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2016 (2) TMI 643 - HC - Indian LawsConcept of restitution - SARFAESI Act - possession of the subject mortgaged property - Held that - DCHL has failed to comply with the conditional order passed by the DRT to deposit ₹ 10 crores, and has merely deposited ₹ 1 crore that too long after the time stipulated therefor had expired. They have repeatedly used the judicial process to deny the petitioner their right to enforce the mortgage in terms of the provisions of the SARFAESI Act, to take possession of the subject mortgaged property, and to put it to sale. They have also violated the solemn undertaking given to this Court more than a year and a half ago to remove the machinery from the premises by 28.02.2014, and have continued to retain possession of the subject property in brazen defiance, and utter disregard, of the order of the Chief Metropolitan Magistrate and the order of the Division bench of this Court The judicial adventures of DCHL, to somehow or the other retain possession of the subject property culminating in the order of the Debt Recovery Appellate Tribunal have all come to naught. Yet they have not removed their machinery from the subject premises, possession of which was handed over to the petitioner by the advocate commissioner on 15.05.2013 more than two years. The petitioner has been unable either to recover its debt in excess of ₹ 62 crores, or to take exclusive and absolute control over the subject property. Even though sale of the subject property was confirmed in favour of the highest bidder in the auction held on 27.05.2015, the petitioner has not been able to deliver possession to him till date. The only way in which the petitioner can be restituted for the loss and injury suffered by them, on account of the interim order is if a direction is issued to the respondent police officers to provide them necessary assistance in taking absolute and exclusive control of the subject property, and to have the machinery and movables of DCHL removed therefrom. A writ of mandamus shall be issued accordingly. Notwithstanding the intransigence of DCHL, in failing to vacate the premises and remove the machinery therefrom, this Court cannot ignore the possibility of the expensive printing machinery of DCHL, lying in the subject premises, suffering extensive damage if sufficient safeguards are not taken while removing it therefrom. We consider it appropriate, therefore, to permit DCHL to remove its machinery and moveables from, and vacate, the subject premises by 31.08.2015. If they fail to do so by then, the respondent police officers shall, on a written request from the petitioner, provide them necessary assistance in having the machinery and other movables of DCHL removed from the subject premises without interference from either DCHL or any one else on their behalf. This order shall also not preclude the petitioner from initiating appropriate legal proceedings for damages on account of the loss and injury suffered by them as a result of the repeated, albeit unsuccessful, forays by DCHL into the portals of this Court. Both the Writ Petitions are allowed with exemplary costs of ₹ 25,000/-, which DCHL shall pay the petitioner-bank within four weeks from today. The miscellaneous petitions pending, if any, shall also stand disposed of.
Issues Involved:
1. Doctrine of Restitution and its Scope 2. Restitution in Contempt Proceedings 3. Legal Duty of Police Officers to Enforce Court Orders 4. Power of Civil Courts to Direct Police Assistance in Execution of Orders 5. High Court's Power to Command Police Assistance for Enforcement of Orders 6. Execution of High Court Orders by Civil Courts 7. Alternative Remedy for the Petitioner 8. Adjudication of Civil Disputes under the Guise of Police Assistance 9. Self-Contradictory Prayers in the Writ Petition Detailed Analysis: I. Doctrine of Restitution: Its Scope The petitioner argued that the legal right conferred by the Chief Metropolitan Magistrate's order was negated by an interim order, rendering them remediless. They invoked the principle of "actus curiae neminem gravabit" (an act of the Court should prejudice no one) to seek restitution. The Court agreed, stating that the petitioner was entitled to restitution for the loss suffered due to the interim order. The Court emphasized that restitution aims to place parties in the position they would have been if the interim order had not existed. II. Restitution in Contempt Proceedings The Court clarified that while contempt proceedings can be initiated for violation of court orders, the jurisdiction under the Contempt of Courts Act is limited to imposing punishment for such violations. The injury suffered by the petitioner cannot be compensated in contempt proceedings. The petitioner was advised to seek restitution through Article 226 of the Constitution of India. III. Legal Duty of Police Officers to Enforce Court Orders The Court held that police officers have a public duty to enforce lawful court orders. The Court cited precedents where police assistance was directed to implement court orders. The Court emphasized that police officers are bound to obey such directions to ensure that court orders are faithfully enforced. IV. Power of Civil Courts to Direct Police Assistance in Execution of Orders The Court recognized the power of Civil Courts to direct police officers to render assistance in enforcing orders. The Court cited cases where police protection was ordered to prevent violation or disobedience of court orders, emphasizing that such power is necessary to meet the ends of justice. V. High Court's Power to Command Police Assistance for Enforcement of Orders The Court asserted its power under Article 226 of the Constitution to issue directions for enforcing its orders. The Court emphasized that this power is part of the basic structure of the Constitution and cannot be negated. The High Court can issue writs to ensure compliance with its orders, including directing police assistance. VI. Execution of High Court Orders by Civil Courts The Court rejected the argument that High Court orders must be executed through Civil Courts. The Court clarified that Rule 23(1) of the Writ Proceeding Rules, which allows Civil Courts to execute High Court orders, is limited to the recovery of costs. The High Court retains the power to enforce its orders directly. VII. Alternative Remedy for the Petitioner The Court dismissed the argument that the petitioner should approach the Chief Metropolitan Magistrate under Section 14(2) of the SARFAESI Act. The Court noted that the petitioner had already exhausted remedies under Sections 14(1) and (2) of the SARFAESI Act. The Court held that the petitioner was justified in invoking Article 226 of the Constitution for restitution. VIII. Adjudication of Civil Disputes under the Guise of Police Assistance The Court emphasized that it would not adjudicate civil disputes under the guise of police assistance. However, in this case, there were no disputed questions of fact requiring adjudication. The petitioner's right to take control of the property was already determined by the Division Bench's order, which had attained finality. IX. Self-Contradictory Prayers in the Writ Petition The Court found no inconsistency between the two limbs of the prayer in W.P.No.17935 of 2015. The first limb sought a declaration of the police's inaction as illegal, while the second limb sought a consequential direction for police assistance. The Court held that the prayers were complementary and not contradictory. Conclusion: The Court allowed both Writ Petitions with exemplary costs of Rs. 25,000, directing the respondent police officers to provide necessary assistance to the petitioner in taking absolute control of the subject property and removing DCHL's machinery. The Court permitted DCHL to remove its machinery by 31.08.2015, failing which police assistance would be provided to the petitioner. The Court also allowed the petitioner to initiate legal proceedings for damages due to the loss suffered.
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