amount as prayed for in Civil Misc. Application No.759/83 or any other amount as may be directed by the court, the samee shall be deposited in the court within a period of one month from the date of such order. It is further directed that if any of the parties to the suit request for expeditious hearing of the suit, the trial court shall try to hear and dispose of the suit as expeditiously as possible. Appeal is allowed to the aforesaid extent with no order as to costs."

(emphasis supplied)

14. So, in view of the aforesaid stay granted in favour of the

Bank on the condition of filing an undertaking, the Bank was

supposed to pay the amount as per the aforesaid order passed

by the Executing Court in Civil Miscellaneous Application No.

759 of 1983 after it lost in the aforesaid suit.

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

15. The Trial court framed the following issues before

proceeding with the trial of the said civil suit filed by the

Bank and answered them accordingly, which are as under:-

"1. Whether it is proved that the present suit is maintainable?

2. Whether the suit is barred on principle resjudicata or any such analogous provision?

3. Whether the plaintiff proves that the order passed on 3-5-84 in C.M.A.no.759 of 1983 is void ab initio, illegal and against the provisions of Bank Guarantee executed by plaintiff?

4. Whether the plaintiff is entitled to the relief as prayed for?

5. What order and decree?

8. My findings on the above issues are as follows for the reasons given herein after:-

1. In negative.

2. In affirmative

3. To negative.

4. In negative.

5. As per final order."

(emphasis supplied)

16. Thus, after the recording of evidence, the trial Court

concerned dismissed the suit filed by the Bank vide its

judgment and decree dated 29.03.2004. It is reported to this

Court that the Bank has not challenged such judgment and

decree by filing any regular appeal before this Court.

17. Once the Bank lost in its attempt to challenge the order

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

dated 3rd May, 1984 passed by the Executing Court in Civil

Miscellaneous Application No. 759 of 1983, whereby it was

liable to pay the amount in favour of the judgment creditors,

and having so filed an undertaking before the Civil Court as

per the said order dated 21st January, 1995 passed by this

Court in Appeal from Order No. 334 of 1989, the Bank was

required to pay/deposit the amount, whereby the judgment

creditors could realize the fruits of the aforesaid order dated

3rd May, 1984. Instead of honouring its undertaking given

before the Civil Court, the Bank has compelled the judgment

creditors to first file their execution, being Execution Petition

No. 117 of 2009, and thereafter raised several objections to the

aforesaid execution and, having failed in their attempt, came

before this Court and also secured a stay which has been

operating all throughout for these many years.

18. Having analyzed the aforesaid facts, I am pained and also

after going through the above-referred different

orders/judgments passed by the Executing Court, this Court,

and also the trial Court in the aforesaid different proceedings,

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

none of the arguments canvassed by learned advocate Mr.

Satta appeal to this Court, as the Bank, once having lost in its

suit and having failed to challenge the aforesaid order dated

3rd May 1984 passed by the Executing Court, has no

legitimate right available with it to disrespect such an order

passed by a competent court, that too after filing an

undertaking as referred to hereinabove.

19. So far as the argument canvassed by learned advocate

Mr. Satta that the bank guarantee which was submitted by the

Bank at the given point of time had outlived its life and no

longer exists is thoroughly misconceived, not only on facts but

also on law. Once the Bank, having reiterated such a

contention before the trial court in its suit, which has been

negated by the answering of issue nos. 3 and 4 respectively,

the Bank has no right to reiterate such an issue again and

again, that too in an execution petition.

20. Furthermore, this Court, while exercising its jurisdiction

under Article 227 of the Constitution of India, has its own

limitations and, thereby, cannot interfere in every order passed

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

by the trial courts or executing Court unless it is shown that

the order impugned is erroneous, perverse, contrary to the

principles of law, and so arbitrary. None of such factors has

been made out by the Bank and are not even germane from

the record of the case. [See Sameer Suresh Gupta TR PA

Holder vs. Rahul Kumar Agarwal, reported in (2013) 9 SCC

374 (Paras. 6 and 7) and Garment Craft v. Prakash Chand

Goel, reported in (2022) 4 SCC 181 (Paras. 15 and 16)].

21. As this Court has not entertained the present application,

the Bank is required to deposit the amount due and payable to

the judgment creditors as per the order dated 3rd May 1984

passed by the executing Court in Civil Miscellaneous

Application No. 759 of 1983, by honouring its undertaking so

given as per the order dated 09.04.2010 passed by this Court

in the present application as well. Relevant observations made

by this Court in paragraph-6 of its said order, which reads as

under:-

"6. The Court finds substance in the submissions made by the learned advocate for petitioner. Hence 'Rule'. Learned advocate Mr.Patel waives service of rule. Interim relief in terms of para 5(B). The Registry is directed to send writ of

NEUTRAL CITATION

C/SCA/4391/2010 ORDER DATED: 23/06/2025

undefined

this Court to the executing court so as to avoid a contention being taken to the effect that, 'the court was not served with the order of this Court'. The Registry shall see to it that order is communicated today itself. The amount deposited by the Bank in the Court be returned to the Bank on Bank filing an undertaking that, 'in the event if finally the bank is held liable to pay any amount, the same will be paid by the bank according to the order of the court within a period of one month from the date of the order'. Undertaking shall be filed within one week from today and within further one week the amount be returned as directed hereinabove."

(emphasis supplied)

22. So, the Bank is hereby directed to deposit such amount

within a period of one month from today as directed. Once

such amount is deposited by the Bank with the Executing

Court, the Court concerned shall intimate about such deposit

to respondent nos. 1 and 2 herein (judgment creditors) and, on

proper verification, release such amount in favour of the

judgment creditors and or their legal heirs/their successor in

interest in accordance with law.

23. Conclusion

23.1. With the aforesaid observations, directions and reasons

and in light of the aforesaid facts and circumstances of the