Himachal Pradesh High Court

And vs Chotta Ram on 31 May, 2022

Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                 ON THE 31st DAY OF MAY, 2022
                           BEFORE
       HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN, JUDGE




                                                        .
                              &





    HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA, JUDGE
              CIVIL WRIT PETITION NO. 1658 OF 2020
       Between:





       HP STATE INDUSTRIAL DEVELOPMENT
       CORPORATION LIMITED, NEW BUILDING,
       CART ROAD, SHIMLA1, THROUGH LAW
       OFFICER.





       (BY MR. VIKRANT THAKUR, ADVOCATE)

       AND
                  r                              ...PETITIONER

       1.   DIVISIONAL       COMMISSIONER,
       SHIMLA DIVISION, SHIMLA.
       2.   DISTRICT  COLLECTOR,       NAHAN,
       DISTRICT SIRMAUR, H.P.



       3.   NAIBTEHSILDAR,     SUBTEHSIL,
       NARAG,   TEHSILPACHHAD,   DISTRICT
       SIRMAUR.




       4.   RAM MURTHI SAREEN, S/O LATE
       SH. HANS RAJ, R/O INDUSTRIAL AREA,





       SONIPAT, HARYANA131001
       5.   RAJIV S/O SH. PADAM SINGH,
       VILLAGE AND POST OFFICE SHAMLECH





       TEHSIL & DISTRICT SOLAN, H.P.

                                                 ...RESPONDENTS

       (BY   ASHOK     SHARMA,   ADVOCATE
       GENERAL, MR. RAJINDER DOGRA, SR.
       ADDL. AG, MR. VINOD THAKUR, MR. SHIV
       PAL MANHANS, ADDL. AGS, MR. YUDHBIR
       SINGH THAKUR, DY. AG AND MR. RAJAT
       CHAUHAN, LAW OFFICER, FOR R1 TO R
       3)
       (MR. HARISH SHARMA, ADVOCATE, FOR
       R5.)




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                 1
                     WHETHER APPROVED FOR REPORTING?
                         This petition coming on for orders this day, Hon'ble Mr. Justice
                 Tarlok Singh Chauhan, passed the following :
                                                                  ORDER

The instant petition has been filed for the grant

of following substantive reliefs:

"(i) That a writ of certiorari may kindly be issued to the respondents to quash the impugned order dated 21.02.2019 (Annexure P1).

(ii) That the writ of mandamus may kindly be issued

for directing the respondents to reauction of the said property after calculating the interest part."

2. r The petitioner is a public sector undertaking of

Government of Himachal Pradesh and is registered as a

Company under the Companies Act, 2013.

3. The petitioner had advanced a loan of

Rs. 91,21,000/ in the year 199899 in favour of a company,

namely M/s Woodland Lamps (Pvt.) Ltd. The company in

turn, had mortgaged its land, building, plant and machinery

as primary security and it also mortgaged collateral security

of 3rd party, i.e. one Ram Murthi Sareen (respondent No. 4

herein), who was neither director nor promoter, but had

offered collateral security to the extent of Rs. 18,50,000/.

As per Clause 5 of the Deed it had been made explicitly clear

that if the company failed to pay the amount, then,

respondent No. 4 would pay the entire amount alongwith

interest.

Whether reporters of Local Papers may be allowed to see the judgment ? Yes.

4. Respondent No. 4 provided collateral security by

becoming a guarantor and mortgaged his land comprised in

Khasra No. 581/328, 582/328, 586/333, 336, 508, 516,

518, 495, 496 and 497, total measuring 3610 bighas,

situated at Mauza Kuftoo, ThaleriKiBer, SubTehsil Narag,

District Sirmaur.

5. On 26.04.2003, the petitionercorporation

issued a show cause notice to the guarantor, asking him to

deposit an amount of Rs. 18,50,000/ alongwith interest,

but the guarantor failed to do so. Thereafter, the petitioner

corporation took over primary assets of the unit under

Section 29 of the State Financial Corporation Act, 1951 and

sold the same in an open auction and adjusted the sale

proceeds in the loan account of the company.

6. The petitioner issued recovery certificate to the

District Collector, Sirmaur, seeking recovery of Rs.

18,50,000/ alongwith interest from Ram Murthi Sareen.

The Collector in turn attached the property of Ram Murthi

Sareen and the same was sold in an open auction to one

Rajiv Thakur for a sum of Rs. 18,65,000/.

7. It is the specific case of the petitioner that at the

time of issuance of advertisement dated 04.06.2016, the

petitionercorporation due to bonafide mistake forgot to

calculate the interest part while fixing the reserve price of

auction.

8. On the other hand, since Rajiv Thakur had

purchased the property, he accordingly requested the

Collector to issue Sale Certificate in his favour, which was

opposed by the petitioner. According to the petitioner,

auction conducted by the Collector under Section 85 of the

Himachal Pradesh Land Revenue Act, 1954 (for short "the

Act"), was in violation of the provisions of the Act,

whereunder, auction purchaser was required to deposit

entire amount on the same day, but the auction purchaser

had failed to do so.

9. The petitionercorporation then approached the

District Revenue Officer, who had confirmed the sale held on

24.06.2016 by filing objections. However, the same was

dismissed, constraining the petitioner to file an appeal under

Section 96 of the Act, for setting aside order dated

11.07.2016, as passed by the District Revenue Officer. The

objections came to be dismissed constraining the petitioner

to file the instant petition for the reliefs, as already set out

hereinabove.

10. The respondents have contested the petition by

filing reply, wherein one of the objections, as raised in para

12 of the petition, is that the objection to the sale under

Section 96 of the Act could have been filed only within 30

days and having failed to do so, both the authorities below

be it the District Revenue Officer and for that matter

Divisional Commissioner, Shimla, could not have

entertained much less decided the lis on merits.

11. In such circumstances, this Court is required to

consider the objections of the respondents, as it go to the

root of the case and in case accepted, the petition is liable to

be dismissed on this ground alone.

12.

rIt is apt to reproduce Section 96, as also

Section 97 of the Act, which reads as under :

"96. Application to set aside sale (1) At any time within thirty days from the date of the sale, application may be

made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing on conducting it.

(2) But a sale shall not be set aside on that ground

unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of the irregularity or mistake.

97. Order confirming or setting aside sale (1) After the expiration of thirty days from the date of the sale, if such an application as is mentioned in the last foregoing section has not been made, or if such application has

been made and rejected, the Commissioner shall make an order confirming the sale, and if such application has been made and allowed, the Commissioner shall make an order setting aside the sale.

(2) An order made under this section shall be final."

13. It would be noticed that as per Section 96 of the

Act, time for setting aside an application for sale is only thirty

days, therefore, the moot question is whether an application filed

by the petitionerCorporation could have been entertained after

thirty days, that too without there being any application for

condonation of delay, under Section 27 of the Act.

14. This issue is no longer res integra, in view of the

judgment rendered by this Court in Civil Misc. Petition Main

(Original) No. 147 of 2021 titled Judhya Devi deceased through

her legal representatives Vs. Chotta Ram, decided on 16th

March, 2022, relevant paragraphs whereof read as under :

"15. As a matter of fact, the issue is no longer res integra in view of various judgments passed by this Court. I need only refer to one such judgment rendered by the learned

Single Judge of this Court (Hon'ble Mr. Justice V.K. Sharma, as his Lordships then was) in K.D. Sharma & Others vs. H.P. State

Cooperative Bank and another AIR 2011 HP 60 wherein it was observed as under:

"17. The Hon'ble Apex Court has further held as under in, Noharlal Verma v. District Cooperative Central Bank Limited,

Jagdalpur., AIR 2009 Supreme Court 664 : (2008 AIR SCW 7850), vide paras 27, 28 and 29:., "27. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a Court or an Adjudicating Authority has no

jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.

28. Subsection (1) of Section 3 of the Limitation Act, 1963 reads as under;

(3) Bar of limitation.(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal r preferred, and application made after the prescribed "period shall be dismissed although limitation has not been set up as a defence, (emphasis supplied)

29. Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in absence of such plea by the defendant, respondent or opponent, the Court or Authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation.

18. In Damodaran Pilial and others v. South Indian Bank Ltd., AIR 2005 Supreme Court 3460 : (2005 AIR SCW 4603), the Hon'ble Supreme Court has held that the statutory period of limitation for filing of a restoration application would be the date of order and not the knowledge thereabout, vide para 11

of the judgment, which is as under :

"The learned Judge, however, while arriving at the said finding failed and/or neglected to consider the effect of subrule (3) of Rule

106. A bare perusal of the aforementioned rule will clearly go to show that when an application is dismissed for default in terms of Rule 105, the starting period of limitation for filing of a rrestoration application would be the date of the order and not

the knowledge thereabout. As the applicant is represented in the proceeding through his Advocate, his knowledge of the order is presumed. The starting point of limitation being knowledge about the disposal of the execution petition would arise only in a case where an exparte order was passed and that too without

proper notice upon the judgment debtor and not otherwise. Thus, if an order has been passed dismissing an application for

default, the application for restoration thereof must be filed only within a period of thirty days from the date of the said order and not thereafter. In that view of the matter, the date when the decree holder acquired the knowledge of the order of dismissal of the execution petition was, therefore, wholly irrelevant."

19. To the similar effect is the law laid down by the Hon'ble Delhi High Court in Virender Kumar v. Maya Devi, 94 (2001) Delhi Law Times 848 (paras 3 and 4) and Punjab & Haryana

High Court in Smt. Dev Bala Seghal v. Devinder Pal Sehgal, 2002 (1) Civil Court Cases 32 (P&H) (paras 9, 11 and 12).

20. In Antonysami v. Arulanandam Pillai (Dead) by LRS and another, (2001) 9 Supreme Court Cases 658: (AIR 2001SC 2967: 2001 AIR SCW 4444), the following dictum of law has been laid down by the Hon'ble Supreme Court vide para 17 of the

judgment (Para 16 of AIR):

"The fixation of periods of limitation are bound to be to some extent arbitrary and may at .

times result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical, meaning of the words is the only safe guide. (See Nagendra Nath Dey v. Suresh Chandra Dey) The decree was enforceable immediately after the date specified in the decree i.e. 23.9.1966 for the decreeholder to deposit the consideration money. If the direction given in the decree to the judgment debtor to measure and demarcate the land by that date (23.9.1966) was not complied with the decree holder was free to execute the decree. The steps to be taken by the decreeholder in this regard are provided in Order 21 Rule 34(1) CPC."

21. In Ragho Singh v. Mohan Singh and others, (2001) 9 Supreme Court Cases 717 : (2001 AIR SCW 2351), the Hon'ble Apex Court has held that condonation of delay is not permissible in the absence of any application.

22. To the similar effect is the law laid down by this Court in

Kailash Distt. Cooperative Society v. Sher Singh and others, ILR 1986 HP 721 (paras 6 to 8).

23. In view of the above legal position, the irresistible conclusion

that emerges is that starting point of limitation in an application under Order 9 Rule 9(1) CPC is from "the date of order" and not "the date of knowledge".

24. Insofar as the submission on behalf of, the plaintiffbank

with regard to grant of permission to file an application for condonation of delay in moving the application under Order 9 Rule 9(1) CPC at this stage is concerned, suffice it to say that the same cannot be considered at this belated stage, as such a course would be in negation of the legal position enunciated in

the judgments referred to herein above."

16. Reference qua the same can conveniently be made to the Division Bench judgment of this court in The Karot Agriculture Cooperative Society Ltd vs. State of H.P. and others, CWP No. 3052 of 2019, decided on 07.11.2019 wherein this Court after

relying upon the earlier Division Bench judgment in The Kailash District Cooperative Marketing and Supply Federation Ltd., Dhalli vs. Sher Singh Mehta and others, AIR 1988 HP 1, observed as under:

"3. It is not in dispute that even though respondent No.4 did not file any separate application under Sections 5 and 14 of the

Limitation Act, yet the revision petition filed by him came to be allowed by respondent No.2 vide its order dated 03.06.2019.

4. Now the moot question is whether such course could have been adopted by respondent No.2 especially when the petition filed by respondent No.4 was admittedly time barred.

5. Section 94 of the Act under which the petition had been filed provides for 90 days' period of limitation from the date of the communication of the order sought to be reviewed/revised and reads as under:

"94. Review and Revision:

(1) The State Government except in a case in r which an appeal is preferred under section 93 may call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate

to him or acting on his authority and may pass thereon such orders as it thinks fit.

(2) The Registrar may at any time:

(a) review any order passed by himself;

(b) call for and examine the record of any inquiry or inspection held or made under this Act of the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such order thereon as he thinks fit;

Provided that before any order is made under subsection (1) and (2), the State Government .

or the Registrar as the case may be shall afford to any person

likely to be affected adversely by such orders an opportunity of being heard.

"Provided further that every application under subsection(1) and (2), to the State Government or the Registrar, as the case may be shall be made within ninety days from the date of the communication of the order sought to be reviewed or revised."

The section empowers the State Government and the Registrar to review and revise certain orders or proceedings made or held under this Act."

6. As regards the applicability of Limitation Act to the

proceedings under the H.P. Cooperative Societies Act and the further question whether a time barred appeal/petition filed without a separate application for condonation of delay can be entertained or not, is no longer res integra in view of the

authoritative pronouncement of a learned Division Bench of this Court in The Kailash District Cooperative Marketing and Supply Federation Ltd., Dhalli vs. Sher Singh Mehta and others, AIR 1988 HP 1, wherein it was observed as under:

"5. Now the jurisdiction which vested in the Registrar to condone the delay in filing the appeal under Section 5 of the Limitation Act certainly could not be invoked in a case of this type where the appellant had conceded its inability to show sufficient cause for not filing the appeal within time. In fact no prayer can be said to have been made by the appellant seeking condonation of delay in filing its appeal and in the absence of such a prayer, the Registrar in our view had certainly no jurisdiction to condone the delay under Section 5 of the Limitation Act, which confers a discretionary jurisdiction in the appellate authority to condone delay but only after it is satisfied that there was sufficient cause

for condoning such delay. In the instant case, therefore, the Registrar in our view had no option but to dismiss the appeal in terms of Section 3 of the Limitation Act.

7........The order passed in a time barred appeal by the Registrar

under Section 93(2) of the Act is directly under challenge in

these proceedings and it is certainly for this court to examine if the order suffers from any error of law or other infirmity so as to call for interference by this Court in exercise of its writ jurisdiction. As earlier observed, the order of the Registrar

allowing the appeal of the appellant under Section 93(2) of the Act suffers from an apparent error of law inasmuch as the Registrar had entertained a time barred, appeal without any prayer being made to him for condoning the delay much less a sufficient cause being shown to him for such condonation. He

had, in the circumstances, no option but to dismiss the appeal as time barred in terms of the provisions of S. 3 of the Limitation Act. Even if it be assumed that! he acted within his jurisdiction in entertaining 'and allowing the appeal, he exercised the jurisdiction in complete violation of law and his order, therefore is totally unsustainable. The learned single Judge had rightly

quashed that r order."

7. The Hon'ble Supreme Court in Ragho Singh vs. Mohan Singh, (2001) 9 SCC 717, V.M. Salgaocar and Bros. vs. Board of Trustees of Port of Mormugao and another, (2005) 4 SCC 613, Noharlal Verma vs. District Cooperative Central Bank Ltd.,

Jagdalpur (2008) 14 SCC 445 and Sneh Gupta vs. Devi Sarup and others (2009) 6 SCC 194, has held that if a proceeding is initiated after expiry of period of limitation, it has to be dismissed, even though no such plea has been raised or defence has been set up. Further, it was held that the limitation goes to

the root of the matter and if suit, appeal or application is barred by limitation, the Court or Adjudicating Authority has no

jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits. Lastly, it has been held that in absence of any application for condonation of delay, the Court has no jurisdiction to proceed with the matter and

unless the delay is condoned, there can be no proceeding which can be decided on merits."

15. The settled proposition of law is that limitation goes to

the root of the matter and if a suit, appeal or application is barred

by limitation, the Court or adjudicating authority has no

jurisdiction, power or authority to entertain such suit, appeal or

application and to decide it on merits. If the proceeding is initiated

after expiry of period of limitation, it has to be dismissed. Even

though, no such plea has been raised or defense has been set up.

Further, in absence of any application for condonation of delay,

the Court or the authority has no jurisdiction to proceed with the

matter, unless the delay is condoned and there can be no

proceeding, which can be decided on merits.