show cause as to why a sum of Rs.22,53,110/- (Rupees Twenty Two Lakhs Fifty Three Thousand and One Hundred and Ten only) shall not be recovered for wrongly/irregularly availing/utilizing the Cenvat credit along with interest and penalty.= As for the availment of extended period of limitation under Section 11A of the Act, the Supreme Court in M/s. Continental Foundation Jt. Venture (2 supra) held that the word suppression used in Section 11-A of the Act has to be construed strictly and mere omission to give correct information does not constitute suppression of facts unless it was deliberate with a view to avoid payment of duty. A perusal of the show cause notice shows that there is no allegation of either wilful suppression or fraud or collusion against the respondent. The Commissioner (Appeals) in his order dt.23.09.2014 stated that the appellants therein are filing monthly ER1 returns by which keeping the department well informed about the transaction of the business with duty particulars along with copies of invoices of Cenvat details as well as its availment and that the Department cannot feign ignorance and allege suppression of facts to raise demand of duty by extending period of limitation. On a careful consideration of the reasons assigned by the Commissioner (Appeals), which were upheld by the Tribunal, we are of the opinion that they are sound, convincing and cogent and therefore the Additional Commissioner has erroneously issued the show cause notice during the extended period of limitation which is not available on the facts of the case.

THE HONOURABLE SRI JUSTICE C.V. NAGARJUNA REDDY AND THE HONOURABLE SRI JUSTICE CHALLA KODANDA RAM                           
Central Excise Appeal No.135 of 2017

30-10-2017

The Commissioner of Central Excise and Service Tax Tirupati  Appellant

Shree Radha Krishna Alloys Pvt. Ltd. Respondent 

Counsel for the appellant: Sri Suresh Kumar Routhu,
                            Standing Counsel for the Customs,
                            Central Excise and Service Tax

Counsel for the respondent :

<GIST                                       :

>HEAD NOTE                             :

?CITATIONS:  1. 2016 (332) ELT 356 (Tril. Del.)
             2. 2007 (216) ELT 177 (SC)

THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY         
AND 
THE HONBLE SRI JUSTICE CHALLA KODANDA RAM           

C.E.A. No.135 of 2017

DATED:30-10-2017 

THE COURT MADE THE FOLLOWING:       

JUDGMENT: (per the Honble Sri Justice C.V. Nagarjuna Reddy) 

        This central excise appeal arises out of final order
dt.31.10.2016 in Appeal No.E/23733/2014, on the file of the
Customs, Excise and Service Tax Appellate Tribunal, Regional
Bench, Hyderabad (for short, the Tribunal).
2.      The respondent has availed Cenvat credit in respect of
MS Plates, HR sheets etc., used for fabrication of capital goods,
namely, reheating, furnace, conveyor No.1, transfer table and
parts of crane gantry, cooling bed etc., installed in the factory.
The Additional Commissioner of the Central Excise, Customs 
and Service Tax, Tirupati, issued a show cause notice
dt.7.5.2013 calling upon the respondent to show cause as to
why a sum of Rs.22,53,110/- (Rupees Twenty Two Lakhs Fifty  
Three Thousand and One Hundred and Ten only) shall not be 
recovered for wrongly/irregularly availing/utilizing the Cenvat
credit along with interest and penalty.  The respondent has
submitted its explanation.  By order dt.25.03.2014, the
Additional Commissioner has disallowed the Cenvat credit of
the aforementioned amount and also imposed interest, and
penalty of a sum equivalent to the disallowed Cenvat credit.
Feeling aggrieved by the said order, the respondent filed an
appeal before the Commissioner of Customs, Central Excise & 
Service Tax (Appeals), Guntur. By order dt.23.09.2014 the
Commissioner (Appeals) has allowed the appeal.  The appeal
filed by the appellant before the Tribunal having been
dismissed, the present appeal is filed by the Department.
3.      A perusal of the order of the Commissioner (Appeals)
shows that the order of the Additional Commissioner was
reversed on two grounds, namely, that the subject items in
fabrication of identifiable capital goods are used while setting
up of factory and not for any construction activity.  While
arriving at the said conclusion, the Commissioner (Appeals)
relied upon the report of the Range Officer.  He has rendered a
categorical finding that the respondent has used the subject
items in the fabrication of capital goods and therefore those
goods are eligible for credit.  Another reason for setting aside
the order of the Additional Commissioner assigned by the
Commissioner (Appeals) was that the former has exercised his
jurisdiction during the extended period of limitation under
Section 11A of the Central Excise Act, 1944 (for short, the
Act) and that mere suppression of facts without fraud or
collusion or wilful misstatement should not make a case fall
under the said provision.  The Tribunal, on reconsideration of
the case endorsed the view taken by the Commissioner
(Appeals).  In support of its conclusion, the Tribunal has relied
upon the judgment in Ultra Tech Cement Ltd. v. CCE, Raipur ,
which in turn has referred to the judgment of the Supreme
Court in Continental Foundation Jt. Venture v. Commissioner of Central
Excise, Chandigarh-1 .
4.      While exercising jurisdiction under Section 35G of the
Act, this Court would not re-appreciate the facts in issue.  Both
the lower fora have concurrently found that the items were used
in fabrication of capital goods which are eligible for Cenvat
Credit.  Therefore, finding on this aspect does not give rise to
any substantial question of law.
5.      As for the availment of extended period of limitation
under Section 11A of the Act, the Supreme Court in M/s.
Continental Foundation Jt. Venture (2 supra) held that the word
suppression used in Section 11-A of the Act has to be
construed strictly and mere omission to give correct
information does not constitute suppression of facts unless it
was deliberate with a view to avoid payment of duty.  A perusal
of the show cause notice shows that there is no allegation of
either wilful suppression or fraud or collusion against the
respondent.    The Commissioner (Appeals) in his order
dt.23.09.2014 stated that the appellants therein are filing
monthly ER1 returns by which keeping the department well 
informed about the transaction of the business with duty
particulars along with copies of invoices of Cenvat details as
well as its availment and that the Department cannot feign
ignorance and allege suppression of facts to raise demand of
duty by extending period of limitation.  On a careful
consideration of the reasons assigned by the Commissioner 
(Appeals), which were upheld by the Tribunal, we are of the
opinion that they are sound, convincing and cogent and
therefore the Additional Commissioner has erroneously issued
the show cause notice during the extended period of limitation
which is not available on the facts of the case.
        For the aforementioned reasons, we do not find any merit
in this appeal and the same is accordingly dismissed.

__________________________   
C.V. NAGARJUNA REDDY, J     
__________________________   
CHALLA KODANDA RAM, J     
30-10-2017

notice under Section 126 of Act, 1964 = filing of any suit is barred unless and until notice thereunder is given to the Registrar in respect of any act touching the constitution, management or the business of the Society. Admittedly, in the present case, no such notice is given to the Bank nor to the Registrar of Co-operative Societies.

HONBLE SRI JUSTICE SURESH KUMAR KAIT AND HONBLE SRI JUSTICE N. BALAYOGI               

CCCA.No.320 of 2003 

21-09-2017

Aryan Co-operative Urban Bank Ltd., Nallakunta, Rep. by its Liquidator & another...Appellants
       
A.P.Womens Co-operative Finance Corporation Ltd.,Ameerpet, Hyderabad, rep. by its Managing Director & others..Respondents   

For Appellants:Sri Kishore Rai, Advocate.

For Respondent No.1 :   Sri J.S.Raju, Standing Counsel for A.P.Womens Co-operative Finance Corporation Ltd.

<Gist:

>Head Note:

? CITATIONS: 

1. 2000 (1) ALD 499
2. AIR 1981 AP 180
3. 2004 (1) ALD 878

HONBLE SRI JUSTICE SURESH KUMAR KAIT       
AND 
HONBLE SRI JUSTICE N. BALAYOGI     

CITY CIVIL COURT APPEAL No.320 of 2003   

JUDGMENT : (Per Honble Sri Justice Suresh Kumar Kait) 

        Vide the present appeal, the appellants have assailed the
order dated 11th February 2003, passed by the VII-Additional
Chief Judge, City Civil Court, Hyderabad, in O.S.No.246 of
1998, whereby, the aforesaid suit has been decreed for
Rs.1,95,30,891.55 ps., with interest @ 13.5% p.a. from the date
of the suit till the date of realization.  The 1st respondent/plaintiff-
Corporation was directed to give credit to the tune of
Rs.1,65,76,205/- made by the 1st appellant-Bank during the
pendency of the suit on the respective dates of payments.

2.      The 1st respondent-Corporation filed aforementioned suit
by stating that the A.P. Women Co-operative Finance
Corporation Ltd., Ameerpet, Hyderabad (hereinafter shall be
referred to as Corporation) was established in the year 1975 on
the eve of the International Women Year.  The twin objectives of
International Women Year were; promotion of equality between
men and women and the active involvement of women in 
National development.  The Corporation had undertaken the
massive programme of employment oriented Agro industries,
Cottage and small scale industries by providing technical
assistance, financial assistance etc.  The Corporation, in order to
raise funds, advanced loans, encouraged thrifts and invested
surplus funds by depositing in the 1st appellant-Bank (hereinafter
shall be referred to as the Bank), as under :
1.     Rs.25,00,000/- (Rupees Twenty Five Lakhs)
invested on 5-7-1993 for 90 days @ 14% and
renewed for 90 days upto 27-3-1995 and further
one year upto     27-3-1996 at 13% and further
renewed upto date at the same rate.
2.      Rs.24,00,000/- (Rupees Twenty Four Lakhs) 
invested for one year at 13% upto 31-3-1995 and
renewed for a further period of one year upto
31-3-1996 at 13% and further renewed upto date
at the same rate.
3.      Rs.14,00,000/- (Rupees Fourteen Lakhs only)
invested for one year upto 31-3-1995 and
renewed for a further period of one year upto 31-
3-1996 at 13% and further renewed upto date at
the same rate.
4.      Rs.12,00,000/- (Rupees Twelve Lakhs only)
invested for one year upto 31-3-1995 and
renewed for a further period of one year upto 31-
3-1996 at 13% and further renewed upto date at
the same rate.

3.      Before aforementioned deposits, the Administrative Officer
of the Bank addressed a letter dated 14.07.1994 to the
Corporation to mobilise deposits in their Bank and promised that
they will pay more interest than the other Nationalised Banks i.e.
@ 10.5% p.a. on the deposited amount.  Basing on the above
noted letter, the Corporation was convicted and issued Cheques
bearing Nos.740890 and 740891, both dated 15.07.1994, for
Rs.50,00,000/- each, in the Bank, with an undertaking to deposit
the above said two amounts for a period of one year with interest
@ 10.5% p.a.  It was agreed between the Bank and the
Corporation to pay interest quarterly.  Accordingly, the
Corporation requested the Bank to send interest on earlier FDRs
as under :
F.D.R. & Date           F.D.R. Amount     Qly Int.payable
                                        (Rs.)              For the period
1. 6892 dt.31-3-1994    25,00,000/-             31-3-94 to 28-6-94
2. 6896 dt.31-3-1994    14,00,000/-                     -do-
3. 6895 dt.31-3-1994    12,00,000/-                     -do-
4. 6893 dt.31-3-1994     5,00,000/-                     -do-
5. 6894 dt.31-3-1994    24,00,000/-                     -do-
===============================================               
However, the 3rd respondent/3rd defendant i.e. the Chief Executive
Officer of the Bank, instead of repaying the interest, by letter
dated 05.04.1995, requested to renew FDR Nos.6892 to 6896 for
a further period of one year.  By letter dated 26.07.1995, the 3rd
respondent requested to renew FDR Nos.3311 and 3312 of 
Rs.50,00,000/- each, carrying interest @ 10.5% p.a.  The 3rd
respondent assured to pay interest quarterly @ 13.5% p.a. if the
FDRs are renewed and requested to send two FDRs fell due on 
15.07.1995.  Accordingly, the Corporation, by a letter dated
28.07.1995, agreed for the renewal for a further period of 180
days from 16.07.1995 and instructed to pay interest on the above
deposits with Bankers Cheque in the name of the Managing
Director of the Corporation and stated that the agreed interest
shall be @ 13.5% p.a. from the date of renewal.  The Bank
acknowledged the receipt of the above said FDRs.  The Bank had
issued two cheques vide Cheque No.291936 for an amount of 
Rs.2,67,123.25 ps., and another Cheque No.291937 for an
amount of Rs.3,02,054.80 ps.  The said cheques were
dishonoured due to       non-availability of funds.  However, the
Bank, by letter dated 14.09.1995, again sent the Bankers Cheque
for the said amounts, vide cheque No.975577.

4.      Further case of the Corporation is that by letter dated
26.09.1995, made it clear that if quarterly interest is not paid
within two days, the entire deposited amount would be
withdrawn from the Bank.  In the very same letter, the
Corporation made it clear that the Bank is due to pay a sum of
Rs.10,37,150.75 ps., towards interest on the total amount i.e.
Rs.1,80,00,000/-.  The Chief Executive Officer of the Bank, by
letter dated 12.10.1995, paid Rs.5,50,630.05 by cheque
No.759587, dated 12.10.1995, drawn on Andhra Bank, adjusted 
towards interest upto 30.09.1995.  As the Bank was not paying
the interest quarterly as promised even after regular persuasion
and letters and telephonic calls and due to dishonouring of
cheques, the Corporation had decided to renew the deposits only
for 100 days instead of 180 days.  The Bank had acknowledged
in the same letter dated 19.10.1995 that two FDRs worth
Rs.50,00,000/- each were received on 25.10.1995.  The
Corporation, by letter dated 14.12.1995, made it further clear
that the deposit of 100 Lakhs only will be renewed only for a
period of 100 days instead of 180 days.  The Corporation also
requested the 3rd respondent/the Chief Executive Officer of the
Bank to make payments along with accrued interest by means of 
Bankers cheque.  Inspite of the same, the 3rd respondent, by letter
dated 15.12.1995, requested to continue the deposits till
31.12.1995.

5.      The further case of the Corporation is that the President of
the Bank had addressed a letter dated 03.01.1996, expressing
regrets over the non-materialisation of FDRs on 31.12.1995 due
to financial crisis.  However, he assured that necessary
arrangements for payment of FDR Nos.3311 and 3312 along 
with interest due as on that date will be made.  By letter dated
29.01.1996, the Corporation requested the 3rd respondent to pay
the amount along with interest upto 31.12.1995.  However, the
3rd respondent by letter dated 02.03.1996, again requested to
renew the FDRs for a further period of one year.  The
Corporation, again by letter dated 14.03.1996, expressed its
regrets over non-payment of Rs.180 Lakhs along with interest.
The 3rd respondent, by letter dated 17.10.1996, made it clear that
they want to repay all the deposits particularly institutional
authorities and requested for extension of deposits and assured
for payment upto March 1997.  In letter dated 13.06.1996, the
Corporation enclosed the Five FDRs worth Rs.80,00,000/- and
same was acknowledged by letter dated 13.06.1996.  The 3rd
respondent, by letter dated 08.11.1996, along with the statement
of account of the Bank dated 11.02.1997, sent a letter and
statement of account and further requested for extension of time
of 10 months to pay atleast the interest.

6.      The Bank, by letter dated 16.07.1997, enclosed a cheque
bearing No.1537475, dated 16.07.1997 for Rs.5,00,000/- drawn
on APCOB, Vidyanagar Branch towards repayment of FDR   
No.13971 and assured further that he shall make upto date
payment by the end of October, 1997.  The Bank, in the same
letter, mentioned that it shall pay every month certain amounts
towards principal and interest adjustments of above mentioned
FDRs.  However, even after letter dated 16.07.1997, the
Corporation did not receive any amount, for which, a legal notice
was issued on 22.09.1997 and the same was received and duly 
acknowledged on 23.09.1997.  Thereafter, the Corporation issued
rectified legal notice dated 28.09.1997 and received
acknowledgement on 03.10.1997 from respondent No.3 vide 
letter dated 11.02.1997 along with a detailed statement of
account of payment of interest on FDRs.  Since the Corporation
did not receive the amount, it filed a suit with a prayer to pass a
decree in its favour and against the Bank for a sum of
Rs.1,95,30,891.55 ps., and grant interest as per the contract rate
from the date of suit till the date of realisation and costs.

7.      The case of the Bank as per the written statement is that
they approached the Corporation in usual course of business for
deposits, out of surplus funds available with the Corporation.
Accordingly, the Corporation invested an amount of
Rs.25,00,000/- on 05.07.1993 for a period of 90 days and the
rate of interest @ 14% p.a. and the FDRs were renewed from
time to time and further renewed for one year from 27.03.1995 to
27.03.1996 with interest @ 13% p.a.  The same was renewed 
upto date and the interest payable on above FDRs till 26.03.1996
was already paid.  As on 26.03.1998, the amount due was
Rs.31.50 Lakhs consisting of Rs.25 Lakhs principal amount and
Rs.6.50 Lakhs interest payable from 27.03.1996 to 26.03.1998.
The Bank was agreed to pay the above dues within reasonable
time.  Originally, the deposit was made for a period of one year
for a sum of Rs.24 Lakhs vide FDR No.6894, dated 31.03.1994
and the same was renewed for one more year, and further
renewed till 31.03.1996 vide FDR No.13969.  The interest
payable on the above FDR upto 31.03.1996 amounting to 
Rs.6,24,854.80 was fully paid by the Bank.  Apart from the
interest, a sum of Rs.4,00,000/- was paid towards partial
payment of principal in February, 1998.  Hence, the intention of
defaulting on the part of the Bank does not arise.  The amount
payable on the above FDRs till 31.03.1998 would be
Rs.26,17,731.50 ps., consisting of Rs.20,00,000/- towards
principal and Rs.6,17,731.50 ps., towards interest.

8.      Further case of the appellants is that another deposit was
made by the Corporation vide FDR No.6896, dated 31.03.1994 
for a sum of Rs.14 Lakhs for a period of one year and the same
was further renewed for one more year till 31.03.1996.  The
appellant had paid full principal amount of Rs.14 Lakhs together
with interest of Rs.6,40,704/- payable till 31.03.1996.  The
deposit of Rs.12 Lakhs was made by the Corporation on
31.03.1994 vide FDR No.6895, for one year.  The principal
amount of Rs.12 Lakhs together with interest of Rs.4,55,178.10
ps., payable till 31.03.1995 was already paid by the Bank.
However, the cheques were dishonoured only on technical
grounds and not for want of funds.  The Bank was operated by
the Committee Members as per the old bye-laws.  The said bye-
laws were amended with effect from 05.12.1994 and
subsequently, the bank operations were entrusted to the
Managing Committee.  Accordingly, the Bank submitted the 
signatures of the officers of the concerned Bank for allowing
operation of accounts.  Meanwhile, the Bank had issued cheques
in good faith, however, the concerned Bank i.e. Andhra Bank of
Vidyanagar Branch dishonoured the cheques and sought the 
approval of Registrar for attestation of the new signatures.  The
attestation process was delayed for want of clarification from the
head office i.e. Registrar of Co-operative Societies.  These are the
circumstances under which the cheques issued in favour of the
Corporation were bounced and the said fact was communicated 
to the Corporation.

9.      Further case of the Bank is that inspite of their intention
for repaying the amount, the Corporation, in haste, filed the suit
instead of approaching the Arbitrator for settlement of dispute
under Section 61 of Act, 1964.  However, in the interest of
business relations, the Bank considered to pay interest only on
the outstanding FDRs for further period from the last date with
the date of clearance of the FDRs and that the Bank was
prepared to pay the FDRs along with interest as stated below :
        F.D.R. 3311    Rs.50 Lakhs
         F.D.R. 3311    Rs.50 Lakhs
      F.D.R. 3311       Rs.25 Lakhs
      F.D.R. 3311       Rs.20 Lakhs      (As Rs.4 Lakhs was
already
                                                  Paid against Rs.24 Lakhs)
                                -----------------
                                Rs.145 Lakhs
                                -----------------"
It is the further case of the Bank that if the Corporation is
agreeable to convert the above FDRs into lower denominations,
renewal of FDRs with lower denominations is proposed as
follows:
        March, 1998            Rs.10 Lakhs.
         April, 1998                    Rs.10 Lakhs.
         May, 1998                      Rs.10 Lakhs.
         June, 1998                     Rs.10 Lakhs.
         July, 1998                     Rs.20 Lakhs.
         August, 1998           Rs.20 Lakhs.
         September, 1998                Rs.20 Lakhs.
         October, 1998          Rs.20 Lakhs.
         November, 1998         Rs.20 Lakhs.       
         December, 1998         Balance amount.       

10.     Further case of appellants is that the Bank had paid
Rs.44,99,901/- towards interest alone against various FDRs
apart from the payment of Rs.35 Lakhs towards principal
amount.  The Bank denied in toto the alleged amount of
Rs.1,95,30,891.50 ps., as demanded by the Corporation, as the
suit amount was not covered under any specific contract between
the Bank and the Corporation.  The Bank was agreeable, in the
absence of any specific contract, to pay the interest on matured
deposits as per the directives of RBI only.  Therefore, the interest
during the tenure of suit or after the expiry of respective due
dates of FDRs, is denied.

11.     Basing on the plaint allegations and after considering the
written statement of the Bank, the trial Court initially framed the
following issues :
1.     Whether the plaintiff is entitled for recovery of the
suit amount
        2.      To what relief

12.     After filing written statement by defendant No.4 i.e. Special
Category Deputy Registrar/Liquidator, Aryan Co-operative
Urban Bank Ltd., Nallakunta, Hyderabad, who was impleaded as 
defendant No.4 as per order of the trial Court dated 08.12.2002
passed in I.A.No.295 of 2002, additional issues were framed on
11.12.2002 as under :
1.     Whether the suit is barred U/Sec.121(2) of A.P.
Co-operative Act,. 1964
2.      Whether the suit is maintainable for non-
compliance of Sec.126 of the A.P. Co-operative
Societies Act, 1964
3.      Whether the suit is maintainable in view of the
Sec.61(1)(d) of A.P. Co-operative Act, 1964

13.     It is pertinent to mention here that the main dispute
between the Bank and the Corporation is with regard to the
payment of interest due on matured Fixed Deposits made by the
Corporation with the Bank.  So far as the transactions i.e. the
deposits and the rate of interest are concerned, the same are not
in dispute.  The main contention of the Bank is that the suit was
not maintainable and a reference under Section 61(1)(d) of Act,
1964 should have been made; that no notice had been issued 
under Section 126 of Act, 1964; and in view of the winding up of
the Bank, the Civil Courts jurisdiction is barred under Section
121(2) of Act, 1964.

14.     However, the learned trial Court opined that the liability of
the Bank arises on account of fixed deposits made by the
Corporation under Term Deposit Receipts, which carry interest
specified thereon and as such the liability of the Bank arises
under a monetary transaction as a Banker and the said liability
had also been duly acknowledged under Exs.B-3 to B-19, B-21 
and B-22.  The said liability is only on Banker and the same is
not touching with the management or the business of the Bank so
as to attract the provisions under Section 61(1)(d) of Act, 1964.
This matter with regard to the issue was negated by the trial
Court and the revision preferred vide C.R.P.No.860 of 2002 was
dismissed by the High Court confirming the orders of the trial
Court.  As such, the issue had become redundant and since it
does not touch the business or management, the suit filed by the
Corporation was maintainable.

15.     With regard to issuance of notice under Section 126 of Act,
1964, the learned Court below opined that the same does not
arise at all since before filing of the suit, the Corporation
addressed various letters calling upon the Bank for payment of
outstanding amounts, to which, the Bank replied, requesting for
renewal, and thus, there being no specific form of notice
prescribed under Section 126 of Act, 1964 and the nature of
liability being one of a trustee as a Banker to repay the amounts
due as on the date, the said provision is not applicable and on the
other hand, duly complied with.

16.     Insofar as bar of jurisdiction of civil Court under Section
121(2) of Act, 1964 is concerned, it is held by the trial Court that
only in respect of the Societies which are contemplating winding
up or being liquidated, and in the present suit, the said defence is
not available, since admittedly, by the date of filing of the suit, no
such proceedings were either contemplated or pending, but it was
only during pendency of suit, the liquidation proceedings were
started i.e. nearly three years after filing of the suit, and as such,
Section 121 (2) of Act, 1964 has no application.

17.     Admittedly, the Bank repaid certain amounts towards the
discharge of their liability and the same are reflected in the
written arguments of the Corporation.  Insofar as the balance
amount is concerned, it remains unpaid and in view of admission
on the part of the Bank offering a particular rate of interest, they
are bound to repay the same with agreed and undertaken interest.

18.     We have heard learned counsel for the appellants and the
Corporation and perused the material on record.

19.     As mentioned above, defendant No.4 i.e. the Special
Category Deputy Registrar/Liquidator of the Bank was
appointed in pursuance of the order of the Joint Registrar/DCO,
dated 05.09.2002, whereunder, the Joint Registrar passed orders
to liquidate the Bank.  The copy of the order was filed before the
trial Court.  In view of the same, the Corporation, without
seeking leave of the Registrar of     Co-operative Societies, is not
entitled to sue the Bank, in view of Section 121(2) of Act, 1964,
which reads as under :
While a society is being wound up, no suit or other
legal proceeding relating to the business of such society
shall be proceeded with, or instituted against, the
liquidator as such or against the society or any member
thereof on any matter touching the affairs of the society
except by leave of the Registrar and subject to such
terms and conditions as he may impose :
       
Provided that where the order of winding up is
cancelled, the provisions of this sub-section shall cease
to apply in relation to the society and any member
thereof, but shall continue to apply to the person who
acted as liquidator.

20.     As per the said provision, without seeking leave of the
Registrar of Co-operative Societies, the Corporation was not
entitled to sue the Bank.  However, before going further, it is
pertinent to mention here that the business of the Bank, as stated
in the bye-laws, more particularly bye-law No.5(ii), is as under :
to accept the deposits or money from the public,
repayable on demand or otherwise, and withdrawable
by cheque, draft order as per Bye-laws No.41 which
reads as under :
(i)    Deposits may be received at any time
within the limits determined under Co-
operative Societies Act and Rules on
such rates of interest and subject to
such rules regulations as may be fixed
by the Board of Directors and also
subject to the directives issued by the
Reserve Bank of India in this behalf
from time to time.
(ii)    Deposits may be received on current,
savings, fixed, recurring, cumulative
and under any other special
scheme(s).

21.     It is not in dispute that during the course of business, the
Bank had approached the Corporation to invest surplus funds
and the same is admitted by the Corporation in the plaint.  As
such, the trial Court has no jurisdiction to try the suit under the
provisions of Section 61(1)(d) of Act, 1964.  Accordingly, the
claim of the Corporation had to be sent to the Deposit Insurance
Credit Guarantee Corporation of the Reserve Bank of India for
settlement of claims upto Rs.1,00,000/- and any other claim made
to the Liquidator, the Liquidator has to settle such claim on pro-
rata basis including that of the Corporation, if any, in view of the
liquidation of Bank in respect of the alleged dues of the
Corporation.  The Corporation in its correspondence, has
specifically stated that it had agreed under Ex.A-14 to refer the
matter to the Registrar of Co-operative Societies for taking action
as per Act, 1964 and also under Ex.A-16, the Corporation
intended to take steps for Arbitration as per the provisions of
Act, 1964.

22.     It is pertinent to mention here that vide communication
dated 14th March 1996, the Corporation issued a letter to the
Chief Executive Officer of the Bank, whereby stated that if the
Bank fails to repay the proceeds of Rs.100 Lakhs along with
interest, they will proceed to recover the same by filing an
arbitration case and approach the Court of law for taking
criminal action against the Bank.  In view of the categorical
admission of the Corporation, whereunder, the Corporation has
categorically referred to approaching the Registrar of Co-
operative Societies for settlement of dues by filing Arbitration
case, but in fact, has approached the Court below by filing the
suit.  The same goes to show that the Corporation and the Bank,
both being Co-operative Societies, the provisions of Act, 1964
applies, which provides for settlement of disputes before the
Arbitrator under the provisions of Section 61(1)(d) of Act, 1964,
which reads as under :
        Disputes which may be referred to the Registrar :-
(i)     Notwithstanding anything contained in any law for
the time being in force, if any dispute touching the
constitution, management or the business of a
society, other than a dispute regarding disciplinary
action taken by the society or its committee against a
paid employee of the society arises
 (a)..
(b)..
(c). 
(d) between the society and any other society, such
dispute shall be referred to the Registrar for decision..

23.     In addition to above, Section 126 of Act, 1964 reads as
under :
126. Notice necessary in suit :- No suit shall be instituted
against a society or any of its officers in respect of any act
touching the constitution, management or the business of the
society until the expiration of sixty days next after notice in
writing has been delivered to the Registrar, or left at his
office stating the cause of action, the name, description and
place of residence of the plaintiff and the relief which he
claims and the plaint shall contain a statement that such
notice has been so delivered or left.

In view of above provision, notice is to be issued by the plaintiff
before filing the suit and no suit shall be instituted against a
Society without a notice in writing has been delivered to the
Registrar.

24.     It is pertinent to mention here that PW-1/D.Anil Kumar,
Junior Accounts Officer of the Corporation, deposed in the
cross-examination that he did not know whether the Corporation
had issued any Statutory notice under Section 126 of Act, 1964
before filing the suit.  More over, he had no idea as the Bank and
the Corporation being   Co-operative Societies, whether an
Arbitration claim has to be made under Section 61(1)(d) of Act,
1964.  He admitted that under Ex.A-16, the Corporation intended
to take action for Arbitration as per provisions of Act, 1964,
however, he had no idea whether the Corporation had taken any
action under Act, 1964, under Exs.A-14 and A-16.  The said
witness admitted that they have received Rs.5,00,000/- vide
Cheque No.77519, dated 24.03.2001 from the Bank under the 
letter, which is Ex.B-1.  He further admitted that the total amount
paid by the Bank after filing the suit is Rs.2,29,00,000/- and odd.
He further admitted that the amount paid by the Bank to the tune
of Rs.2,29,00,000/- and odd includes the principal amount of
Rs.163 Lakhs and the balance is towards interest.  The said
witness also admitted that as per bye-law No.5(ii), the Bank is to
accept deposits and pay back on demand.  Under bye-law No.41, 
the Bank is entitled to receive deposits as per Act, 1964.  He also
admitted that before filing the application to implead the
Liquidator, the permission of Registrar of Co-operative Societies
was not obtained.  He further admitted that before filing the suit
and impleading the Liquidator, no prior notice was issued.

25.     In view of above facts and statutory provisions, we are of
the opinion that the Court below failed to see that the provisions
of Section 126 of Act, 1964, which stipulates that no suit shall be
instituted against a Society or any of its officers in respect of any
act touching the constitution, management or the business of the
Society, until the expiry of 60 days next after notice in writing
has been delivered to the Registrar.  PW-1 in his deposition, has
made admission that no notice as contemplated under Act, 1964
has been issued before filing of suit and before impleading the
Liquidator/appellant No.2 herein.  The said fact has been
overlooked by the Court below.  However, the Court below has
erred in holding that the correspondence made by the
Corporation can be treated as notice under Section 126 of Act,
1964.  In addition to above, the Court below failed to see that
filing of suit without seeking leave of the Registrar of Co-
operative Societies is barred under Section 121(2) of Act, 1964.
The trial Court has ignored the fact that PW-1 made relevant
admissions that before filing the application to implead the
Liquidator, permission of Registrar of Co-operative Societies was
not obtained.  Accordingly, the Court below erred in holding that
sanction under Section 121(2) of Act, 1964 is not applicable to
the suit, as the liquidation proceedings had been commenced only
after filing of the suit.  We are of the opinion that Section 121(2)
of Act, 1964 is applicable even in the pending suits.

26.     The trial Court further failed to see the relevant admission
of PW-1 in cross-examination dated 17.12.2002 that the
principal business of the Bank is to accept deposits and to pay
back on demand.  Thus, the Court below has erred in holding that
payment of Fixed Deposits or interest are only monetary
transactions but not the business of the Bank.  The Court below
has also failed to see that the main activity of the Bank is
Banking business.  Hence, in our opinion, Section 61(1)(d) of
Act, 1964 is squarely applicable.  It is pertinent to mention that
orders in C.R.P.No.860 of 2002 were passed by this Court
confirming the orders of this Court in I.A.No.42 of 2002, refusing
to frame the issues for want of pleadings in the written statement.
However, the said case is not applicable for the facts and
circumstances of this case.

27.     In the case of V.J.Dandekar v. Meera Co-operative
Housing Society Limited, Hyderabad , a learned Single Judge of
this Court held that notice contemplated under Section 126 of
Act, 1964 has to be strictly construed and it has to be complied
with accordingly.  The words touching the business of a society
in Section 126 of Act, 1964 must be given their full import
bearing in mind the object of the Legislation.  The disputes are
not to be restricted to matters arising from and out of the
business of the society but are also extended to matters which are
in some way concerned or related to the business of the society.

28.     In the case in hand, as admitted by PW-1, though the very
business of the Bank was to accept deposits and pay back to the
depositors along with interest, the procedure contemplated under
Section 126 of Act, 1964 has not been complied with before
instituting the suit.

29.     In case of Karimnagar District Co-operative Central
Bank Ltd. V. Mogili Bakka Veeraiah and another , a learned
Single Judge of this Court held that the suit filed by the plaintiff
against the Karimnagar District Co-operative Central Bank
Limited without giving the requisite notice under Section 126 of
Act, 1964 is not properly instituted.  Accordingly, the said Court
set aside the order of the trial Court.

30.     In the case of Jas Raj Ganeshmal v. A.P.Dairy
Development Co-operative Federation Limited , a learned
Single Judge of this Court held that filing of any suit is barred
unless and until notice thereunder is given to the Registrar in
respect of any act touching the constitution, management or the
business of the Society.  Admittedly, in the present case, no such
notice is given to the Bank nor to the Registrar of Co-operative
Societies.

31.     In view of above discussion and legal position, we hereby
set aside the decree and judgment dated 11.02.2003, passed by
the      VII-Additional Chief Judge, City Civil Court, Hyderabad
in O.S.No.246 of 1998.  Consequently, we allow the present
appeal by giving liberty to the Corporation to take steps as per
law, for recovery of amount, if any.  No order as to costs.
        Pending miscellaneous applications, if any, shall stand
closed.

________________________   
SURESH KUMAR KAIT, J   
________________ 
N. BALAYOGI, J 
21st September 2017

the documents ante litem motam should be scrutinized with greater care because they may be prepared with the litigation in mind. ; Mere failure to reply to a notice does not amount to an admission.

HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU       

CCCA No.169 of 1999 

09-11-2017

M/s. Plywood Syndicate,  a partnership firm and 2 others Appellants/Defendants

M/s. National Ply Wood Industries Limited, Hyderabad. Respondent/Plaintiff

Counsel for the appellants: V.S.R. Anjaneyulu

Counsel for the Respondents: None appeared.

<Gist:

>Head Note:

? Cases referred:

  2010 (6) ALD 484
2 AIR 1973 AP 149 
3 AIR 1983 SC 684 
4 (1982) 2 SCC 202
5 MANU/TN/3504/2010 
6 AIR 1989 SC 1269 
7 2004 (1) ALD 269 (DB)
8 AIR 1966 SC 275 


HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU       

CCCA No.169 of 1999 

JUDGMENT: 

        CCCA No.169 of 1999 is filed against the judgment and
decree of the IV Senior Civil Judge, Hyderabad, dated
29.10.1998 passed in O.S.No.297 of 1989.
      2.        The suit was filed by Pioneer Wood Products Pvt.
Ltd., initially and later as per the orders dated 21.02.1997 in
I.A.No.878 of 1996 in O.S.No.297 of 1989, the plaintiffs name
was amended to National Plywood Industries Ltd. 
The defendants are Plywood Syndicate, a partnership firm and
its two partners.  The suit was filed for recovery of money due
towards the goods supplied by the plaintiff to the first
defendant with interest and costs.  The defendants filed the
written statement denying the suit claim and stating that if the
accounts are actually taken and credit was given certain claims
of the defendants, the suit will have to be dismissed and the
plaintiff will have to pay the amount back.  After the
amendment to the plaint in the cause title and additional
written statement were also filed.
      3.        The lower Court framed issues and also framed an
issue of territorial jurisdiction.  Ex.A.1 to A.107 were marked
for plaintiff.  Exs.B.1 to B.21 were marked for defendants.  One
witness each was examined by plaintiff and defendants. After
trial, the suit was decreed with costs.  Aggrieved by the same,
the defendants preferred the present appeal.
        4.      As it is a first appeal, the parties are hereinafter
referred to as plaintiff and defendants only, for the sake of
convenience.
        5.      Heard Sri V.S.R. Anjaneyulu, learned counsel for
the appellants. None appeared for the respondent/plaintiff.
       
      6.        The first and foremost point that was urged by the
learned counsel for the appellants/defendants is that the Court
at Hyderabad did not have the territorial jurisdiction to
entertain the suit. As per the defendants, the entire transaction
took place in Vijayawada and merely because the plaintiffs
head office is at Hyderabad, the suit is not maintainable.  The
defendants also pleaded that the plaintiff had a depot in
Vijayawada in which orders were placed by the defendants and
material was also supplied from the said depot to the
defendants, who admittedly are carrying with business in
Vijaywada.  Hence, learned counsel argued that the entire
cause of action arose at Vijayawada alone and that no part of
the cause of action arose at Hyderabad or within the
jurisdiction of Senior Civil Judge, City Civil Courts,
Hyderabad.  The lower Court also framed an issue on this
point.  The learned counsel cited the judgment reported in
Tirumala Tirupathi Devasthanam, Tirupati v. Shree
Distributors, Hyderabad   in support of his submission.
        7.      However, a reading of the entire evidence reveals
that the plaintiff stated that the defendants used to purchase
the plywood from the office at Hyderabad and that the
payments were made sometimes by cash and sometimes by     
cheques and demand drafts.  The defendants in their written
statement in page-2 at para-3 state that correspondence with
Hyderabad office and making of payments to Hyderabad office
for the sake of convenience will not enable the plaintiff to file
the suit at Hyderabad.  Thus, the defendants admitted the
payments were made at Hyderabad.  The witness examined on   
behalf of the defendants as DW.1 is the partner of the first
defendant firm.  On 31.07.1998 during the course of his cross-
examination, he clearly admits that he used to make payments
to the plaintiff at Hyderabad office and also correspondence
was with Hyderabad office. In addition, the correspondence
clearly shows that the issues relating to the suit transaction
alone were discussed in the exhibits filed and most of the
letters are addressed to the plaintiffs office at Sultan Bazar,
Hyderabad.
      8.        It is, therefore, clear that issues relating to this suit;
the transactions covered therein and issues pertaining to the
cause of action for this Court including the payments were
made at Hyderabad. Therefore, a part of the course of action
definitely arose at Hyderabad. Consequently, the Court at
Hyderabad had the jurisdiction to decide this matter and this
issue is decided in favour of the plaintiff and against the
defendants.  The lower Court did not commit any error on the
issue of the territorial jurisdiction.  Therefore, the finding in
para-15 of the judgment on additional issue framed on
13.02.1996 is confirmed. The case law cited in Shree
Distributors, Hyderabad (1 stated supra) is not applicable to the
facts of the present case for the reason that in that case there
there was a written contract and the goods were supplied to
Tirupati.  The appellant in that case is Tirumala Tirupati
Devasthanam.  The learned single Judge rightly held that the
Court at Hyderabad does not have jurisdiction and that the
parties by a contract cannot confer jurisdiction on a Court.
Hence, the said judgment is not applicable to the facts of the
present case.
        9.      The learned counsel for the appellant/defendants
also argued that the lower Court failed to frame an additional
issue on the point whether the new plaintiff substituted in
place of the original plaintiff could pursue the suit.
He argued that there was no proof of the amalgamation.
National plywood Industries Ltd with its registered office at
Makkum Road, Tinsukia, District Tinsukia, Assam was 
substituted as a plaintiff in place of Pioneer Wood Products
Ltd.  The plaintiff was substituted by virtue of the orders
passed in I.A.No.878 of 1996 in O.S.No.297 of 1989 dated
21.02.1997.  Apparently, there was no revision preferred
against the said order and the same has become final.
The learned counsel also argued that no evidence was placed
with regard to the amalgamation of the original plaintiff with the
substituted plaintiff.  This submission does not appear to be
correct since Ex.A.61 was filed by the plaintiff and it is an order
of the Honble Assam High Court in Company Petition No.3 of
2013 dated 18.12.1992 under which Pioneer Wood Products   
Ltd was amalgamated with a National Plywood Industries Ltd.
There was no cross-examination whatsoever on this exhibit nor
on the contents of this exhibit.  Therefore, this Court does not
find any substance in the submission of the learned counsel
that there is no proof that the current plaintiff is entitled to
prosecute the suit.
        10.     On the merits of the claim, the learned counsel for
the appellants/defendants submitted in the written statement
that they have raised a plea that as the goods are supplied on
credit and that as there are debits and credits in the accounts,
the plaintiff will not be entitled to suit claim and certain
adjustments have to be made under the five heads which are
described in the written statement. As per the learned counsel
for the defendants if these five heads of claim are considered,
nothing will remain to be paid to the plaintiff in the suit.
        11.     The learned counsel argued that the finding of the
lower Court that they did not prove this aspect was not correct
and stated that they have filed correspondence to this effect.
However, a perusal of the correspondence filed does not
support the monetary claim raised by the defendants.
In the course of the business, many letters are exchanged but
when it comes to a proof in a court, the defendant will not have
proved their case with reasonable certainty at least.
The five claims of the defendants are discussed in paras17 to
20 of the impugned judgment and as rightly noticed by the
lower Court, the monetary aspect of the claim is not clearly
borne out in the record and more so the correspondence.
      12.       In the written statement, among various heads
pointed out, they have claimed a sum of Rs.1,58,125/- as
differential credit amount for two trucks of unwanted goods
sent through Kaleswari Lorry Service. The learned counsel for
the appellants/defendants argued that Exs.B.15 to B.17 read
with Exs.B.20 & 21 would prove this claim.  Ex.B.15 is a letter
stating that two trucks of plywood with two delivery challans
are sent back.  The two delivery challans are Exs.B.16 and
B.17.  Ex.B.20 is an acknowledgement of receipt by the
plaintiffs office at Hyderabad. These documents do not
establish the monetary claim of Rs.1,58,123/-.
      13.       Similarly, there is another claim of Rs.94,741/-,
and as per the appellant, credit is not given for wrongful supply
of pionex brand instead of pioneer brand.
The learned counsel for the appellants/defendants pointed out
that Ex.B.4 is the document in support of the same.  Ex.B.4 is
a letter dated 26.04.1984 regarding defective material.  It does
not establish the value of the material particularly the value
that is claimed in the written statement. The same is the case
with regard to the other three issues raised in the written
statement and the learned counsel pointed out the
correspondence relating to each of the sub-heads, which
according to him have a bearing on this issue. He also pointed
out that they have filed Exs.B.21 & 22 to prove the 5 claims
they have.  Exs.B.21 and B.22 were marked subject to the
objection in the lower Court.  Ex.B.21 is a statement. It
particularly appears to have been prepared after the suit is
filed and it bears the suit number and the cause title of the
suit. There is no supporting material filed for the entries in
Ex.B.21.  It is clear as per settled law that documents prepared
subsequent to the filing of the suit are to be scrutinized with
greater care when compared to documents which are prior to
the suit.  The case law reported in Chakicherla
Audilakshmamma v. Atmakaru Ramarao and others , State   
of Bihar v. Radha Krishna Singh , Umesh Chandra v. State of
Rajasthan  and P. Kumar v. the State of Tamilnadu  is
relevant, wherein the Honble Supreme Court clearly held that
the documents ante litem motam should be scrutinized with 
greater care because they may be prepared with the litigation
in mind.  Therefore, Ex.B.21 cannot be treated as true and
correct, more so when there is no corroboration for the entries
thereon.

      14.       As far as the account copy marked as Ex.B.22 is
concerned. it is a computerized printout which is merely signed
by DW.1. No supporting data like books/ledgers/ invoices etc.
to support the entries in Ex.B.22 are produced.  As per the
decision reported in Smt. Chandrakantaben and another v.
Vadilal Bapalal Modi and others  the Honble Supreme Court
of India held that entries in account books should be
supported by documents like ledgers etc. and somebody 
should take care to explain the entries also.  In this case, a
computerized sheet is filed and marked as Ex.B.22.  Therefore,
this Court is of the opinion that neither Ex.B.21 nor Ex.B.22
are adequately proved as required by law and the lower Court
is right in not giving due weight with these two documents.
Even DW.1 admits ExsB.1 & B.2 do not reflect in our ledger
(last line of cross-examination)
        15.     In contra distinction to this, the plaintiff filed his
document and also filed exhibits like bills, ledger and
statement of accounts etc. It is also a fact that the defendants
issued cheques towards part payment of the debt due to the
plaintiff which were also dishonoured.  The same is borne out
by the oral and documentary evidence.  In addition to the
above, DW.1 also admits in his cross-examination on
03.08.1998 in page-8 as follows:
it is true as per our ledger, we have to pay a sum of
Rs.3,51,383.10 to plaintiff towards supply of material.
       
        16.     The admission of the defendants is thus clear. It is
also noticed that the plaintiff issued a legal notice demanding
the said sum from the defendants and the defendants did not
reply to the same and the defendants did not also issue a
notice demanding the sums mentioned in their defence
statement.  They did not make a counter claim or claim set off
etc.  Hence, the lower Court rightly disbelieved the version set
up by the defendants
      17.       However, the learned counsel is right in pointing
out that the lower Court erred in holding that the failure to
reply to the notice is an admission. This finding of the lower
Court in para-21 is not correct. Mere failure to reply to a notice
does not amount to an admission. The learned counsel for the
appellants/defendants drew the attention of this Court to a
Division Bench of this Court in Manepalli Udaya Bhaskara
Rao v. Kamboyina Dharmaraju . The Division Bench  
considered the judgment of the Honble Supreme Court in
Union of India v. Watkins Mayor and Company  and came to a  
conclusion that the failure to reply to the notices is not an
admission. 
        18.     A perusal of the judgment of the lower Court
reveals that it considered all the aspects in detail and came to a
conclusion that the suit claim is proved.  There is no evidence
to contradict the said claim nor are any grounds spelt out to
come to a different conclusion.
        19.     For all the above reasons, the appeal is dismissed
and the judgment and decree of the lower Court dated
29.10.1998 in O.S.No.297 of 1989 are confirmed.  In the
circumstances of the case, there shall be no order as to costs.
Miscellaneous Petitions, if any, pending in this appeal shall
stand closed.
________________________   
D.V.S.S. SOMAYAJULU, J   
Date: 09.11.2017

when this Court laid the proposition of law in 1996 An.W.R. 282 and 1969 An.W.R. 222 to the effect that Assignment would constitute a part of the cause of action and the Court within whose jurisdiction the assignment took place would have jurisdiction to entertain the suit, the appellate Court should have held that the trial Court has got territorial jurisdiction to try the suit. = Section 70 of the Negotiable Instruments Act is not a specific provision which can over-ride the provisions contained in Section 20 CPC. Section 70 of N.I. Act does not lay down the place where the suit has to be filed. More over, it does not deal with the case of assignment which has been held to constitute a part of the cause of action. It will thus be clear that where the right of the plaintiff depends upon the assignment of a promissory note in his favour, the assignment would constitute part of the cause of action and the Court within whose jurisdiction the assignment took place, would have jurisdiction to entertain the suit on the promissory note. Accordingly, we hold that the Court at Tenali has jurisdiction to try the suit in question.

HONBLE SRI JUSTICE SURESH KUMAR KAIT AND HONBLE SRI JUSTICE N. BALAYOGI               

C.R.P.No.3700 of 2006

05-09-2017

Malisetti Subba Rao. ..Petitioner
       
Kanneti Siva Parvathi Devi..Respondent 

For Petitioner :Sri N. Sreerama Murthy, Advocate.

For Respondent: None appeared. 

<Gist:

>Head Note:


?  CITATIONS:

1.AIR 2011 SC 421 
2.1966 An.W.R. 282 
3.1969 An.W.R. 222 
4. 2004(5) ALD 57

HONBLE SRI JUSTICE SURESH KUMAR KAIT       
&
HONBLE SRI JUSTICE N. BALAYOGI     

C.R.P.No. 3700 of 2006

O R D E R:- (Per Honble Sri Justice Suresh Kumar Kait)

     This Civil Revision Petition is filed to challenge the
decree and order dated 19.04.2006 made in C.M.A.No. 12 of
2005 by the Additional Senior Civil Judge, Tenali by
confirming the order dated 12.04.2005 made in C.R.F.No.
12208 of 2004 on the file of I Additional Junior Civil Judge,
Tenali for returning the plaint for presentation in proper
Court.

2.      We have heard the learned counsel for the petitioner.

3.      The learned counsel for the petitioner submits that
when this Court laid the proposition of law in 1996 An.W.R.
282 and 1969 An.W.R. 222 to the effect that Assignment
would constitute a part of the cause of action and the Court
within whose jurisdiction the assignment took place would
have jurisdiction to entertain the suit, the appellate Court
should have held that the trial Court has got territorial
jurisdiction to try the suit.

4.      The learned counsel for the petitioner further submits
that both the Courts below gravely erred in relying on
decisions cited 2004(2) L.S. 510 = 2004(5) ALD 57 and in
negating the contention of the petitioner-plaintiff to the
effect that the trial Court at Tenali has got territorial
jurisdiction to entertain the suit pursuant to the assignment
deed.  Accordingly, the Courts below should have held that
the aforesaid decision is not applicable to the facts of the
case and the trial Court at Tenali has territorial jurisdiction
to try the suit.

5.      It is pertinent to mention here that in the instant
petition the respondent has refused to receive the notice
sent to him, as such, it is deemed that notice is served on
him under law.

6.      It is further pertinent to mention here that when the
present Civil Revision Petition was listed on 08.02.2012
before the learned Single Judge, the said Court passed the
following order:-
A perusal of the order of the lower appellate Court would show
that divergent views were expressed by this Court on the aspect
of jurisdiction in such cases.  While the learned single Judges in
the Judgments in Chittaruvu Radhakrishnamurthy (1966 An.W.R. 
282) and P.S.Kothandarama Gupta v. Sidamsetty Vasant Kumar   
(1969 An.W.R. 222) have taken the view that the transferee can
institute the suit in the Court within whose jurisdiction the
endorsement of transfer was made, another learned single
Judge in S.S.V.Prasad v. Y. Suresh Kumar [2004(2) L.S. 510] has
taken a contra view.  In my opinion, in view of these conflicting
views and to have an authoritative pronouncement on this
aspect, it is appropriate that the issue is decided by a Division
Bench.  The case is accordingly referred to the Division Bench.
        The Registry shall place the papers before the Honourable
Chief Justice for appropriate orders in this regard.

Accordingly, this matter is placed before this Court.

7.      In case of Safiya Bee v. Mohd. Vajahath Hussain  the
Supreme Court has held as under:
The learned Judges were not right in overruling the statement
of the law by a Co-ordinate Bench of equal strength.  It is an
accepted rule or principle that the statement of the law by a
Bench is considered binding on a Bench of the same or lesser
number of Judges.  In case of doubt or disagreement about the
decision of the earlier Bench, the well accepted and desirable
practice is that the later Bench would refer the case to a larger
Bench.


8.      The brief facts of the case are that the petitioner-
plaintiff filed the plaint and the same was returned for want
of jurisdiction by the Junior Civil Judges Court, Tenali.  Being
aggrieved, he filed C.M.A.No. 12 of 2005 and the same was
dismissed vide order dated 19.04.2006.
       
9.      The trial Court returned the plaint on the ground that
the respondent is the resident of Amudalapalli,
R/o.Komaravolu village, Nizampatnam Mandal and the 
promissory note was executed in favour of one Malisetty
Raghava Rao of Nizampatnam Mandal.  Even though the wife 
of the original promisee assigned the promissory note herein
in favour of the plaintiff at Tenali to collect and enjoy the
amount due under the promissory note, the trial Court,
relying upon the ruling 2004(2) L.S. 510 in Mr.S.S.V.Prasad V.
Y. Suresh Kumar and other, held that the Court at Tenali
cannot have jurisdiction on the strength of the alleged
assignment of the promissory note at Tenali and ordered to
return the plaint to be represented in proper Court having
jurisdiction.
       
10.     Being aggrieved, the petitioner-plaintiff preferred
C.M.A. urging in the grounds that the word assignment
itself means that it is for consideration and not for collection
and it is not a restrictive assignment.  The wording in the
assignment deed regarding the assignment is as follows:



English Version:

You have to collect and enjoy.  This Promissory Note Debt
Assignment Deed is written on my consent.

11.     In Chittaruvu Radhakrishna Murthy v. Bollapalli
Chandrasekhara Rao [1966 An.W.R. 282], it is held as
follows:
Where the rights of the plaintiff depends upon the assignment
of a promissory note in his favour the assignment would
constitute part of the cause of action and the Court within
whose jurisdiction the assignment took place would have
jurisdiction to entertain the suit on the promissory note though
it was executed at place where the original parties to it were
residing and over which place a different Court had
jurisdiction:.

In that ruling, it is held :

        According to Section 20(c) C.P.C., it cannot be in doubt
that a suit can be instituted in a Court within the local limits of
whose jurisdiction the cause of action has arisen either wholly
or in part.  It is no doubt true that the promissory note was
executed at Guntur and that the original parties to the
promissory note were also residents of Guntur.  It cannot
however be forgotten that the transfer of the suit promissory
note has taken place at Vijayawada.  Not only the endorsement
was made at Vijayawada but the assignment also took place 
there.  The question therefore which arises is whether such a
transfer provides a cause of action in part at Vijayawada.  I
have no doubt that the endorsement of the suit promissory note
and the assignment of it does give rise to a part of the cause of
action at Vijayawada where admittedly the endorsement and
the assignment have taken place.  The endorsement and the
assignment would therefore provide in part a cause of action

12.     In the ruling reported in 1969 An.W.R. 222 in
P.S.Kothandarama Gupta v. Sidamsetty Vasant Kumar, it is 
reiterated that;
Assignment would constitute a part of the cause of action and
the Court within whose jurisdiction the assignment took place
would have jurisdiction to entertain the suit.  Section 70 of the
N.I.Act is not a specific provision which can override the
provisions contained in Section 20 CPC.  Section 70 of the Act
does not lay down the place where the suit has to be filed.
Further, it does not deal with the case of assignment which has
been held to constitute a part of the cause of action.
Therefore, the Court has jurisdiction to entertain the suit.

Both the rulings i.e. 1966 An.W.R. 282 and 1969 An.W.R. 222
cited above are considered in part 22 of the ruling 2004(2)
L.S. 510, wherein held that;
Most of the decisions touching on the subject turned on the
meaning assigned to the expression cause of action from a
reading of the observation of Lord Esher, referred to above.  It
is evident that way-back in the year 1889, there was a strong
claim from deviation from what was observed in COOKE V. GILI.
The question as to whether the endorsements or the
assignments, as the case may be, in those cases were made 
with the participation or knowledge of the makers of the
promissory notes, or the original debtors, is not clear.   The
hardship caused to the makers of promissory notes, in being
sued at a place unrelated to the making of the promissory note,
was taken note of by the Calcutta High Court in Harnatharai
Binjraj V. Churamoni Shah (AIR 1934 Calcutta 175) and it was
observed therein as follows:
It might have been more satisfactory if the rule were
otherwise i.e. that an assignee in taking an assignment of
a debt should take such assignment with only such right
of suing as the assignor had and could sue where the
assignor could sue and nowhere else.  I do see difficulties
in the present system under which an assignor can create
jurisdiction in any place where the Civil Procedure Code
applies but I do not think it would be right for me to
attempt to change it.

13.     In case of Ch. Radhakrishna Murthy v. B.
Chandrasekhara Rao  this Court held as under:
It will thus be clear that where the right of the plaintiff depends
upon the assignment of a promissory note in his favour the
assignment would constitute part of the cause of action and the
Court within whose jurisdiction the assignment took place
would have jurisdiction to entertain the suit on the promissory
note.  The lower Court, therefore, was obviously wrong in
stating that Section 20(c), as stated above, applies.  In the view
which I have taken it is not necessary to consider in this case
whether the common law principle that the debtor must seek
the creditor applies to a negotiable document or not.
Consequently, the case cited in the judgment of the Court
below, S.Eshwarayya v. Devi Singh, need not be considered.
That case decides that the principle that the debtor must seek
the creditor does not apply to a negotiable document.  Since I
have held that a part of the cause of action because of transfer
arose at Vijayawada, it is unnecessary to consider that principle
in this case.  In any case, the lower Court was wrong in
dismissing the suit.  Even assuming the Court at Vijayawada had
no jurisdiction, the Court ought to have returned the plaint for
its presentation to the proper Court.  The suit could not be
dismissed on that ground.
        For the reasons stated above, I would allow this revision
petition and remit the case to the Subordinate Judges Court at
Vijayawada for the disposal of the suit on merits.  The costs of
this revision will depend upon the result of the suit.

14.     In another case of P.S.Kothandarama Gupta v.
S.Vasant Kumar  this Court observed as under:
What constitutes cause of action has been the subject
matter of numerous cases, the leading case is Read v. Brown,
which has been frequently referred to in various cases of this
Court.  It has been held therein that the assignment would
constitute a part of the cause of action and the Court within
whose jurisdiction the assignment took place would have
jurisdiction to entertain the suit.
        The learned counsel for the petitioner contends that as
per Section 70 of the Negotiable Instruments Act, the suit is not
entertainable by the Court at Hyderabad.  Section 70 of the
Negotiable Instruments Act reads as hereunder:-
A promissory note or bill of exchange not made payable
as mentioned in Sections 68 and 69, must be presented
for payment at the place of business (if any), or at the
usual residence of the maker, drawee or accepter
thereof, as the case may be.
With reference to the Section it is urged that it is a specific
provision which over-rides the provisions contained in Section
20 CPC.  I am not inclined to accept this argument.  Section 70
of the N.I.Act does not lay down the place where the suit has to
be filed.  Further, it does not deal with the case of assignment
which has been held to constitute a part of the cause of action.
I think, the lower Court was justified in holding that it had
jurisdiction to entertain the suit.  The revision is accordingly
dismissed with costs.

15.     In addition to above, this Court, in the case of
Mr.S.S.V.Prasad v. Mr.Y.Suresh Kumar & Anr. , observed as 
under:
Therefore, it is held that the holder in due course of a
negotiable instrument can present a suit to recover the amount
covered by it, only in a Court within whose territorial
jurisdiction the defendants therein reside or carry on business,
or in a Court within whose territorial jurisdiction, the place at
which such negotiable instrument, can be presented, under
Sections 68 to 70 of the N.I.Act is situated.


16.     According to Section 20 (c) C.P.C., it cannot be
disputed that a suit can be instituted in a Court within the
local limits of whose jurisdiction the cause of action has
arisen either wholly or in part.  It is not in dispute that the
respondent/defendant is the resident of Amudalapalli of
Nizampatnam Mandal and promissory note was executed in   
favour of one Malisetty Raghava Rao of Nizampatnam Mandal. 
Even though the wife of original promisee assigned the
promissory note in question in favour of the
appellant/plaintiff at Tenali to collect and enjoy the amount
due under the promissory note, the question therefore, which
arises is, whether such a transfer provides a cause of action
in part at Tenali.
       
17.     As decided in the case of P.S.Kothandarama Gupta 
(supra 3), the assignment would constitute a part of the
cause of action and the Court within whose jurisdiction the
assignment took place, would have jurisdiction to entertain
the suit.

18.     Section 70 of the Negotiable Instruments Act is not a
specific provision which can over-ride the provisions contained
in Section 20 CPC.  Section 70 of N.I. Act does not lay down
the place where the suit has to be filed.  More over, it does
not deal with the case of assignment which has been held to
constitute a part of the cause of action.  It will thus be clear
that where the right of the plaintiff depends upon the
assignment of a promissory note in his favour, the assignment
would constitute part of the cause of action and the Court
within whose jurisdiction the assignment took place, would
have jurisdiction to entertain the suit on the promissory note.
       
19.     In view of above discussion and the legal position, we
are of the considered view that the learned Court has gravely
erred in relying on the decision in the case of S.S.V.Prasad v.
Y.Suresh Kumar (supra 4).

20.     Accordingly, we hold that the Court at Tenali has
jurisdiction to try the suit in question.  Consequently, the
decree and decretal order dated 19.04.2006 made in
C.M.A.No.12 of 2005 passed by the Additional Senior Civil
Judge, Tenali, confirming the order dated 12.04.2005 made
in C.F.R.No.12208 of 2004 passed by I-Additional Junior Civil
Judge, Tenali for returning the plaint for presenting in proper
Court, is hereby set aside.  Accordingly, the petitioner is at
liberty to present the suit before the Court at Tenali, upon
which, the said Court is directed to try the suit after giving
proper opportunity to both the parties.

21.     Revision petition is accordingly allowed.  No order as to
costs.
     Pending miscellaneous applications, if any, shall stand
closed.
_____________________   
SURESH KUMAR KAIT, J   
_____________ 
N. BALAYOGI, J 
5th September, 2017

one of the bidder of Auction - filed claim petition under sec.47 read with sec.151- stating that the father of the Jdr is the full owner - Jdr is only had 1/3rd share and he is a tenant of it - execution court allowed the same - their lordships held that whether an application filed by decree holder under Section 151 CPC for removing the obstruction to delivery of possession of land claimed by decree-holder held to be treated as an application under Order 21 Rule 97 and the Court has followed the procedure laid down by Order 21 Rule 98 to 100, the Honble Supreme Court in S.Rajeswari v. S.N.Kulasekaran and others (supra) held that only appeal lies against the order passed under Order 21 Rule 97 treating the order passed in the application under Section 151 CPC as one under Order 21 rule 97 since factual aspects raised in the application under Section 151 of CPC attracted the provisions of Order 21 Rule 97. The Court below in that case also followed the procedure under Order 21 Rule 97 and held that the said order is appealable under Order 21 Rule 103 of CPC. But the facts in the present case on hand are otherwise. Having participated in the auction and having kept quite at that time, the 1st respondent/third party cannot question the auction sale of EP schedule property by way of an application under Section 47 r/w Section 151 CPC. Moreover, when Section 47 of CPC has no application and it is deemed that the Court passed orders under Section 151 CPC, which is not appealable, the Court below by of allowing the application, has terminated the entire EP, which is erroneous. The order setting aside the sale of EP schedule property will have the effect of disposal of EP itself - For the foregoing reasons, the impugned order of the Court below is set aside. Accordingly, the Civil Revision Petition is allowed.

THE HONBLE SRI JUSTICE A.RAJASHEKER REDDY         

C.R.P. No.4865 of 2007

19-09-2017

Addepalli Bhaskar Rao ... Petitioner

Karmanchi Anil Kumar and another. ..Respondents 

Counsel for the Petitioner:  Sri N.Bhaskar Rao

Counsel for the Respondent: Sri V.Satyanarayana Prasad.

>HEAD NOTE:   

? Cases referred

AIR 1967 Kerala 145
2 (2000) 3 Supreme Court Cases 87 
3 (2006) 4 Supreme Court Cases 412 
4 2002 (6) ALD 834
5AIR 1964 SC 1300: (1964) 6 SCR 1001 
6(2003) 11 Supreme Court Cases 584 

HONBLE SRI JUSTICE A.RAJASHEKER REDDY         

CIVIL REVISION PETITION No. 4865 OF 2007   

ORDER : 

        This Civil Revision Petition is filed against order dated
23.08.2007 in EA No.47 of 2005 in E.P.No.133 of 2003 in
O.S.No.35 of 2002, wherein the Court below has allowed
the application filed by the 1st respondent herein under
Section 47 and Section 151 of CPC by setting aside the sale
held on 29.11.2004.

2.      Brief facts which are necessary for disposal of this Civil
Revision Petition are that the 1st respondent filed E.A.No.47
of 2005 claiming to be the tenant of the EP schedule
property along with some other property and doing business
in the said scheduled shop.  Originally, the EP Schedule
property belongs to one Kurravari family.  The father of the
JDR-2nd respondent herein i.e.,Uppala Kasiviswanadham,  
Chanduluri Satyanarayana and Nagasuri Somaiah jointly 
purchased the EP Schedule property under two sale deeds  
dated 09.02.978 and 25.11.1978, as such, the JDR has got 
only 1/3rd share in the EP schedule property and that the
sale of entire EP schedule property is not valid under law.

3.      The Decree Holder-petitioner herein filed counter
denying the allegations in the petition and contended that
the sale held is in accordance with the law and procedure
and that the 1st respondent herein is not the tenant or
owner of the property.  That the 1st respondent also
participated in the open auction held by the Court below on
29.11.2004 and the Court Amin has read over the contents
of sale notification, but the 1st respondent has not raised
any objection, as such, he is estopped from raising such
pleas.  That the provision of law quoted by the 1st
respondent is not correct and that the sale of EP schedule
property in the open auction by the Court is after following
due process of law.

4.       P.Ws.1 and 2 were examined on behalf of the 1st
respondent and Exs.A1 to A6 were got marked.   On behalf of
the petitioner herein, R.Ws.1 and 2 were examined and
Exs.B1 to B6 were got marked.
5.        The Court below passed impugned order in the
Revision Petition holding that the 2nd respondent-JDR has
got saleable interest in respect of 1/3rd share of the EP
schedule property only but not for the entire EP schedule
property and sale of entire schedule property in respect of
entire EP schedule property was set aside.
6.         Learned counsel for the revision petitioner submits
that the Court below erroneously allowed the application
filed by the 1st respondent under Section 47 read with
Section 151 of CPC, as Section 47 of CPC has no application
since the 1st respondent is not a party to the suit.  He
submits that when once the 1st respondent participated in
the open auction conducted by the Court, and the Court
Amin has read over the contents of the sale notification, he
is estopped from raising all such pleas regarding saleable
interest of JDR-2nd respondent.  He submits that the
application filed by the 1st respondent before the Court below
is not maintainable.  He submits that the saleable interest of
the JDR can only be questioned by the auction purchaser
under Order 21 Rule 98 but nobody else.  He submits that
the Court below erroneously allowed the application holding
that the JDR has no saleable interest in respect of entire EP
Schedule property.  He submits that the application under
Order 21 Rule 99 can be maintained only on certain grounds
and that the 1st respondent has not made out any such
grounds.  In support of his contentions, he relied on the
judgments reported in P.Narayana Pillai v. Kunju Kunju
Gopalan  and Kadiyala Rama Rao v. Gutala Kahna Rao 
(dead) by Lrs .
7.        On the other hand, learned counsel for the 1st
respondent submits that the application filed by the 1st
respondent under Section 47 r/w Section 151 CPC can be  
treated as one under Order 21 Rule 97 of CPC, since the case
of the 1st respondent falls under the said provision.  He
submits that the Court below after considering the oral and
documentary evidence adduced on either side, passed
judgment and decree, as such, this Revision Petition does
not lie before this Court and that the petitioner has to prefer
appeal under Order 21 Rule 103 of CPC.  He submits that
the 1st respondent is the owner and tenant in respect of
1/3rd share of the EP schedule property, as such, the Court
below rightly set aside the sale of entire EP schedule
property.
In support of his contentions, he relied on the judgments
reported in S.Rajeswari v. S.N.Kulasekaran  and
D.Kyathappa and others v. K.L.Siddaramappa .
8.      Before considering the rival contentions of both parties,
it is relevant to extract Section 47 of CPC.
  Section 47. Questions to be determined by the Court
executing decree: (1): All questions arising between the parties
to the suit in which the decree was passed, or their,
representatives, and relating to the execution, discharge or
satisfaction of the decree, shall be determined by the Court
executing the decree and not by a separate suit.
  2)xxxx
  3) Where a question arises as to whether any person is or is not
the representative of a party, such question shall, for the
purposes of this section, be determined by the Court.


        A reading of Section 47 of CPC goes to show that all the
questions arising between the parties to the suit in which the
decree was passed, shall be determined by the Court
executing the decree and not by a separate suit.  Obviously
the said provision has no application to the facts of the
present case on hand, since the 1st respondent is not a party
to the suit i.e., OS No.35 of 2002.  According to the learned
counsel for the 1st respondent/claimant, when once the 1st
respondent has remedy under Order 21 Rule 97 of CPC, the 
question of invoking Section 151 of CPC does not arise.
Even an application under Order 21 Rule 91 of CPC also
cannot be invoked by the 1st respondent, since the 1st
respondent has filed application on the ground that the
judgment debtor has no saleable interest in respect of the
entire EP schedule property as only purchaser of the EP
schedule property is entitled to make such an application
under Order 21 Rule 91 CPC, as held by the Honble Apex
Court in Kadiyala Rama Rao v. Gutala Kahna Rao (dead) by LRs. 
(supra), wherein it is held as follows:
      14. The contextual facts depict that the Revision Petition was
dismissed on 11th April, 1980 that is long after the completion of sale which
has been totally ignored and the Learned Single Judge as a matter of fact has
proceeded on a total misconception of facts. Be it noted that at no point of
time, any question was raised as regards the total purchase price and as such
the attempt on the part of the respondent herein before this Court to denounce
the sale on the ground of inadequacy of price ought not to be permitted to be
raised before this Court at this juncture. The Learned Single Judge erroneously
proceeded on certain misconception of facts as also of law by reason of the
factum of challenge of sale being on the ground of saleability. Order 21 Rule
90 does not envisage the issue of saleability and the Learned Single Judge was
in error in introducing such a concept under Order 21 Rule 90 of the Code.  In
any event as noticed above the issue of saleable interest can only be agitated
by the purchaser in terms of Order 21 Rule 91 and not in any event by the
Judgment-debtor. The ground of challenge is specific in the provision itself,
namely, material irregularity or fraud and in the absence of any evidence or
even an allegation in regard thereto in the petition under Order 21 Rule 90,
question of introduction of the concept of no saleable interest or another
opportunity to the judgment-debtor does not and cannot arise.

     In this case, admittedly, the Court below has set aside
the sale at the instance of the 1st respondent, who is a third
party to the suit.  Moreover, he also unsuccessfully
participated in the auction conducted by the Court below for
purchase of entire EP Schedule property, as he was not the
highest bidder in the said auction.   In the cross-
examination of 1st respondent as P.W.1 before the Court
below in the claim petition, he admitted that the sale
notification was read over to him by the Amin, but he never
objected to the same either on the ground that he is tenant
or on the ground that he is having 1/3rd share in the EP
schedule property, as such, he is estopped from raising such
pleas in the present application once again.    Obviously, the
1st respondent has no locus standi to question the same on
the ground that the 2nd respondent-Judgment Debtor has 
no saleable interest in respect of the entire EP schedule
property, but the petitioner herein, being the auction
purchaser, only has got right to question the same and
entitled to do so under Order 21 Rule 91 of CPC.  As such,
the impugned order of the Court below is liable to be set
aside.
9.       The other contention raised by the learned counsel for
the 1st respondent that the application should have been
treated under Order 21 Rule 97 of CPC. The said contention
is also without any substance because Order 21 Rule 97 has 
no application as the same deals with filing of application by
the Decree Holder or purchaser on the resistance or
obstruction by third parties.
        Order 21 Rule 97 reads as follows:
        97. Resistance or obstruction to possession of immovable
property: (1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property sold
in execution of a decree is resisted or obstructed by any person
in obtaining possession of the property, he may make an
application to the Court complaining of such resistance or
obstruction.
        (2) Where any application is made under sub-rule (1), the Court
shall proceed to adjudicate upon the application in accordance
with the provisions herein contained.

        The provisions of Order 21 rule 97 thus categorically
envisage that the holder of a decree for the possession of
immovable property or the purchaser of such property sold
in execution of a decree is resisted or obstructed, he may
make such an application to the Court complaining such
resistance or obstruction.  But in this case, application is
made by the 1st respondent being third party, as such, said
contention cannot be accepted in view of the fact that the 1st
respondent is neither a decree holder nor auction purchaser
in the auction conducted by the Court below.
10.       That apart, the 1st respondent cannot also invoke Order
21 Rule 90 of CPC since he himself participated in the auction
conducted by the Court below for purchase of entire EP
schedule property and also admitted in his cross-
examination, as already observed supra that the sale
notification was read over to him by the Court Amin, he never
objected to the same, as such, the application cannot also be
treated under Order 21 Rule 90 of CPC also as held by the
Honble Supreme Court in Kadiyala Rama Rao v. Gutala Kahna Rao 
(dead) by LRs. (supra), as follows:
  7. On a plain reading of the provisions thus three several factors emerge
and which ought to be taken note of in the matter of setting aside the sale of
an immovable property, viz.,
  (i) material irregularity and fraud in publishing or conducting the sale;
          (ii) the Court dealing with such an application is satisfied that the
              applicant has sustained substantial injury by reason of such an
              irregularity or fraud;    and
(iii) no application would be entertained upon a ground which the applicant
could have taken on or before the date of drawing up of the proclamation of
sale.
8.  The third requirement as above needs, however, special mention by
reason of the factum of incorporation of the principles analogous to the
doctrine of constructive res judicata as envisaged under Section 11 of the
Code.  The legislative intent is clear and categorical in both the provisions as
above that in the event of an intentional relinquishment of a known right,
question of proceeding further would not arise.

9. This observation finds favour in the decision of this Court in Dhirendra
Nath Gorai v. Sudhir Chandra Ghosh . It is significant to note, however,
that at the time of auction Judgment-debtor 2 was present in court and
Judgment-debtor 2 was also a signatory to the application under Order 21
rule 90.

       It is needless to point out that there is no material on
record or evidence to the effect that any fraud or illegality
is played by the petitioner while purchasing the EP
schedule property in the auction conducted by the Court
below.   However, the 1st respondent had filed an
application by invoking the provision under Section 47 of
CPC read with Section 151 of CPC.
        Section 151 of CPC reads as follows:
        151. Saving of inherent powers of Court:-Nothing in this
Code shall be deemed to limit or otherwise affect the inherent
power of the Court to make such orders as may be necessary for
the ends of justice, or to prevent abuse of the process of the
Court.

   Section 151 of CPC provides for inherent powers on the
court to make such orders as may be necessary to meet the 
ends of justice or to prevent abuse of the process of the
Court, but not as a matter of course. Obviously, the 1st
respondent is neither party to the suit nor to the EP and
Section 151 CPC can only be invoked to meet the ends of 
justice or to prevent the abuse of process of Court. But in the
present case, it is not the case of the 1st respondent that
there is abuse of process of Court and that there is no
finding of the Court below to that effect.
11.        While dealing with the question whether an
application filed by decree holder under Section 151 CPC for
removing the obstruction to delivery of possession of land
claimed by decree-holder held to be treated as an application
under Order 21 Rule 97 and the Court has followed the
procedure laid down by Order 21 Rule 98 to 100, the Honble
Supreme Court in S.Rajeswari v. S.N.Kulasekaran and others 
(supra) held that only appeal lies against the order passed
under Order 21 Rule 97 treating the order passed in the
application under Section 151 CPC as one under Order 21 
rule 97 since factual aspects raised in the application under
Section 151 of CPC attracted the provisions of Order 21 Rule
97.  The Court below in that case also followed the procedure
under Order 21 Rule 97 and held that the said order is
appealable under Order 21 Rule 103 of CPC.  But the facts in
the present case on hand are otherwise.   Having participated
in the auction and having kept quite at that time, the 1st
respondent/third party cannot question the auction sale of
EP schedule property by way of an application under Section
47 r/w Section 151 CPC.     Moreover, when Section 47 of
CPC has no application and it is deemed that the Court
passed orders under Section 151 CPC, which is not 
appealable, the Court below by of allowing the application,
has terminated the entire EP, which is erroneous.   The order
setting aside the sale of EP schedule property will have the
effect of disposal of EP itself and nothing survives for
adjudication in the EP, as such, contention of the learned
counsel for the 1st respondent that the impugned order is
interlocutory in nature, and that revision is not maintainable
also cannot be accepted and the judgments cited by the
learned counsel for the 1st respondent in S.Rajeswari v.
S.N.Kulasekaran and others (supra) & D.Kyathappa and others  
v. K.L.Siddaramappa have no application to the facts of the
present case on hand. Moreover, judgments of Courts are not
to be construed as statues as held by the Honble Supreme
Court in the judgment reported in Ashwani Kumar Singh v.
U.P.Public Service Commission and others , wherein the Honble
Supreme Court held as follows:
        10. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed.
Observations of Courts are not to be read as Euclid's theorems
nor as provisions of the statute. These observations must be
read in the context in which they appear. Judgments of
Courts are not to be construed as statutes. To interpret words,
phrases and provisions of statute, it may become necessary
for Judges to embark into lengthy discussions, but the
discussion is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments. They
interpret words of statutes; their words are not to be
interpreted as statutes. In London Graving Dock Co. Ltd. v.
Horton, (1951) AC 737 at p. 761, Lord Mac Dermot observed:
      "The matter cannot, of course, be settled merely by treating
the ipsissima vertra of Willes, J, as though they were part of
an Act of parliament and applying the rules of interpretation
appropriate thereto. This is not to detract from the great
weight to be given to the language actually used by that most
distinguished Judge."
     11. In Home Officer V. Dorset Yacht Co., [1970] 2 All ER 294
Lord Reid said, "Lord Atkin's speech.........is not to be treated
as if it was a statute definition. It will require qualification in
new circumstances." Megarry, J in Shepherd Homes Ltd. v.
Sandham, (No. 2) (1971) 1 WER 1062 observed: "One must   
not, of course, construe even a reserved judgment of Russell,
L.J. as if it were an Act of Parliament." In Herrington v.
British Railways Board, (1972) 2 Wl R 537 Lord Morris said :
     "There is always peril in treating the words of a speech or
judgment as though they are words in legislative enactment,
and it is to be remembered that judicial utterances made in
the setting of the facts of a particular case."
        12. Circumstantial flexibility, one additional or different fact
may make a world of difference between conclusions in two
cases. Disposal of cases by blindly placing reliance on a
decision is not proper.
    13. The following words of Hidayatullah, J. in the matter of
applying precedents have become locus classicus: (Abdul
kayoom v. CIT (AIR 1962 SC 680), AIR p.688, para 19
          "19.Each case depends on its own facts and a close
similarity between one case and another is not enough
because even a single significant detail may alter the entire
aspect. In deciding such cases, one should avoid the
temptation to decide cases (as said by Cardozo) by matching
the colour of one case against the colour of another. To decide,
therefore, on which side of the line a case falls, the broad
resemblance to another case is not at all decisive."
        "Precedent would be followed only so far as it marks the
path of justice, but you must cut the dead wood and trim off
the side branches, else you will find yourself lost in thickets
and branches. My plea is to keep the path to justice clear of
obstructions which could impede it."
      For the foregoing reasons, the impugned order of the
Court below is set aside.
      Accordingly, the Civil Revision Petition is allowed.  There
shall be no order as to costs.  Miscellaneous petitions, if any,
pending in this Civil Revision Petition shall stand disposed of.
________________________   
A.RAJASHEKER REDDY,J     
19-09-2017