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2016 (2) TMI 643 - ANDHRA PRADESH HIGH COURT

2016 (2) TMI 643 - ANDHRA PRADESH HIGH COURT - TMI - Concept 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 SARF .....

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ow 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 t .....

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achinery 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 .....

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f 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. - WRIT PETITION NOS.10602 AND 17935 OF 2015 - Dated:- 28-7-2015 - SRI RAMESH RANGANATHAN AND SRI S. RAVI KUMAR, JJ. For The Petit .....

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te o f Telangana, and the Director General of Police, State of Telangana, Hyderabad) to take necessary steps for putting them in absolute control of land admeasuring 9892.6 sq. yards in Survey No.186 situated at Kondapur in furtherance of the acts initiated by them under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 (for short, the SARFAESI Act ), and followed by violation of the undertaking by the 4th respondent (the Deccan Chronicle Holdings Li .....

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ourt 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 contro .....

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3 before this Court. It is stated, in the affidavit filed in support of W.P.No.17935 of 2015, that the petitioner had approached respondents 1, 3 to 5 informing them that they intended to take absolute control over the property at Kondapur on 17.06.2015 at 11.00 A.M; they had, by their letter dated 15.06.2015, requested the respondent authorities to provide necessary police assistance/protection; the respondent-authorities had refused to provide protection on the pretext that there was no specif .....

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isted by the representatives, agents, henchmen of DCHL and their employees union; due to the inaction of respondents 1 to 6, in providing necessary assistance and police protection to them, the petitioner was unable to take absolute control of the property at Kondapur; DCHL still continues to stay in the subject property by running a printing press, contrary to the directions of this Court dated 11.11.2013, and in gross violation of the undertaking given by them to vacate the premises on or befo .....

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accorded sanction for a working capital demand loan facility of ₹ 50 crores which was availed by DCHL, and an equitable mortgage was created by them, in favour of the petitioner, by deposit of title deeds over an extent of 9892.6 sq. yards of land in Survey No.186 situated at Kondapur 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 17.08.201 .....

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fer 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 property, and they t .....

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point an advocatecommissioner to take actual physical possession of the property, and deliver it to the petitioner, if necessary, by providing police protection for taking possession of the property. By his order dated 26.03.2013, the Chief Metropolitan Magistrate, Cyberabad appointed an advocatecommissioner. The advocate commissioner was directed to take possession of the property and hand it over to the petitioner, if required, by taking necessary assistance from the concerned police after put .....

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ioner under Section 13(4) of the SARFAESI Act. By its order dated 14.03.2013, the DRT directed DCHL to deposit with the petitioner a sum of ₹ 10 Crores (Rs.5 Crores within four weeks from the date of the order i.e., 14.03.2013, and the balance ₹ 5 Crores within four weeks thereafter). The petitioner was directed to defer all further proceedings, in respect of the subject property and other properties, until further orders. The DRT observed that, in the event DCHL failed to deposit th .....

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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 .....

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f this Court by his order in WP No.14938 of 2013 dated 15.05.2013, while posting the Writ Petition for admission in the next vacation Court, directed the petitioner herein, or any one claiming through them, not to prevent the Union from undertaking the activity of printing and publishing the newspapers. The Station House Officer, Madhapur PS was directed to extend co-operation in this regard. The Learned Single Judge also directed that attachment of the property, if any, would continue. Aggrieve .....

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of printing and publishing the newspaper. Thereafter, both W.A.No.679 of 2013 and W.P.No.14938 of 2013 were finally disposed of by order dated 11.11.2013. The relief sought for in this Writ Petition is largely based on the said order dated 11.11.2013 which reads thus:- ………….With the consent of counsel appearing for the parties, we order the following: In view of the contentions raised by counsel appearing for the parties, we direct respondent No.4-Deccan Chronicle Ho .....

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at it will remove the machinery by the end of 28.02.2014 and in case, respondent No.4 fails to file any such undertaking affidavit, the Writ Petition shall stand dismissed and consequently, the appeal would be allowed. Counsel for the Writ Petition agreed for the same. Similarly, respondent No.1 herein shall also file an undertaking affidavit to the effect that it will cooperate with respondent No.4. There shall be no order as to costs. Miscellaneous petitions pending, if any, in the Writ Appeal .....

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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 .....

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should not nullify another judicial order passed by the DRT. While admitting W.P.No.5286 of 2014 the Division Bench, by its order dated 03.03.2014, dismissed WPMP No.6563 of 2014. Aggrieved thereby, DCHL carried the matter in appeal to the Supreme Court by way of SLP (Civil)…./2014 in CC No.4636 of 2014. By its order dated 14.03.2014, the Supreme Court dismissed the Special Leave Petition. However, having regard to the controversy involved in the matter, the Supreme Court requested the H .....

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unsel for the review petitioner had sought time to shift the machinery available at the site, which was handed over to the petitioner-bank for the purpose of proceeding further in terms of the SARFAESI Act; the consent given by the Counsel for the review petitioner was to enable DCHL to vacate the premises; as DCHL had consented to vacate the premises on that day, they could not, thereafter, turn around and state that the consent given was with regard to the undertaking; the same could not be ac .....

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the authorised officer of the petitioner bank, by letter dated 15.03.2014, 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 .....

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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 the petitioner-bank from taking coercive steps to recover the amount, and from taking any action against DCHL in running the printing press. The Division bench made it clear that, in case DCHL was already in possession of the secured a .....

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the file of this Court, and granted liberty to DCHL to apply to this Court for consideration of the matter on 07.04.2014. The Supreme Court observed that, if the petitioner-bank desired to remain present before the High Court, it could do so. Consequent on W.P. No.8304 of 2014 being restored to file, the Division bench, by its order in WPMP No.10367 of 2014 in W.P. No.8304 of 2014 dated 29.04.2014, directed DCHL to deposit the demand draft for ₹ 1 crore with the petitioner bank on or befor .....

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petitioner bank would be at liberty to proceed in accordance with law. Aggrieved by the order passed, in WPMP No.10367 of 2014 in WP No.8304 of 2014 dated 29.04.2014, the petitioner-bank filed SLP (Civil) No.12617 of 2014 and the Supreme Court, by its order dated 09.05.2014, dismissed the SLP and requested this Court to hear and decide the Writ Petition on the next date or, in any case, within three months. Thereafter WP No.8304 of 2014 was taken up for final hearing. The Division bench, in its .....

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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 .....

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the notice, the scheduled property would be brought to sale. DCHL filed I.A. No.14460 of 2014 in S.A. No.384 of 2013 questioning the action of the petitioner bank in bringing the subject properties to sale. On a status quo order being passed by the DRT on 14.11.2014, the petitioner-bank carried the matter in appeal to the Debt Recovery Appellate Tribunal ( DRAT for short) at Calcutta. The DRAT, by its order dated 04.03.2015, set aside the order of status quo passed by the DRT, and allowed the ap .....

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failing which the authorised officer would be constrained to remove and deal with the moveable properties. Questioning the sale notice dated 13.04.2015, DCHL filed I.A. No.1916 of 2015 in SA No.384 of 2013. The DRT, by its order dated 01.05.2015, directed the petitioner bank to maintain status quo. Aggrieved thereby the petitioner-bank filed Appeal No.44 of 2015 before the DRAT, Calcutta. By its order dated 26.05.2015, the DRAT, while setting aside the order of status quo passed by the DRT, hel .....

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onnected S.A. No.340 of 2013. The subject property was auctioned on 27.05.2015, and the bid of Dr. D. Satyanaryana Raju, for ₹ 22.10 crores, was accepted. Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that, while the 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 taki .....

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ferent 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 jurisdiction of this Court under Article 226 of the Constitutio .....

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179 ; and Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62 in this regard. Though the petitioners were put in possession of the subject property by the advocate-commissioner, appointed by the Chief Metropolitan Magistrate, Cyberabad by his order in Crl.M.P. No.123 of 2013 dated 26.03.2013, the interim order passed by this Court in W.P. No.14938 of 2013 dated 15.05.2013 barred the petitioner and the police officers either from removing the machinery of DCHL from the subject p .....

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3, merged in the final order passed in W.A. No.679 of 2013 and W.P. No.14938 of 2013 dated 11.11.2013 whereby DCHL was directed to vacate the premises on or before 28.02.2014, and remove all machinery available in the subject premises. An interim order, passed in favour of a party, stands reversed in the event of a final decision going against the party successful at the interim stage. Unless, otherwise ordered by the Court, the successful party at the end would be justified, with all expediency .....

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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 d .....

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rinciple is founded upon justice and good sense, and is a guide for the administration of law. (Essar Oil Ltd.,3). I n Sarah Mathew5 the Supreme Court applied the legal maxim actus curiae neminem gravabit (which means the act of court shall prejudice no man) to hold that the court s inaction in taking cognizance (i.e. court s inaction in applying its mind to the suspected offence) should not be allowed to cause prejudice to a diligent complainant. One of the first and highest duties of all Court .....

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it. In the exercise of such inherent power, Courts have applied the principles of restitution to myriad situations. (South Eastern Coalfields Ltd.2; Rodger v. Comptoir D Escompte de Paris (1871) 3 PC 465 ; A. Arunagiri Nadar v. S.P. Rathinasami (1971) 1 MLJ 220). The word restitution , in its etymological sense, means restoring to a party, on the modification, variation or reversal of a decree or order, what has been lost to him in execution of the decree or order of the court, or in direct con .....

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Restitution sometimes refers to the disgorging of something which has been taken, and at times to compensation for injury done. Often, the result under either meaning of the term would be the same. Unjust impoverishment, as well as unjust enrichment, is a ground for restitution. (South Eastern Coalfields Ltd.2; Black s Law Dictionary, 7th Edn., p. 1315; The Law of Contracts by John D. Calamari & Joseph M. Perillo). The doctrine of restitution is based on the principle that, on the reversal .....

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e 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 .....

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one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. (South Eastern Coalfields Ltd.2). When a decree is reversed, the law imposes an obligation on the party, who received the unjust benefit of an erroneous decree, to restitute the other party for what the other party had lost during the period the erroneous decree was in operation. The C .....

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is duty or jurisdiction is inherent in the general jurisdiction of the Court to act rightly and fairly, according to the circumstances, towards all the parties involved. (South Eastern Coalfields Ltd.2; Jai Berham v Kedar Nath Marwari (1922) 49 IA 359 = AIR 1922 PC 269 ). The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned, if it was not interdicted by the order of the Court, would be restored to, or conferred on, the party by suitabl .....

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tand to gain by swallowing the benefits 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 .....

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lso 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 order when, at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. (South Eastern Coalfields Ltd.2). As the petitioner has suffered injury, as a result of the interim order of this .....

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exclusive control thereof. II. RESTITUTION CANNOT BE ORDERED IN CONTEMPT PROCEEDINGS: Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that, while the petitioner can invoke the contempt jurisdiction of this Court, for violation by DCHL of the order of the Division bench dated 11.11.2013, DCHL can only be punished for contempt; the petitioner would not be entitled to seek any other relief in contempt proceedings; as the petitioner has been made to suffer as a result of the .....

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proceedings can be initiated for violation of orders of Court, the jurisdiction which this Court exercises, under the Contempt of Courts Act, is limited only to an enquiry whether its orders have been wilfully violated and, in such cases, to impose punishment. The injury which the person, in whose favour an order is passed by the Court, suffers at the hands of the other party who has violated the order, cannot be compensated in contempt proceedings. While dealing with an application for contempt .....

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004) 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 .....

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Counsel for the petitioner, would submit that the rule of law requires lawful orders of Court to be implemented; the lawful orders which DCHL has violated are (1) the order of the Chief Metropolitan Magistrate, Cyberabad, in Crl.M.P. No123 dated 26.03.2013, giving the petitioner control and possession over the subject property, and (2) the order of the Division Bench, in W.A.No.679 of 2013 and W.P.No.14938 of 2013 dated 11.11.2013, directing DCHL to vacate the premises and deliver possession to .....

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Rayapati Audemma v. Pothineni Narasimham AIR 1971 AP 53 ; P.R. Murlidharan v. Swami Dharmananda Theertha Padar (2006) 4 SCC 501 ; and R. v. Commissioner of Police of the Metropolis Ex P. Blackburn (No.1) (1968) 1 ALL ER 763 in this regard. On the other hand, Learned Government Pleader for Home would submit that this Court has the power, under Article 226 of the Constitution of India, to issue necessary directions for implementation of its earlier orders; in the absence of any specific direction .....

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annot render assistance, in putting the petitioner in absolute control over the subject property, in the absence of any specific order or direction from this Court. Learned Government Pleader would also rely on Satyanarayana 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 officer .....

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e 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 implementation of the court order. The court has ample jurisdiction to exercise such powers, and pass .....

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to the public to perform those functions which are the raison d'etre of their existence. These legal duties include the duty to enforce the law. In these matters, they are not the servant of anyone, save of the law itself. The responsibility for law enforcement lies on them, and they are answerable to the law and to the law alone. (Rayapati Audemma18; R. v. Commissioner of Police of the Metropolis Ex P. Blackburn (No.1)20; Varadachariar v. Commr. of Police (1969) 2 Mad LJ 1). IV. POWER OF T .....

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ue and proper implementation of the orders passed in the suit, and also order police protection for implementation of such an order. (Meera Chauhan v. Harsh Bishnoi (2007) 12 SCC 201 ). In Rayapati Audemma18, a Division Bench of this Court held that, though an order of injunction under Order 39 CPC is only interim in nature, it still clothes the person, who obtained the order, with certain rights which he is entitled to enforce against the party who is bound by the order; in such a case the aggr .....

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o 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 situatio .....

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ohibiting the opposite party from interfering with possession etc, has been violated, the Civil Court cannot pass a police protection order in the exercise of its powers under Section 94(e) or Section 151 CPC; and the power of the Court to pass a police protection order to prevent the disobedience of the injunction order is different from the power of the Court to deal with actual disobedience. V. POWER OF THE HIGH COURT TO COMMAND POLICE OFFICERS TO AID IN ENFORCEMENT OF ITS ORDERS: Whatever be .....

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Article 226 of the Constitution confers on the High Court wide powers in issuing writs for the enforcement of any of the rights conferred by Part III of the Constitution, and for any other purpose. Under the first part of Article 226 of the Constitution, a writ would be issued only after holding that the aggrieved party has a fundamental right, and that it has been infringed. Under the second part, a writ may be issued only after finding that the aggrieved party has a legal right, and that such .....

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Constitution is a storehouse or a reservoir of justice, equity and good conscience which are meant, within the discretionary power of the Court vested by that Article, to do full and complete justice. (Hon ble Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad4). The High Court, in issuing directions, orders and writs under Article 226, can travel beyond the contents of the writs which are normally issued, provided the broad and fundamental principles that regula .....

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ion 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 .....

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ir duty, the court would not be powerless to intervene, and an order of mandamus would issue. (R. v. Commissioner of Police of the Metropolis Ex P. Blackburn (No.1)20). Mandamus is a very wide remedy which is available against public officers to ensure that they discharge their public duty. Once the party, who applies for mandamus, shows that he has sufficient interest to be protected, and there is no other equally convenient remedy, the remedy of mandamus is available. (R. v. Commissioner of Po .....

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No.1156 of 2014 in W.A. No.679 of 2013 was dismissed by order dated 14.03.2014, the order of the Division bench, in W.A. No.679 of 2013 and W.P. No.14938 of 2013 dated 11.11.2013, has attained finality. A mandamus shall, therefore, be issued to the respondent police officers to provide assistance in having the machinery of DCHL, lying in the premises, removed therefrom, and in putting the petitioner in absolute and exclusive control of the subject property. VI. IS THE HIGH COURT REQUIRED TO HAVE .....

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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 C .....

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s 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 the Learned Senior Counsel would mean that, while the High Court can issue writs, orders or directions and punish, those who disobey its orders, under the Contempt of Courts Act, it cannot enforce its own orders, and must depend upon the Civil Court to have its orders enforced. It would also require us to hold that the power of .....

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res the High Court to have its orders enforced only by the Civil Court. Such a far fetched submission does not merit acceptance. Reliance placed on Rule 23(1) of the Writ Proceeding Rules, to contend that the orders of the High Court must only be enforced by invoking the jurisdiction of the Civil Court, is misplaced. Rule 23(1) provides that a party, to whom costs have been awarded in a Writ Petition or a Writ Appeal, on an application therein, may obtain an order of the Court for transmission f .....

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the power of the High Court to pass orders or issue directions, under Article 226 of the Constitution of India, for the enforcement of its orders. VII. OTHER CONTENTIONS: (A). ALTERNATIVE REMEDY: Sri D.V. Sitarama Murthy, Learned Senior Counsel appearing on behalf of DCHL in W.P.No.10602 of 2015, would submit that, for failure to comply with the order passed by the Chief Metropolitan Magistrate under Section 14(1) of the SARFAESI Act, the petitioner has an effective alternative remedy of approa .....

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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 .....

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der subsection (2) thereof, for the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force as may, in his opinion, be necessary. It is only if the Chief Metropolitan Magistrate had passed an order merely under Section 14(1) of the SARFAESI Act and, if the said order had not been complied with, could his jurisdiction, under Section 14(2) of .....

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Magistrate, in Crl.M.P.No.123 of 2013 dated 26.03.2013, is an order passed both under Section 14(1) and (2) of the SARFAESI Act. As they have already exhausted their remedy under clauses (1) and (2) of Section 14 of the SARFAESI Act, the petitioner cannot again be relegated to invoke the jurisdiction of the Chief Metropolitan Magistrate under Section 14(2) of the SARFAESI Act. As the said order of the Chief Metropolitan Magistrate dated 26.03.2013 was interdicted by the interlocutory order of th .....

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ovisions contained in Section 53 of the Land Acquisition Act, an execution petition under Order 21 CPC was maintainable even for executing a decree passed 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 cou .....

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, 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 POLICE ASSISTANCE, SEEKING ADJUDICATION OF CIVIL DISPUTES? Sri Vedula Venkataramana, Learned Senior Counsel, would submit that no Writ can be sought to t .....

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e in putting the petitioner in possession of the subject property. On the other hand Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the relief sought for in the Writ Petition is not for a direction to put the petitioner in possession, but to direct police officers to enforce the earlier order of the Division Bench of this Court in W.A. No.679 of 2013 and W.P. No.14938 of 2013 dated 11.11.2013. The wide jurisdiction under Article 226 of the Constitution would remain .....

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andamus cannot be sought for protection of property, status or right which remains to be adjudicated, that too when such an exercise of adjudication can only be undertaken in properly instituted proceedings. Under the guise of seeking a writ of mandamus, directing the police authorities to give him protection, no person can make the Court a forum for adjudicating his civil rights. It would be an abuse of process of the Court for any person to approach the High Court, under Article 226 of the Con .....

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nnot 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 cas .....

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f Court, enforced by police officers, being varied or set aside later cannot be ruled out. If police officers are given a free hand, and are permitted to interpret court orders in the guise of implementing them, irreparable loss may ensue to the party which has suffered the order. While police officers are no doubt obligated to assist in implementation of orders of court any bonafide dispute, regarding the scope and purport of the order, would require them to exercise restraint and leave it to t .....

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es adjudication by a competent Civil Court. It is not in dispute that the subject property was mortgaged by DCHL in favour of the petitioner, or that the petitioner invoked Section 13(4) of the SARFAESI Act to take possession of the subject property and to put it to sale. It is only because their attempt to take possession met with resistance from DCHL that the petitioner invoked the jurisdiction of the Chief Metropolitan Magistrate, under Section 14 of the SARFAESI Act, seeking assistance in ta .....

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subject property, to the exclusion of DCHL or the Union, is yet to be determined. It is not even the case of DCHL that disputed questions of fact are involved in the present case which necessitate adjudication in appropriate legal proceedings. By its order in W.A. No.679 of 2013 and W.P. No.14938 of 2013 dated 11.11.2013, the 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 o .....

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ion 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 o .....

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pose of protecting the property as it was, the representative of the petitioner-bank was permitted to stay in the property without any interruption by the Union or anyone else including the police. The petitioner-bank and their representatives were also directed not to cause any obstruction to the activity of printing and publishing of the newspapers. As a result of the said order dated 17.05.2013, while the petitioner-bank continued to remain in possession of the subject property, DCHL has also .....

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lusion of DCHL and its Union. Police officers are duty bound to render assistance in implementation of the orders of Court, and can be directed to discharge their legal duty of ensuring compliance with court orders. A writ of mandamus being issued, in the present case, does not necessitate adjudication of any civil disputes. (C). ARE THE TWIN PRAYERS IN W.P. NO.17935 OF 2015 SELFCONTRADICTORY? Sri Vedula Venkataramana, Learned Senior Counsel appearing on behalf of DCHL in W.P.No.17935 of 2015, w .....

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nd 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 sough .....

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sistance offered by DCHL when the petitioner attempted to take absolute control in terms of the order of the Division bench dated 11.11.2013; and, while grant of the relief sought for in the first limb of the prayer may render the second limb superfluous, the second limb does not contradict the first. The prayer in W.P.No.10602 of 2015 is for this Court to issue a Writ of Mandamus directing respondent Nos.1 to 3 to take necessary steps to put the petitioner in absolute control of the subject pro .....

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ution of India. The second limb of the prayer is for a consequential direction to respondent Nos.1 to 6 to take necessary steps to put the petitioner in absolute control over the subject property in furtherance of the action initiated by them under the SARFAESI Act followed by the violation of the undertaking made by DCHL in W.A. No.679 of 2013. Both W.P.Nos.10602 and 17935 of 2015 have been filed questioning the action of police officers in not providing police aid for implementation of the rul .....

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sistance, being declared illegal, a mandamus would ordinarily have been issued directing the respondent police officers to consider the representation of the petitioner-bank afresh, and in accordance with law. However, the stand of the respondent-police officers, in their counter-affidavit filed before this Court, is that they would not be able to render police assistance in the absence of any specific direction from this Court. No useful purpose would, therefore, be served in directing them to .....

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USION: 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 vio .....

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. 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 in Appeal No.44 of 2015 dated 26.05.2015, 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 ₹ 6 .....

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