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Himachal Pradesh High Court

Sh. Durga Ram vs State Of H.P. And Others on 17 November, 2015

Author: Dharam Chand Chaudhary

Bench: Dharam Chand Chaudhary

           IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                                         RSA No. 394 of 2007




                                                                                       .
                                                        Decided on: 17th November, 2015





           Sh. Durga Ram                                                        .......Appellant.





                                                       Versus
           State of H.P. and others                                             ...Respondents.
           Coram




                                                             of
           The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
           Whether approved for reporting?1 No.
           For the appellant:      rt                 Mr.  Vinay    Kuthiala, Senior
                                                      Advocate with Mr. Diwan Singh,
                                                      Advocate.

           For the respondents:                       Mr. Virender Verma, Addl. A.G
                                                      with Mr. Pushpinder Jaswal, Dy.
                                                      A.G for respondents No. 1 and 3.
                                                      Mr. Ajay Sharma, Advocate for



                                                      respondent No. 2.

                   Dharam Chand Chaudhary, Judge (Oral)

RSA No. 394 of 2007 & CMP No. 10492 of 2015 This appeal has been directed against the judgment and decree dated 05.06.2006 passed by learned District Judge, Bilaspur in Civil Appeal No. 85 of 2005, whereby the appeal has been dismissed and judgment and decree passed by learned Civil Judge (Junior Division), Bilaspur in Civil Suit No. 94/1 of 2001 affirmed.

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

2. The grouse of the appellants-plaintiffs is that vide notice dated 05.09.2001 a sum of `11,99,540/- has .

wrongly been claimed by respondent-defendant No. 2 Corporation. The demand so raised by the respondent-

defendant Corporation was assailed by them in the suit of and also in the appeal before learned lower appellate Court. However, learned trial Court has dismissed the suit rt and the appeal they preferred also met the same fate.

3. It is borne out from the perusal of application, (CMP No. 10492 of 2015) that notice dated 05.09.2001, whereby demand of `11,99,540/- towards outstanding loan raised against the appellants-plaintiffs was later on withdrawn by respondent-defendant No. 2 Corporation with liberty reserved to initiate appropriate proceedings under Section 32-G of the Himachal Pradesh Financial Act. Such facts were taken on record of Civil Writ Petition No. 9315 of 2013 filed by the co-guarantor of the appellants-plaintiffs. The writ petition being not pressed was accordingly disposed of.

4. Now, the respondent-defendant Corporation has issued a fresh notice dated 24.04.2015, Annexure ::: Downloaded on - 15/04/2017 19:21:27 :::HCHP 3 A-1(Colly.) to the appellants-plaintiffs and also principle loanees as well as co-guarantor and thereby raised .

demand of `68,81,959/-.

5. It is the operation of this notice has been sought to be stayed in the application (CMP No. 10492 of of 2015). The appellants-plaintiffs could have challenged this notice in the writ jurisdiction also, rt however, according to Mr. Vinay Kuthiala, learned Senior Advocate representing them, pendency of the suit out of which this appeal has arisen is a hurdle in their way to invoke the writ jurisdiction. True it is that the suit which was based upon the previous notice dated 05.09.2001 and which was subsequently withdrawn by the respondent-defendant Corporation, the subsequent notice dated 24.04.2015, Annexure A-1 (Colly.) to the application (CMP No. 10492 of 2015) can be assailed in the suit by way of amendment. However, Mr. Kuthiala submits that in case the appellants-plaintiffs are permitted to withdraw the suit with liberty reserved to challenge the fresh notice dated 24.04.2015 read with notice dated 21.07.2015, Annexure A-1 (Colly.), it would ::: Downloaded on - 15/04/2017 19:21:27 :::HCHP 4 serve the ends of justice. This Court also feels that instead of calling upon the appellants-plaintiffs to .

challenge the fresh notice by way of seeking amendment in the plaint, the legality and validity thereof can be assailed by invoking writ jurisdiction or initiating of any other or further proceedings in accordance with law, particularly when the previous notice dated rt 05.09.2001 was withdrawn by the respondent-defendant during the pendency of Civil Writ Petition No. 9315 of 2013, filed by the co-guarantor of the appellants-

plaintiffs. Therefore, the appellants-plaintiffs are permitted to withdraw the suit with liberty reserved to challenge the fresh notice dated 21.07.2015 and 24.04.2015, Annexure A-1 (Colly.) to the application (CMP No. 10492 of 2015) before appropriate forum in accordance with law.

6. Consequently, this appeal and CMP No. 10492 of 2015 are dismissed as withdrawn.

    November 17, 2015                     (Dharam Chand Chaudhary)
         (naveen)                                  Judge




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