Court. The Judges sitting at different Benches at the same Seat or on
different Benches at the Principal Seat and its Benches cannot be permitted
to pass the orders contrary to the orders passed by other Benches. At least
in a lis between the same parties, there has to be consistency in the orders
passed by different Benches. If this is not done and every Judge is
permitted to pass the orders contrary to the orders passed by the other
Bench, it would create chaos. This would lead to a situation of crisscross
and it would hit at the basic doctrine of 'Rule of Law'.
12. The Hon'ble Apex Court in the judgment in the case of
Official Liquidator...Versus...Dayanand and others, reported in (2008)
10 Supreme Court Cases 1, in paragraph no.78, has held as under :
“78. There have been several instances of
different Benches of the High Courts not following the
judgments/orders of coordinate and even larger Benches. In
some cases, the High Courts have gone to the extent of
ignoring the law laid down by this Court without any
tangible reason. Likewise, there have been instances in
which smaller Benches of this Court have either ignored or
bypassed the ratio of the judgments of the larger Benches
including the Constitution Benches. These cases are
illustrative of nonadherence to the rule of judicial discipline
which is sine qua non for sustaining the system. In
Mahadeolal Kanodia v. Administrator General of W.B. this
Court observed : (AIR p.941, para 19)
“19. …...If one thing is more necessary in
law than any other thing, it is the quality of
certainty. That quality would totally disappear if
Judges of coordinate jurisdiction in a High Court
start overruling one another's decisions. If one
Division Bench of a High Court is unable to
distinguish a previous decision of another
Division Bench, and holding the view that the
earlier decision is wrong, itself gives effect to that
view the result would be utter confusion. The
position would be equally bad where a Judge
sitting singly in the High Court is of opinion that
the previous decision of another Single Judge on
a question of law is wrong and gives effect to that
view instead of referring the matter to a larger
Bench. In such a case lawyers would not know
how to advise their clients and all courts
subordinate to the High Court would find
themselves in an embarrassing position of having
to choose between dissentient judgments of their
own High Court.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.867/2013
M/s. Shewalkar Developers Ltd V Rupee Cooperative Bank Ltd.,
CORAM : B.R. GAVAI AND
INDIRA K. JAIN, JJ.
DATE : 18.06.2015
Citation;2016 (1) MHLJ382,2017(1) ALLMR605
2. The learned Counsel for the petitioner seeks liberty to
withdraw the petition. However, taking into consideration the seriousness
of the matter and in order to give due respect to the orders passed by the
Coordinate Bench of this Court on earlier occasions, we refuse the
permission to withdraw the petition and proceed to decide the same.
3. The petition arises out of very peculiar facts. The petitioner is
a borrower of the respondent nos.1 and 2 – Bank. Since the petitioner was
liable to pay dues of the Bank, it appears that the respondent nos.1 and 2 –
Bank had initiated proceedings for recovery. A dispute came to be filed by
the present petitioner being a Dispute No.263/2012. In the said dispute, an
application for temporary injunction also came to be filed below Exh.5.
4. The learned Judge of the Cooperative court initially granted
ex parte order on 12.9.2012. It appears that the relief which was sought by
the petitioner was to the effect that the Assistant Registrar Cooperative
Societies should not grant any recovery certificate under the provisions of
Section 101 of the Maharashtra Cooperative Societies Act, 1960
(hereinafter referred to as “the said Act”). The learned Judge of the
Cooperative Court vide order dated 8.10.2012 passed the following
order :
“(i) Application below Exh.5 is allowed.
(ii) Exparte adinterim relief in terms of Prayer
Clause 1 granted by this court on 12/09/2012 is hereby
confirmed till the disposal of dispute.
(iii) No order as to costs.
(iv) Order pronounced in open court.”
5. It further appears that subsequently the present petition was
filed, thereby raising the challenge to the notice issued by the respondent
no.1, dated 3.1.2013, under the provisions of Section 13 (2) of
Securitisation and Reconstruction of Financial Assets and Enforcement
Security Interest Act, 2002 (hereinafter referred to as “the SARFAESI Act”).
The present petition came to be filed challenging the said notice on the
ground that the respondent – Bank had no jurisdiction to issue the said
notice. The petition came up for hearing before the Division Bench of this
Court (A.P. Lavande and A.B. Chaudhari, JJ.) on 28.2.2013. It appears
from the order passed by the Division Bench that upon a query by the
learned Judges as to whether the petitioner was at least inclined to pay the
principal amount, the learned Counsel for the petitioner expressed his
inability to do so. One of the grounds raised by the petitioner at the time of
hearing was that the petitioner himself had to recover an amount of rupees
two crores and odd from the respondent no.1 – Bank. It was also urged
before the Court that since there is already an order of injunction passed
by the learned Cooperative Court, there is no question of depositing any
amount in the present petition. The learned Judges in the order observed
that an amount of Rs.4,41,32,643.43 was shown as a principal amount in
the notice impugned in the present petition. The learned Judges of this
Court after referring to the reason given by the learned Cooperative Court
observed in paragraph nos.7 and 8 thus :
“7. Prima facie, we are shocked to
see the way in which the learned Judge of the
Cooperative Court has granted blanket injunction
from recovery of huge amount of Rs.Five Crores and odd
at one stroke even without asking for deposit of a single
paisa. The reasons cited above are preposterous and
contrary to the settled legal position in respect of recovery
of money dues due to Banks. The impugned orders are
clearly in contravention of the Apex Court judgment in
the case of Shiv Kumar Chadha ..vs..
Municipal Corporation of Delhi and others; (1993) 3
Supreme Court cases, 161. To our mind, the above
orders made by the Judge, Cooperative Court, Nagpur
are based on a cock and bull story and made for
extraneous reasons and, therefore, we call upon
the petitioner to explain why the said order
below Exh.5 dated 08.10.2012 in Dispute
No.263/2012 should not be quashed and set
aside in exercise of power under Article 227 of
the Constitution of India, since retention of such an
order is likely to cause dent to the image of the institution.
Respondent no.1 Bank is also called upon to
explain why the said order has not been put to
challenge till date before the appropriate court.
8. Since we are satisfied that the said order
dated 08.10.2012 passed by the Judge, Cooperative
Court has been secured by the petitioner and the Judge
Cooperative Court has readily granted the same for
extraneous reasons, we grant ad interim stay of the said
order dated 08.10.2012 in Dispute No.263/2012.”
6. It could thus be seen that the learned Judges of this Court
have categorically found that the order which was sought and the relief
granted by the learned Cooperative Court was on extraneous reasons and
therefore, granted ad interim stay to the order dated 8.10.2012 passed in
Dispute No.263/2012. This Court also called upon the petitioner to show
cause as to why the order passed by the learned Cooperative Court dated
8.10.2012 should not be quashed and set aside while exercising the
extraordinary powers vested in this Court. It further appears that the said
order of the Division Bench came to be challenged before the Hon'ble Apex
Court by way of a Special Leave Petition. It is informed at the bar that
initially Their Lordship of the Apex Court had granted stay to the recovery.
It further appears that on 26.3.2015 the learned Counsel appearing on
behalf of the petitioner sought liberty to withdraw the Special Leave
Petition for filing suitable petition in the High Court. The Special Leave
Petition was, therefore, permitted to be withdrawn. The status quo which
was operating was directed to be maintained for a period of two weeks
from the date of the said order.
7. It further appears that in the interregnum though there was no
necessity on behalf of the respondent no.1 – Bank to file an appeal against
the order of the Cooperative Court inasmuch as this Court was already
seized of the matter since it had called upon the petitioner to show cause as
to why the order of the Cooperative Court should not be quashed and set
aside, the respondent – Bank for the reasons best known to it preferred an
appeal before the learned Cooperative Appellate Court, Nagpur. It further
appears that since the Member of the Cooperative Appellate Court, Nagpur
was not available, the charge at the relevant time was with the Cooperative
Appellate Court, Pune. However, since the Cooperative Appellate Court,
Pune was also not available, the appeal was heard at the Principal Seat of
the Cooperative Appellate Court at Mumbai. The learned President of the
Cooperative Appellate Court, Mumbai stayed the order passed by the
learned Cooperative Court, Nagpur. It appears that being aggrieved thereby,
the petitioner filed the petition before the learned Single Judge of this Court
at the Principal Seat. The learned Single Judge vide order in Writ Petition
No.9309/2013, dated 24.2.2015, allowed the writ petition and set aside the
order of the Cooperative Appellate Court, Mumbai and restored the order of
the Cooperative Court, Nagpur.
8. It appears that the matter came up again before the another
Division Bench of this Court (A.B. Chaudhari and P.N. Deshmukh, JJ.) on
13.4.2015. The learned Judges of the Division Bench were prima facie of the
view that the Principal Seat at Mumbai did not have jurisdiction to entertain
the petition inasmuch as the jurisdiction to entertain an appeal challenging
the order passed by the Cooperative Court at Nagpur would be with the
Member of the Cooperative Appellate Court at Nagpur and the jurisdiction
exercised by the learned President of the Cooperative Appellate Court,
Mumbai was only as the incharge Court of the Nagpur Bench. The Division
Bench, therefore, framed the following question for its consideration.
“Whether the judgment and order dated
24.2.2015 in W.P. No.9309/2013 passed by the learned
Single Judge, at the Principal Seat at Bombay High Court
suffers from the vice of territorial jurisdiction and can be
ignored in the present proceedings i.e. W.P. No.867/2013
and whether the directions to ignore the same can also be
made to the subordinate Cooperative Appellate Court
whose order was set aside therein ?”
9. We do not propose to go into the question of the territorial
jurisdiction as has been raised by the learned Judges of the Division Bench
inasmuch as we are of the considered view that the present petition needs
to be dismissed and a finding needs to be recorded that the order passed
by the learned Single Judge of this Court at Mumbai in Writ Petition
No.9309/2013 dated 24.2.2015 needs to be ignored on a more serious
view of the matter. The Division Bench of this Court vide order dated
28.2.2013 in categorical terms granted stay to the order passed by the
Cooperative Court and also called upon the petitioner to show cause as to
why the order of the Cooperative Court should not be quashed and set
aside by invoking the extraordinary jurisdiction of this Court under Article
227 of the Constitution of India. The Judgment of the learned Single Judge
of this Court at the Principal Seat would reveal that the learned Single
Judge has referred to the order passed by the Division Bench of this Court
on 28.2.2013 as is evident from paragraph no.4 of the said order.
10. Perusal of the Judgment passed by the learned Single Judge
reveals that though in paragraph no.4 of the order the learned Single
Judge specifically makes a reference to the order passed by the Division
Bench of this Court, in subsequent part of the Judgment the learned Single
Judge has not considered the order passed by the Division Bench of this
Court.
11. Time and again we have observed that the Court acts as one
Court. The Judges sitting at different Benches at the same Seat or on
different Benches at the Principal Seat and its Benches cannot be permitted
to pass the orders contrary to the orders passed by other Benches. At least
in a lis between the same parties, there has to be consistency in the orders
passed by different Benches. If this is not done and every Judge is
permitted to pass the orders contrary to the orders passed by the other
Bench, it would create chaos. This would lead to a situation of crisscross
and it would hit at the basic doctrine of 'Rule of Law'.
12. The Hon'ble Apex Court in the judgment in the case of
Official Liquidator...Versus...Dayanand and others, reported in (2008)
10 Supreme Court Cases 1, in paragraph no.78, has held as under :
“78. There have been several instances of
different Benches of the High Courts not following the
judgments/orders of coordinate and even larger Benches. In
some cases, the High Courts have gone to the extent of
ignoring the law laid down by this Court without any
tangible reason. Likewise, there have been instances in
which smaller Benches of this Court have either ignored or
bypassed the ratio of the judgments of the larger Benches
including the Constitution Benches. These cases are
illustrative of nonadherence to the rule of judicial discipline
which is sine qua non for sustaining the system. In
Mahadeolal Kanodia v. Administrator General of W.B. this
Court observed : (AIR p.941, para 19)
“19. …...If one thing is more necessary in
law than any other thing, it is the quality of
certainty. That quality would totally disappear if
Judges of coordinate jurisdiction in a High Court
start overruling one another's decisions. If one
Division Bench of a High Court is unable to
distinguish a previous decision of another
Division Bench, and holding the view that the
earlier decision is wrong, itself gives effect to that
view the result would be utter confusion. The
position would be equally bad where a Judge
sitting singly in the High Court is of opinion that
the previous decision of another Single Judge on
a question of law is wrong and gives effect to that
view instead of referring the matter to a larger
Bench. In such a case lawyers would not know
how to advise their clients and all courts
subordinate to the High Court would find
themselves in an embarrassing position of having
to choose between dissentient judgments of their
own High Court.”
13. It could thus be seen that the Hon'ble Apex Court in clear
terms has held that the thing which is more necessary in law than any
other thing is the quality of certainty. It is further held that the said quality
would totally disappear if Judges of coordinate jurisdiction in a High Court
start overruling one another's decisions.
14. After considering its earlier judgments, the Hon'ble Apex
Court, in paragraph no.90, has observed as under :
“90. We are distressed to note that
despite several pronouncements on the subject, there is
substantial increase in the number of cases involving
violation of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts refuse to
follow and accept the verdict and law laid down by
coordinate and even larger Benches by citing minor
difference in the facts as the ground for doing so.
Therefore, it has become necessary to reiterate that
disrespect to the constitutional ethos and breach of
discipline have grave impact on the credibility of judicial
institution and encourages chance litigation. It must be
remembered that predictability and certainty is an
important hallmark of judicial jurisprudence developed
in this country in the last six decades and increase in the
frequency of conflicting judgments of the superior
judiciary will do incalculable harm to the system
inasmuch as the courts at the grass roots will not be able
to decide as to which of the judgments lay down the
correct law and which one should be followed.”
15. The Hon'ble Apex Court has in clear terms reiterated that the
disrespect to the constitutional ethos and breach of discipline have grave
impact on the credibility of judicial institution. It has been held that the
predictability and certainty is an important hallmark of judicial
jurisprudence developed in this country in the last six decades and increase
in the frequency of conflicting judgments of the superior judiciary will do
incalculable harm to the system.
16. No doubt that wide discretion is vested with the Court under
Articles 226 and 227 of the Constitution of India. But when a Court and
that too a Division Bench of this Court at Nagpur Bench is seized of the
matter and had passed an order thereby specifically granting stay to the
order of the Cooperative Court and had called upon the petitioner to show
cause as to why the order passed by the Cooperative Court should not be
quashed and set aside, the learned Single Judge of this Court ought to
have stayed his hands away and directed the petitioner to approach this
Court for seeking appropriate relief in the present petition. We do not wish
to go into the question as to whether the petitioner had rightly filed the
petition at Principal Seat, inasmuch as we find that since the order passed
by the learned Single Judge has the effect of nullifying the order passed by
the Division Bench of the same Court, the same would not be valid in law.
17. The more seriousness of the matter is that the petitioner
being aggrieved by the order passed by the Division Bench of this Court
dated 28.2.2013 had already approached the Hon'ble Supreme Court. On
the date on which the order was passed by the learned Single Judge, the
Hon'ble Apex Court was already seized of the matter. When the Highest
Court in the Country is seized of the matter, all Courts subordinate thereto
including the High Courts, be a Division Bench or a Single Judge ought to
have stayed their hands away and waited till the outcome of the decision
of the Special Leave Petition that was pending before the Hon'ble Apex
Court.
18. We do not propose to go into the legality or otherwise of the
order passed by the learned Single Judge of this Court dated 24.2.2015
and the question as to whether the law has been correctly considered by
the learned Single Judge of this Court or not or as to whether the
judgment of the Division Bench of this Court delivered in the case of Top
Ten, A partnership Firm and Anr. vs. State of Maharashtra and Ors.
reported in 2012 (1) Mh.L.J. 347 has been correctly applied by the learned
Single Judge or not. We find the same not to be necessary, inasmuch as we
find that since the order passed by the learned Single Judge is in conflict
with the earlier order passed by the Division Bench of this Court, it is null
and void in law. In that view of the matter, we answer the part of the
question, which was framed by the learned Judges of the Division Bench as
to whether the order passed by the learned Single Judge dated 24.2.2015
needs to be ignored, in the affirmative, however, on the different grounds.
19. Now, we refer back to the order dated 28.2.2013 passed by
the Division Bench of this Court. The Division Bench, vide the said order,
has called upon the petitioner to show cause as to why the order of the
Cooperative Court dated 8.10.2012 should not be quashed and set aside.
The learned Judges of the Division Bench have given elaborate reasoning
while issuing the showcausenotice to the petitioner. The learned Judges
have found that only considerations given by the learned Cooperative
Court were that the respondent no.1 – Bank had prematurely encashed the
bank guarantee and handed over the same to IDBI Bank; that the disputant
raised objection about charging of excess interest; that the disputant is
entitled to set off and that the disputant has shown his willingness and
readiness to settle the matter amicably. However, the learned Judges have
specifically observed that though the petitioner was asked as to whether he
was willing to deposit at least principal amount, the petitioner had
expressed his unwillingness and had also gone to the extent of saying that
since there was an order of the Cooperative Court, there was no question
of depositing any amount. The learned Judges of the Division Bench in the
said order have categorically observed that the order of injunction granted
by the Cooperative Court was in contravention of the law laid down by the
Hon'ble Apex Court in the case of Shiv Kumar
Chadha...Versus...Municipal Corporation of Delhi and others, reported
in (1993) 3 Supreme Court Cases 161.
20. We are of the considered view that the blanket order which
had the effect of preventing the Bank from exercising the statutory right
available to it under Section 101 of the said Act was totally untenable in
law. Not only that, but if the learned Cooperative Court desired to grant
some relief in favour of the disputant, the least that was expected was to
pass some order which at least partly protects the interest of the Bank. The
effect of the order passed by the learned Cooperative Court was preventing
the Bank to exercise the statutory right available to it under Section 101 of
the said Act, for recovery of the huge amount which was more than rupees
five crores. In that view of the matter, we find that this is a fit case wherein
this Court should exercise its extraordinary jurisdiction under Articles 226
and 227 of the Constitution of India to set aside the order of the inferior
Court, which is not passed in accordance with law.
21. In that view of the matter, we make the notice issued to the
petitioner vide order dated 28.2.2013 absolute and quash and set aside the
order passed by the Cooperative Court dated 8.10.2012.
22. The foregoing paragraphs explicitly depict the conduct of the
petitioner. The petitioner is a person, who during the pendency of present
petition and when there was an order passed by the Division Bench of this
Court, calling upon him to show cause as to why the order of the
Cooperative Court dated 8.10.2012 should not be quashed and set aside
and had also stayed that order had an audacity to approach the learned
Single Judge of this Court at the Principal Seat and obtain an order which
has the effect of nullifying the order passed by the Division Bench of this
Court. Not only this, but the petitioner being aggrieved by the order passed
by the Division Bench dated 28.2.2013 had preferred Special Leave
Petition, wherein the Hon'ble Apex Court had granted an order of status
quo. During the pendency of the Special Leave Petition, the petitioner
approached the learned Single Judge of this Court and after getting
favourable order from the learned Single Judge on 24.2.2015, sought
liberty of the Hon'ble Supreme Court on 26th March, 2015 to withdraw the
Special Leave Petition so as to approach the High Court by filing a suitable
petition. It appears from the order of Hon'ble Supreme Court that the facts
regarding filing of the petition before the learned Single Judge and the
order passed by the learned Single Judge, dated 24.2.2015 were not
brought to the notice of Their Lordships of the Supreme Court. The chain
of events explicitly depicts the conduct of the petitioner.
23. In that a view of the matter, we find that the petitioner is
disentitled to any relief only on the ground of equity. The writ petition
stands dismissed on this short ground.
Rule is discharged. No order as to costs.
The copy of the above order is directed to be forwarded to
the Registrar General of this Court so as to conduct an enquiry about the
learned Judge of the Cooperative Court, who has passed an order dated
8.10.2012.
JUDGE JUDGE
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