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TMI Blog2016 (2) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no order either of this Court, or of the Debt Recovery Tribunal, in force which prevented the police officers from rendering assistance to the petitioner. While making it clear that they had not issued any direction, as at present, to respondents 1 to 3 to give the petitioner police assistance, this Court clarified that there was no court order preventing respondents 1 to 3 from providing police aid, to the petitioner, if they so choose. Thereafter, the petitioner filed W.P.No.17935 of 2015 seeking a writ of mandamus declaring the action of respondents 2 to 6 in not providing police aid for implementation of the rule of law in discharge of their public duties, in terms of the representation dated 15.06.2015 made by the petitioner seeking necessary police protection for taking absolute control of the property i.e., land admeasuring 9892.6 sq. yards in Survey No.186 situated at Kondapur, as arbitrary, illegal and in violation of Articles 14 and 300-A of the Constitution of India. They sought a consequential direction to respondents 1 to 6 to take necessary steps to put them in absolute control over the property at Kondapur in furtherance of the acts initiated by them under the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apur village along with the buildings located thereupon. DCHL defaulted in repayment of the loan, which resulted in the petitioner classifying their account as a nonperforming asset (NPA). A notice dated 17.08.2012 was issued by the petitioner to DCHL recalling the credit facility, and calling upon them to clear the outstanding amounts due and payable under the credit facilities. The petitioner issued notice dated 25.10.2012, under Section 13(2) of the SARFAESI Act, to DCHL asking them to pay the petitioner the amounts due as on 15.08.2012 along with additional/penal interest. By way of the said notice, DCHL was informed that they were legally bound, under Section 13 (2) of the SARFAESI Act, not to transfer the mortgaged properties by way of sale or otherwise without the prior written consent of the petitioner. As DCHL, despite receipt of the Section 13(2) notice, failed to repay the amounts due, the petitioner initiated proceedings under Section 13(4) of the SARFAESI Act, and informed DCHL that they would take possession of the property on 07.01.2013 at 10.00 A.M. The petitioner claims that some persons, on behalf of DCHL, prevented the authorised officer from entering the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect to the property at Kondapur as on 15.05.2013, the advocate-commissioner sought to execute the warrant in Crl.M.P. No.123 of 2013 and, at 3.20 P.M. on 15.05.2013, he visited the subject premises along with the authorised officer of the petitioner-bank. At the request of the advocate-commissioner, the Station House Officer, Madhapur PS deputed an assistant sub-inspector of police and four constables to ensure that there was no resistance in taking over possession of the property. The advocate-commissioner conducted a panchanama, and is said to have delivered possession of the property to the authorised officer. W.P. No.14938 of 2013 was filed, by Deccan Chronicle Employees Union (hereinafter called the Union ) to declare the action of the petitioner in initiating proceedings under the SARFAESI Act, and in interfering and preventing the printing and publishing activity of Deccan Chronicle and Andhra Bhoomi newspapers as illegal, arbitrary and in violation of their fundamental rights. The jurisdiction of this Court was invoked by way of an urgent house motion during summer vacation. A Learned Single Judge of this Court by his order in WP No.14938 of 2013 dated 15.05.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, in the Writ Appeal as well as in the Writ Petition shall stand closed. The first respondent in W.A. No.679 of 2013 was the Union, and respondent No.4 was DCHL. Aggrieved by the order of the Division Bench in W.A. No.679 of 2013 dated 11.11.2013, DCHL carried the matter in appeal to the Supreme Court and, in its order in SLP (Civil) No.37891 of 2013 dated 17.12.2013, the Supreme Court recorded the request of the Learned Counsel for DCHL for permission to withdraw the SLP with liberty to approach the High Court by filing a review petition. The Supreme Court, while granting permission, dismissed the SLP as withdrawn with liberty as prayed for. DCHL filed W.P.No.5286 of 2014 challenging the vires of Section 2(1)(o) of the SARFAESI Act. They sought a declaration from this Court that the action of the petitioner-bank, in declaring their account as N.P.A, was contrary to the letter and spirit of Section 2(1)(o) of the SARFAESI Act; and the action of the petitioner-bank, in taking action against DCHL under the SARFAESI Act, was arbitrary and illegal. A Division Bench of this Court, by its order in WPMP No.6563 of 2014 in W.P.No.5286 of 2014 dated 03.03.2014, held that DCHL had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2014, that they undertook to comply with the order in W.A. No.679 of 2013 dated 11.11.2013, and in WPMP No.6563 of 2014 dated 03.03.2014. They requested him to consider postponing his proceedings, for vacating the premises, till Tuesday. They undertook to unconditionally, and without any coercion, leave the premises irrespective of whether there was any order from the management or not, and to peacefully vacate the premises by 10.00 A.M. on 19.03.2014. The said letter dated 15.03.2014 was attested by the General Manager, DCHL, despite which neither the Union nor DCHL have vacated the subject premises till date. The earlier order of the DRT, in SAIR No.167 of 2013 (later numbered as S.A.No.340 of 2013) dated 14.03.2013 was subjected to challenge by DCHL in WP No.8304 of 2014. A Division bench of this Court, by its order dated 19.03.2014, disposed of W.P. No.8304 of 2014 at the admission stage directing DCHL to deposit a demand draft for ₹ 1 crore with the petitioner-bank by the next day i.e., 20.03.2014. DCHL was also directed to deposit ₹ 4.5 crores on or before 31.05.2014, and another sum of ₹ 4.5 crores on or before 31.07.2014. The Division bench restrained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Writ Petition was dismissed, leaving it open to DCHL to avail its remedies under law. The Division bench made it clear that any observation, or finding made in the Writ Petition could not be construed as a finding of the Court, and it was only for the purpose of disposal of the Writ Petition. The DRT was also directed to dispose of the SA in accordance with law, uninfluenced by any observations made in the order. It is not in dispute that DCHL did not, thereafter, avail the statutory remedy of appeal. The petitioner-bank filed a contempt case alleging violation of the order passed by the Division bench in WA No.679 of 2013 and WP No.14938 of 2013 dated 11.11.2013, and to punish DCHL and the official respondents under the Contempt of Courts Act, which is said to be still pending. It is relevant to note that DCHL have not complied with the order of the DRT in S.A.No.340 of 2013 dated 14.03.2013 till date. While they are said to have deposited ₹ 1.00 crore long thereafter, the remaining ₹ 9 crores was not deposited at all. The petitioner bank issued sale notice dated 08.10.2014 under Rule 8(6) of the SARFAESI Rules (hereinafter called the Rules ) informing DCHL that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highest bidder has since deposited the entire sale consideration, the petitioner-bank is unable to deliver possession of the subject property to him as the respondent police officers have expressed their inability to provide assistance to them in taking absolute control of the subject property. Elaborate submissions were put forth by Sri S.Niranjan Reddy, Learned Counsel for the petitioner, the Learned Government Pleader for Home appearing on behalf of the official respondents, and Sri D.V. Sitaram Murthy and Sri Vedula Venkata Ramana, Learned Senior Counsel appearing on behalf of DCHL in W.P.No.10602 of 2015 and W.P.No.17935 of 2015 respectively. It is convenient to examine the contentions, urged by Learned Counsel on either side, under different heads. I. DOCTRINE OF RESTITUTION: ITS SCOPE: Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the legal right conferred on the petitioner, by the order of the Chief Metropolitan Magistrate in Crl.M.P.No.123 of 2013 dated 26.03.2013, stood negated by the interim order of this Court in W.P.No.14938 of 2013 dated 15.05.2013; as the petitioner is now rendered remediless, they have perforce invoked the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of the court to do so unless it feels that, in the facts and circumstances of the case, the restitution, far from meeting the ends of justice, would defeat the same. Undoing the effect of an interim order, by resorting to the principles of restitution, is an obligation of the party who has gained by the interim order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the Court at the stage of final decision, the Court earlier would not, or ought not to, have passed. An effort should be made to restore the parties to the same position in which they would have been if the interim order did not exist. (South Eastern Coalfields Ltd.2). While the petitioner can seek damages as compensation for the loss they suffered, and the benefits which the Union and DCHL gained by continuing to print and publish the newspapers under the protection of the interim order in W.P. No.14938 of 2013 dated 15.05.2013, they can also seek restitution from this Court. An act of the Court cannot prejudice anyone. This principle is based on the Latin maxim actus curiae neminem gravabit . The actus curiae principle is founded upon justice and g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restitution is based on the principle that, on the reversal of a judgment, the law imposes an obligation on the party, who received the benefit of the erroneous judgment, to make restitution to the other party for what he had lost; and it is the duty of the court to enforce that obligation. (Lal Bhagwant Singh v. Sri Kishen Das AIR 1953 SC 136 ; Essar Oil Ltd.,3; Binayak Swain v. Ramesh Chandra Panigrahi AIR 1966 SC 948 ) . The concept of restitution is a common law principle, and it is a remedy against unjust enrichment or unjust benefit. The core of the concept lies in the conscience of the Court which prevents a party from retaining the benefit derived from another which it has received by way of an erroneous decree of the Court. (Essar Oil Ltd.,3) . The obligation to restitute lies on the person or the authority that has received unjust enrichment or unjust benefit. (Essar Oil Ltd.,3; Halsbury s Laws of England, 4th Edn., Vol. 9, p. 434). That no one shall suffer by an act of the Court is not a rule confined to an erroneous act of the Court. The act of the court embraces, within its sweep, all such acts which the court may form an opinion in any legal proceedings that it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its which the interim order yielded, even though the battle is lost at the end. This cannot be countenanced. (South Eastern Coalfields Ltd.2). The litigation thereafter had no effect on the order of the Division Bench, in W.A.No.679 of 2013 and W.P.No.14938 of 2013 dated 11.11.2013, and, on the said order attaining finality, DCHL should have vacated the premises, and removed the machinery therefrom, which they have failed to do. It is only because the order of the Chief Metropolitan Magistrate, in Crl.M.P.No.123 of 2013 dated 26.03.2013, was interdicted by the interlocutory order, passed in WP No.14938 of 2013 dated 15.05.2013, was the petitioner prevented from enforcing its rights under the SARFAESI Act to have the machinery of DCHL, lying in the subject premises, removed therefrom. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made, but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding that they be placed in the same position in which they would have been had the Court not intervened by its interim or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontempt jurisdiction, is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. (Special Deputy Collector (LA) v. N. Vasudeva Rao (2007) 14 SCC 165; Union of India v. Subedar Devassy PV (2006) 1 SCC 613 ; Prithawi Nath Ram v. State of Jharkhand (2004) 7 SCC 261 ; and Lalith Mathur v. L. Maheswara Rao (2000) 10 SCC 285 ). In a proceeding for contempt, the High Court can decide whether contempt of court has been committed and, if so, what should be the punishment to be imposed, and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. Any direction issued, or decision made, by the High Court on the merits of a dispute between the parties will not be in the exercise of the jurisdiction to punish for contempt . (Midnapore Peoples Coop. Bank Ltd. v. Chunilal Nanda (2006) 5 SCC 399 ). The only remedy which the person who suffered an injury has, in this regard, is to invoke the jurisdiction of this Court under Article 226 of the Constitution of India seekin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narayana Tiwari17; and Rayapati Audemma18). The order of the Chief Metropolitan Magistrate in Crl.M.P. No.123 of 2013 dated 26.03.2013, and the order of the Division Bench in W.A. No.679 of 2013 and WP No.14938 of 2013 dated 17.05.2013, necessitated compliance by DCHL. Police officers are duty bound to enforce the law, including orders of Courts. The petitioners representation notwithstanding, the respondent police officers have expressed their inability to render them assistance in the absence of any specific direction or order from this Court. In the absence of an express provision for enforcement of its orders, it is not only proper but also necessary that Courts should render all aid to the aggrieved party to enable him to derive the full benefits of the order. While the aggrieved party can himself approach the police authorities seeking their assistance for enforcement of the order, there is no reason why, when the same person brings to the notice of the Court that enforcement of the order is sought to be prevented or obstructed, the Court should not exercise its inherent power and direct the police authorities to render all aid to the aggrieved party in the implementat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at enforcement of the order is sought to be prevented or obstructed, the Civil Court should not exercise its inherent power under Section 151 CPC, and direct the police authorities to render all aid to the aggrieved party in the implementation of the court order; the exercise of such power is necessary to meet the ends of justice or to prevent abuse of the process of court; the Civil Court has ample jurisdiction to pass such an order under Section 151 CPC; and the police are bound to obey such directions. However a slightly different view was taken by a Division Bench of this Court, in Polavarapu Nagamani v. Parchuri Koteshwara Rao 2010 (2) ALD 41 (DB , wherein it was held that in a situation, where threat of violation or disobedience is alleged by the party obtaining a prohibitory order, the Court has the power to direct the police to prevent such violation and disobedience by providing necessary protection to enforce the order of injunction; such police protection order, when there is a threat of disobedience, is justifiable under Section 94(e) read with Section 151 CPC; in a situation, where a complaint is made that the order of injunction granted by the Court, restraining or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the contents of the writs which are normally issued, provided the broad and fundamental principles that regulate the exercise of jurisdiction, in the grant of such writs, are not transgressed. Article 226 empowers the High Court to grant appropriate relief, and also to modify the form of relief according to the exigencies of each case, without being obsessed by the limitations of prerogative writs. There can be no higher purpose than the enforcement of orders of the High Court whereby the rights of a party are either confirmed or recognized. The power of the High Court under Article 226 of the Constitution of India, to enforce its own orders or the orders of the Civil Court, cannot be curtailed. (Satyanarayana Tiwari17; Calcutta Gas Company (Prop) Ltd.27; T.C. Basappa v. T. Nagappa AIR 1954 SC 440 ). As the police authorities owe a legal duty to enforce the law, citizens are entitled to seek directions, under Article 226 of the Constitution, for discharge of such duties by them. (Satyanarayana Tiwari17; Rayapati Audemma18; R. v. Commissioner of Police of the Metropolis Ex P. Blackburn (No.1)20). The High Court can be approached for issuance of a writ on the plea that a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executable decree which, in terms of Rule 23 of the Writ Proceeding Rules, can only be executed by the Civil Court; the order of the Division Bench dated 11.11.2013 requires execution through the process of Court, and not through police officers; the police officers can, at best, assist in execution of the order of the High Court through the process of the Civil Court i.e., the Court of the Principal District Judge which is a Court of unlimited jurisdiction; and, even in the absence of any specific provision, the High Court has the inherent power to direct the Civil Court to execute the order of the Division Bench dated 11.11.2013 which is an executable decree. The Civil Procedure Code prescribes the procedure for execution of decrees passed by a Civil Court of competent jurisdiction. There is no provision therein for enforcement of orders of the High Court. The jurisdiction of this Court, under Article 226 of the Constitution, is extremely wide, and the power to issue prerogative writs, orders or directions is not circumscribed by any limitation of its orders being required to be enforced only in execution proceedings by the Civil Court. Accepting this startling submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14(2) thereof; and, as the petitioner has an effective alternative statutory remedy, the jurisdiction of this Court, under Article 226 of the Constitution of India, cannot be invoked. Learned Senior Counsel would rely on Polavarapu Nagamani23; Vemula Prabhakar v. LAO and RDO, Peddapalli, Karimnagar Dt. 2002 (1) ALD 200 (FB) ; and the order of the Debt Recovery Appellate Tribunal in Appeal No.44 of 2015 dated 26.05.2015. Section 14 of the SARFAESI Act requires the Chief Metropolitan Magistrate or the District Magistrate to assist the secured creditor in taking possession of the secured asset and, under sub-section (1) thereof, where the possession of any secured asset is required to be taken by the secured creditor, or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metrop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by a Civil Court in a reference under Section 18 of the Land Acquisition Act; mere absence of the ingredients of coercion against the State, and/or Collector, in executing the decree, was no ground for by-passing such a civil remedy; the provisions contained in the Civil Procedure Code, dealing with the execution of a decree, were wide; it could not be said to be an ineffective remedy; the submission that an award made by a Civil Court, being a right of property under Article 300-A of the Constitution, can be enforced through a writ of mandamus could not be accepted; a decree passed, in terms of Section 18 of the Land Acquisition Act, was a money decree; and, if the aforementioned proposition was accepted, all money decrees, passed against the Government, could be directed to be executed through a writ of mandamus. In B. A. Bhavani29, a Larger Bench (5 Judges) of this Court held that the view taken by the Full Bench, in Vemula Prabhakar31, was bad, contrary to law, and was, accordingly, overruled. The plea of existence of an alternative remedy, requiring this Court to refrain from interference, does not therefore merit acceptance. (B). IS THE PETITIONER, UNDER THE GUISE OF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, should be resisted by the High Court. (P.R. Murlidharan19). A writ for police protection , so-called, has limited application to cases where the Court is approached for protection of the rights declared by a decree, or by an order passed by the Court. It cannot be extended to cases where rights have not yet been determined either finally by the Court or at least at an interlocutory stage in an unambiguous manner, and even then only in furtherance of the decree or order. (P.R. Murlidharan19). While exercising jurisdiction under Article 226, the High Court would not, collaterally, determine disputed questions of fact. (P.R. Murlidharan19). This Court would not exercise jurisdiction, under Article 226 of the Constitution of India, save on a clear case, of a legal injury having been caused to the person who has invoked its jurisdiction, being made out requiring its interference. While the need for police officers to ensure compliance of, and to enforce, orders of Court cannot be over emphasised, the need for them to tread warily in such matters must also be recognised. While interlocutory orders of Court can be varied in appeal or in revision, final orders of Court can also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench had directed DCHL to vacate the premises by 28.02.2014 and remove all machinery available therein. As possession of the subject premises was already handed over to them, the Division Bench also permitted the petitioner to take further steps to sell the property in order to recover the amount due to them. Consequent upon the review petition, in review WPMP No.1156 of 2014 in W.A.No.679 of 2013, being dismissed on 14.03.2014, the earlier order of the Division bench, in W.A.No.679 of 2013 and W.P.No.14938 of 2013 dated 11.11.2013, attained finality. In such circumstances there is no reason why this Court, in the exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India, should refrain from granting the petitioner the benefit of restitution. A mandamus shall issue to the respondent police officers to provide all necessary assistance to enable the petitioner-bank to remove the machinery of DCHL from, and to take absolute and exclusive control of, the subject premises. The petitioner s request for police assistance to enable them to be put in absolute control of the subject premises, must be seen in the context of the interim order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentation dated 15.06.2015; the first limb of the prayer contradicts the second limb; the twin prayers in the Writ Petition are self-contradictory; and, if the first limb of the prayer is granted, there would be no necessity to grant the second limb of the prayer, as grant of relief of the first limb would result in the petitioner achieving what it wanted. On the other hand Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the complaint in the Writ Petition is that police officers are not performing their public duties; no relief has been sought to direct police officers to dispose of the petitioner s representation; the petitioner has not only sought police aid in removing the machinery of DCHL, they have also sought assistance to take absolute and exclusive control over the subject property; they were unable to do so in view of the resistance offered by DCHL and their men; the Writ Petition does not emanate merely from the representation submitted by the petitioner to the police officers, but also from the subsequent event of the resistance offered by DCHL when the petitioner attempted to take absolute control in terms of the order of the Division b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the representation of the petitioner-bank seeking police aid. We see no inconsistency between the first limb and the second limb of the prayer as the second limb is merely a consequence of the first. In any event the High Court, while exercising jurisdiction under Article 226 of the Constitution, has the power to mould the relief taking into account the totality of the circumstances and the exigencies of the situation. (D. Satyanarayana v. N.T.Rama Rao AIR 1988 A.P. 144). VIII. CONCLUSION: DCHL has failed to comply with the conditional order passed by the DRT, in SA No.340 of 2013 dated 14.03.2013, 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, in WA No.679 of 2013 and WP No.14938 of 2013, to remove the machinery from the premises by 28.02.2014, and have continue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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