TMI Blog2017 (3) TMI 1846X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent by either filing a Suit or successive writ petitions. The sanguine confidence of the Respondent is also reflected by his failure to appear in the present proceedings despite valid service of notice. The bar under Order 23 Rule 1 would apply only to a fresh Suit and not proceedings under the Act. In Sarva Shramik Sanghatana v. State of Maharashtra [ 2007 (11) TMI 590 - SUPREME COURT ] , the application Under Section 25-O of the Industrial Disputes Act, 1947 for closure of undertaking was withdrawn as attempts were made for settlement of the matter. Settlement not having been possible, the Management filed a fresh application. It was opposed as barred under Order 23 of the Code of Civil Procedure since the earlier application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of notice. 3. Learned Senior Counsel Shri J.S. Attri, on behalf of the Appellant, submits that the High Court has erred by inferring abandonment of the claim by withdrawal of the Suit. The withdrawal was made to initiate fresh proceedings under the Act, as it provided for a more speedy and effective remedy, under a special law. The absence of any liberty in the withdrawal order is not relevant. There was no bar under the Act to the proceedings. The remedy Under Section 3(1)(d)(iv) of the Act was independent and without prejudice to any other mode of recovery under any law for the time being in force, and which will include a Suit. The High Court had wrongly applied the principle of 'public policy' to restrain recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 1,94,283/- followed by a warrant of arrest. 7. The Respondent thwarted the Certificate proceedings by filing a Suit before the Senior Sub Judge, Shimla contending that the fresh proceedings were barred due to withdrawal of the Suit without any liberty, and that the claim was time barred. An interim-order was obtained, but ultimately the Suit was dismissed for non-prosecution on 21.5.2001. 8. Another loan of ₹ 30,000/- was availed by the Respondent on 15.12.1988 for a trunk industry and a hypothecation-deed executed in respect of property bearing Khata/Khatuni No. 102/347, Khasra No. 1014. The last installment of the loan was payable on 10.1.1996. The Respondent remitted ₹ 4,000/- in May 1991 and ₹ 1,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy from 1996 till 2002. 12. The factum of loan is not in dispute. No explanation was furnished why the installments were not repaid and the loan closed. A pittance was repaid. The loan was disbursed from public funds of the tax payers' money. The Respondent was a trustee for the loan amount. It could not become a windfall for him. All attempts by the Appellant for recovery were successfully thwarted by the Respondent by either filing a Suit or successive writ petitions. The sanguine confidence of the Respondent is also reflected by his failure to appear in the present proceedings despite valid service of notice. 13. The question whether there has been an abandonment of the claim by withdrawal of the Suit is a mixed question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpts were made for settlement of the matter. Settlement not having been possible, the Management filed a fresh application. It was opposed as barred under Order 23 of the Code of Civil Procedure since the earlier application was withdrawn unconditionally with no liberty granted, relying on Sarguja Transport Service (supra). The argument was repelled holding that the proceedings under the Industrial Disputes Act were not a Suit and that withdrawal was bonafide to explore amicable settlement. It was not a withdrawal made malafide or for Bench hunting holding as follows: 22. No doubt, Order 23 Rule 1(4) Code of Civil Procedure states that where the Plaintiff withdraws a suit without permission of the court, he is precluded from instituting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he executive statutorily empowered. In C.C.E. v. Ramdev Tobacco Co. (1991)(2) SCC 119, the distinction was noticed as follows: 6....... There can be no doubt that 'suit' or 'prosecution' are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one...... 18. That the proceedings in a Suit could not be equated with a certificate proceeding was further noticed in ESI Corporation v. C.C. Santhakumar (2007) 1 SCC 584, observing: 25....... Therefore, it cannot be said that a proceeding for recovery as arrears of land revenue by issuing a certificate could be equated to either a suit, appeal or application in the court...... 19. The phrase ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
