Telangana High Court
Shaik Janimiya vs State Bank Of India on 27 April, 2020
Equivalent citations: AIRONLINE 2020 TEL 64
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
1 MSR,J & TA,J
wp_27987_2019
THE HIGH COURT OF JUDICDATURE FOR THE STATE OF
TELANGANA : HYDERABAD
****
W.P.NO.27987 OF 2019
Shaik Janimiya .. Petitioner
Vs.
State Bank of India, SAM Branch II,
Rep by its Authorized Officer, Kachiguda,
Hyderabad .. Respondent
DATE OF THE JUDGMENT PRONOUNCED: 27.04.2020
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgment?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Their Lordships wish to Yes/No
see the fair copy of the judgment?
___________________________
M.S.RAMACHANDRA RAO, J
_______________________
T.AMARNATH GOUD, J
2 MSR,J & TA,J
wp_27987_2019
*HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTSICE T.AMARNATH GOUD
+ W.P.NO.27987 OF 2019
% DATED 27th APRIL, 2020
# Shaik Janimiya .. Petitioner
Vs.
$ State Bank of India, SAM Branch II,
Rep by its Authorized Officer, Kachiguda,
Hyderabad .. Respondent
<Gist:
>Head Note:
! Counsel for the Petitioner : Sri V.Murali Manohar
^Counsel for the Respondent : Sri M.Srikanth Reddy
? CASES REFERRED:
1. 2018 (3) ALD 266 (DB)
2. (2010) 8 SCC 110
3. (2011) 2 SCC 782
4. 2006(6) ALT 695
5. 2006(6)ALD 778
6. (2001) 10 SCC 740
7. (2004) 3 SCC 553, at page 572
8. (1998) 8 SCC 1
9. (2015) 16 SCC 31
10. AIR 1954 BOMBAY 50
11. (2010) 1 SCC 512
12. (1974) 3 SCC 554
13. AIR 1972 KERALA 103
14. 1979 (4) SCC 176
15. 1985 (3) SCC 737
3 MSR,J & TA,J
wp_27987_2019
HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T. AMARNATH GOUD
Writ Petition No.27987 of 2019
ORDER :(Per Sri Justice M.S.Ramachandra Rao) Petitioner is the Managing Director of M/s Crescent Formulations Pvt.Ltd which Company is engaged in the manufacture and marketing of pharmaceutical formulations.
2. M/s Meena Jewellers Exclusive Pvt Ltd and other Companies of the said group ( for short 'the borrowers') had borrowed loans from the State Bank of India ( for short 'the Bank'), a Public Sector Nationalized Bank.
3. The Stressed Asset Management Branch-II of the said Bank is the 1st respondent in this Writ Petition.
4. Property being Plot No.1 in Sy.No.11/2(p) admeasuring 569 sq.yds situated at Khanamet Village, Serilingampally Mandal and Municipality, Ranga Reddy District belonging to Smt.Hema Jethwani was mortgaged by the borrowers to the Bank. Other properties were also mortgaged to the Bank for securing the loans.
5. The Bank initiated proceedings under the SARFAESI Act,2002 to recover the dent owed to it by the borrowers.
4 MSR,J & TA,J wp_27987_2019
6. The respondent issued an e-auction notice under the said Act proposing to conduct e-auction of several properties on 29.2.2017 including the above referred property which was mentioned as S.No.1 in the list of open lands at pg 2 of the e-auction notice.
7. Petitioner deposited Rs.21,80,000/- as EMD and later became the highest bidder for the above property quoting Rs.2,19,00,000/- .
8. On 30.11.2017, the respondent addressed a letter to the petitioner declaring him as the highest bidder and directed him to deposit balance EMD amount of 25% of Rs.32,75,000/- immediately. Petitioner complied and another letter No.SMB/HYD/GR/1356 dt.30.11.2017 was issued by the respondent directing him to deposit Rs.1,61,81,000/- being the 75% of the sale consideration within 15 days from the date of the auction.
9. Petitioner paid the entire sale consideration within 15 days from the date of the auction as directed by the respondent.
10. On 13.12.2017, the respondent issued sale certificate to petitioner and deducted TDS of Rs.2,19,000/- as per Sec.194(1)(A) of the Income Tax Act,1961 and rules made thereunder.
11. Petitioner was asked to make arrangements for registration of the sale certificate with the concerned Sub-Registrar.
12. When the petitioner approached the Sub-Registrar, the latter informed the petitioner that the properties in Sy.No.11 of Khanamet 5 MSR,J & TA,J wp_27987_2019 village were in the prohibitory list notified under Sec.22-A of the registration Act, 1908 by the State of Telangana and that he would not register the certificate of sale issued by the respondent in favor of the petitioner.
13. Petitioner contends that he demanded the respondent to refund the sum of Rs.2,19,00,000/- deposited by him with the respondent with interest @12% p.a and also issued a letter dt.22.2.2018 to the respondent for such refund.
14. On 12.3.2018, the respondent wrote to the petitioner that it had made certain enquiries with the Registration Department of the State of Telangana and came to know that some properties locate in Sy.No.11 of Khanamet Village were being registered by the Sub- Registrar and the petitioner should take steps to get the above property registered. The respondent also denied that it had in any way misled the petitioner and contended that petitioner had participated in the auction after verifying all details of the property.
15. Before the said letter reached the petitioner, he sent an email on 14.3.2018 to the respondent reiterating his plea of refund of the amount he paid to it with interest. He also sent another letter dt.27.3.2018 with the same request refuting the stand of the respondent that it did not do anything wrong.
16. The respondent replied to it on 21.4.2018 stating that the properties in Sy.No.11 of Khanamet Village were put in the 6 MSR,J & TA,J wp_27987_2019 prohibitory list on 28.2.2018 but the sale certificate had been issued by it to the petitioner on 13.12.2017 before the said date and refused to refund the amount to the petitioner.
17. Further correspondence continued between the parties.
18. Petitioner addressed letters on 25.4.2018,17.5.2018 and ultimately on 5.6.2018, the Bank informed the petitioner that it will refund Rs.2,16,81,000/- i.e the sale consideration paid by the petitioner excluding the 1% TDS.
19. But in a letter dt.27.6.2018, the Bank took the defence that the auction as conducted as "As is where is" basis and at the time of sale of the property, there were no prohibitions for registration of the property, but it was willing to refund the amount remitted by him excluding the TDS.
20. On 4.7.2018, the respondent refunded the said amount to the petitioner by way of a NEFT transfer to his SB a/c.
21. Petitioner contends that it is not open to the respondent to take a plea that petitioner cannot seek refund or interest on the ground that the sale was conducted on 'as is where is' basis, and that this Court had not accepted such a plea in other cases particularly Mandava Krishna Chaitanya v. UCo Bank, Asset Management Branch1. 1 2018 (3) ALD 266 (DB) 7 MSR,J & TA,J wp_27987_2019
22. Petitioner contends that the respondent had utilized the amount deposited by petitioner for 7 months without paying any interest to him and so this Court ought to direct the respondent to also pay interest at 12% p.a from the date of deposit by petitioner till date of refund.
The contentions of the respondent
23. The respondent firstly contended that the petitioner has an alternative remedy of filing an appeal before the Debt Recovery Appellate tribunal as provided under Sec.17 of the SARFAESI Act,2002. reliance is palced on decisions of the Supreme Court in United Bank of India v. Satyawati Tandon2 , Kanaiyalal Lalchand Sachdev v. State of Maharashtra3 and decisions of this Court in K.Balakrishna v. Debts Recovery Tribunal4 and V.K.Shekhar v. Indian bank and others5 in support of the said plea.
24. It stated that petitioner was the highest bidder in the auction conducted on 30.11.2017 for the above property for Rs.2,19,00,000/-, that he paid the entire sale consideration from which 10% TDS had been deducted by it and the respondent had issued sale certificate to petitioner on 13.12.2017.
25. It is alleged that the Bank had obtained encumbrances/prohibition details from the website of the Registration and stamps department of 2 (2010) 8 SCC 110 3 (2011) 2 SCC 782 4 2006(6) ALT 695 5 2006(6)ALD 778 8 MSR,J & TA,J wp_27987_2019 the Govt. of Telangana on 30.12.2017 and 2.1.2018 which did not indicate any prohibition order or encumbrance.
26. It stated that it transferred to petitioner Rs.2,16,81,000/- excluding TDS as per petitioner's desire on 4.7.2018 to his SB account.
27. It however denied it's liability to pay interest to the petitioner contending that since petitioner himself withdrew from the transaction of sale relying on the prohibitory order issued by the State of Telangana in respect of the subject property.
28. But it is important to note that it did not deny that before the sale certificate could be registered, the State Government had imposed a prohibition on the registration of plots in Sy.NO.11 of Khanamet village which covers the above property.
The consideration by the Court
29. We have noted the contentions of both sides.
30. In our considered opinion, there are no disputed questions of fact arising for consideration in the instant case warranting a trial and adjudication before the Debts Recovery Tribunal, since even the respondent does not dispute that before the sale certificate could be registered, the State Government had imposed a prohibition on the registration of plots in Sy.No.11 of Khanamet village, in which the above property is located. So it became impossible for the title to be property to be conveyed to the petitioner by registering the sale 9 MSR,J & TA,J wp_27987_2019 certificate. Petitioner cannot be compelled to wait till the Bank litigates with the State and resolves the issue with the State.
31. In fact the list of prohibited properties issued by the Registration and Stamps Department (Ex.P5) shows that land in Sy,No.11 of Khanamet village of extent Ac.318 is recorded as Government land since 16.6.2017 as per notification No.LR.No.B/1751/2017. Therefore much before the issuance of sale certificate to petitioner on 13.12.2017 itself, the above property appears to have been included in the prohibitory list by the State invoking it's powers under Sec.22-A of the Registration Act, 1908.
32. Therefore the respondent's plea that only after it issued the sale certificate to the petitioner, the above property was put in the prohibitory list by the State is rejected.
Existence of alternative remedy is not a bar to entertaining of the Writ Petition
33. We shall first deal with the contention raised by the respondent about the existence of alternative remedy in respect of claim of the petitioner before the Debt Recovery Appellate Tribunal under Sec.17 of the Act.
10 MSR,J & TA,J wp_27987_2019
34. A 3 Judge Bench of the Supreme court while dealing with a case under the Tripura Sales Tax Act held in State of Tripura v.
Manoranjan Chakraborty6 as under :
"4. It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has against a high- handed or palpable illegal order which may be passed by the assessing authority." (emphasis supplied)
35. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd7. the Supreme Court elaborated:
" 27.... the following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any 6 (2001) 10 SCC 740 7 (2004) 3 SCC 553, at page 572 11 MSR,J & TA,J wp_27987_2019 other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks8.) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."(emphasis supplied)
36. So it is not an absolute rule of law that a High Court cannot exercise of it's jurisdiction under Art.226 of the Constitution of India merely because there exists an alternative remedy. It is in the nature of a self imposed restriction only. If a particular case falls in the above named exceptions, , there is no bar for this Court to entertain and grant relief to the person aggrieved by the arbitrary and unreasonable action of a State or State entity where there is grave injustice caused to a citizen.
Plea of respondent that the Sale was conducted on "as is where is" basis is liable to be rejected
37. Coming to the plea of the respondent that the sale was held on "As is where is" basis and so petitioner cannot claim interest is concerned, in Mandava case ( 1 supra) , the Division Bench of this Court held:
"20. In terms of the statutory scheme of the SARFAESI Act and the Rules of 2002 and given the weighty preponderance of judicial wisdom, as set out supra, a secured creditor who is 8 (1998) 8 SCC 1 12 MSR,J & TA,J wp_27987_2019 empowered under the SARFAESI Act to enforce any secured interest created in its favour, without the intervention of a Court or a Tribunal, but in accordance with the procedure prescribed therefor, cannot take the responsibility resting upon it lightly. Such a secured creditor not only owes a duty to protect the interest of the borrower by raising the best possible price while selling his mortgaged properties, but also owes a duty to the auction purchaser to verify the encumbrances that attach to the mortgaged property proposed to be sold, so as to inform all intending bidders of the same. Clauses (a) and (f) in the proviso to Rule 8(6) of the Rules of 2002 bear out this responsibility explicitly, as the secured creditor is mandated thereunder to include the details of the encumbrances known to it and also any other thing which may be considered material for a purchaser to know in order to judge the nature and value of the property. These clauses therefore visit a duty upon the secured creditor to undertake due diligence at least at the stage of putting the secured asset to sale, if not at the time of taking the said property as security while granting loans, so that the bidders in the auction can rest assured that the bank has taken necessary measures in this regard and proceed to participate in the auction sale. Ignorance of the secured creditor as to the encumbrances on the property sold by it is no longer an acceptable argument in the light of the decisions of various Courts rejecting the plea that a sale on 'as is where is' basis constitutes a shield of protection.
21. Further, the concept of 'as is where is' and 'as is what is' basis has lost its significance in the current commercial milieu and the principle of caveat venditor is more on the rise as compared to the outdated principle of caveat emptor. The Transfer of Property Act, 1882, requires the seller to own up to certain duties and it is not open to a responsible bank to take an innocent auction purchaser for a ride by selling to him a tainted property and thereafter claim protection under the principles of 'buyer beware'. The counter-affidavit filed by the bank clearly demonstrates that the bank undertook no exercise whatsoever to verify and ascertain as to what encumbrances 13 MSR,J & TA,J wp_27987_2019 attached to the subject property at any stage. No details are forthcoming of any efforts having been made by the bank, be it before the registration authorities or any other authority at any stage. Now, it has come to light that the property in question is tainted on grounds more than one. It falls within the full tank level of a lake and, surprisingly, it is also treated as a ceiling surplus land. That apart, the possession of the property cannot even be handed over by the bank to the petitioner as the sale was effected without the bank securing actual physical possession thereof and the bank does not deny the factum of a lease having been created by the borrower in relation thereto. The bank therefore cannot comply with the statutory mandate of delivering actual possession of the property sold under the sale certificate. The decisions of various Courts referred to supra would come to the aid of the petitioner in this regard. That apart, the registration authorities already indicated to the petitioner that the subject land is noted as a ceiling surplus land. Therefore, even if they do entertain the sale certificate issued by the bank for registration, it would be subject to this cloud and would not amount to clear conveyance of title. It is therefore manifest that the bank made the innocent petitioner a victim by failing to exercise due diligence, not only in terms of the statutory scheme of the SARFAESI Act and the Rules of 2002, but also in its own commercial interest, let alone public interest, when it accepted this property as security for the loan sanctioned by it. This utter carelessness on the part of the bank in sanctioning loans, by use of public monies, on the strength of secured assets which are not even worthy of being mortgaged, requires to be deprecated in the strongest terms. Banks necessarily have to exercise more care and caution while using public monies available with them, be it through deposits by customers or otherwise, when sanctioning loans without caution or worse and cannot be permitted to claim protection under outdated legal principles so as to victimize innocent auction purchasers, such as the petitioner. This Court therefore has no hesitation in holding that the auction sale held by the bank, without even exercising minimum care to ascertain the encumbrances attaching to the subject property 14 MSR,J & TA,J wp_27987_2019 and without informing the petitioner or other bidders of the same, vitiates the sale proceedings, culminating in issuance of the sale certificate which is yet to be registered. The writ petition is accordingly allowed setting aside the said sale. The bank shall refund the sale consideration of ` 4,80,44,000/- paid by the petitioner, with interest thereon at 18% per annum from the date of the deposit till the date of realization, within two weeks from the date of receipt of a copy of this order. As the bank is itself at fault for this entire imbroglio and the petitioner was made to part with his valuable monies with no consequential benefit therefor and the bank enjoyed the custody of these monies all through, the rate of interest as applied by the Supreme Court in like circumstances in Mathew Varghese v. M. Amritha Kumar MANU/SC/0114/2014MANU/SC/0114/2014 : 2014 (4) ALT 21 (SC) : (2014) 5 SCC 610 : 2014 (4) ALT 23.1,29.1 (DN SC.) is adopted."(emphasis supplied)
38. Therefore this plea of the respondent is rejected. Why award of interest is necessary
39. Once the transaction itself was annulled on account of the prohibition imposed by the State for registration of the above property, the respondent cannot say that though it had utilized petitioner' money upto 4.7.2018, it had no liability to pay interest thereon.
40. Under Sec.65 of the Contract Act,1872 petitioner, as a party to the contract with the respondent is entitled to seek restoration of all such advantage from other party which they took from such contract when the contract is discovered to be void or becomes void 15 MSR,J & TA,J wp_27987_2019
41. In Committee-GFIL v. Libra Buildtech (P) Ltd9., an auction sale of immoveable properties of a Company (GFIL) by a Committee constituted by the Supreme Court took place. Successful bidders deposited with the Committee entire amount of sale consideration and stamp duty in terms of auction conditions and directions of Court monitoring the transaction. But despite full performance of purchasers' part of the contract, the Committee ( seller) could not deliver possession of the properties to the purchasers and the transaction failed for reasons beyond the control of the parties. The Supreme Court cancelled the transaction and directed the Committee to refund the entire sale consideration with interest and permitted the petitioners to approach the State Government to claim refund of stamp duty. The Committee refunded the sale consideration, but the State refused to refund the stamp duty spent for execution of sale deeds in their favor in relation to the properties in question. The purchasers then approached the Supreme Court. It held that they are entitled under Sec.65 of the Contract Act,1872 to refund of the stamp duty as well. It held:
"25. In the first place, admittedly the transaction originally intended between the parties i.e. sale of properties in question by GFIL Committee to the applicants was not accomplished and failed due to reasons beyond the control of the parties. Secondly, this Court after taking into consideration all facts and circumstances also came to the conclusion that it was not possible for the parties to conclude the transactions originally intended and while cancelling the same directed the seller (GFIL 9 (2015) 16 SCC 31 16 MSR,J & TA,J wp_27987_2019 Committee) to refund the entire sale consideration to the applicants and simultaneously permitted the applicants to claim refund of stamp duty amount from the State Government by order dated 26-9-201211. Thirdly, as a result of the order of this Court, a right to claim refund of amount paid towards the stamp duty accrued to the applicants. Fourthly, this being a court-
monitored transaction, no party was in a position to take any steps in the matter without the permission of the Court. Fifthly, the applicants throughout performed their part of the contract and ensured that transaction in question is accomplished as was originally intended but for the reasons to which they were not responsible, the transaction could not be accomplished. Lastly, the applicants in law were entitled to claim restoration of all such benefits/advantages from the State once the transaction was cancelled by this Court on 26-9-2012 in the light of the principle contained in Section 65 of the Contract Act which enable the party to a contract to seek restoration of all such advantage from other party which they took from such contract when the contract is discovered to be void or becomes void. This was a case where contract in question became void as a result of its cancellation by order of this Court dated 26-9-2012 which entitled the applicants to seek restitution of the money paid to the State for purchase of stamp papers." (emphasis supplied)
42. The Court in Committee-GFIL ( 9 supra) went on to observe that bonafide claim of petitioner cannot be rejected on technical grounds . It held:
"28. ... then the applicants, in our opinion, are entitled to claim the refund of the entire amount of stamp duty from the State Government which they spent in purchasing the stamp papers for execution of sale deed in relation to the properties in question. Indeed in the light of six reasons set out supra which, in our considered opinion, in clear terms attract the principle contained in the aforesaid maxim, the State has no right to defend the order of the SDM for retaining the amount of stamp duty paid by the applicants with them. The applicants' bona fide 17 MSR,J & TA,J wp_27987_2019 genuine claim of refund cannot be denied on such technical grounds.
29. This case reminds us of the observations made by M.C. Chagla, C.J. in Firm Kaluram Sitaram v. Dominion of India10. The learned Chief Justice in his distinctive style of writing observed as under in para 19: (Firm Kaluram case, SCC OnLine Bom) "19. ... we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person."
We are in respectful agreement with the aforementioned observations, as in our considered opinion these observations apply fully to the case in hand against the State because except the plea of limitation, the State has no case to defend their action."
43. Similar view was also taken in Urban Improvement Trust, Bikaner vs. Mohan Lal11 . It declared:
"5. ... ... Statutory authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and high-handed manner. They can not behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.10
AIR 1954 BOMBAY 50 11 (2010) 1 SCC 512 18 MSR,J & TA,J wp_27987_2019
6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice.
We may refer to some of the decisions in this behalf.
7. In Dilbagh Rai Jarry v. Union of India12 this Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case13):
"25. ... '5. ... The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The layout on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.' "
8. In Madras Port Trust v. Hymanshu International14 this Court held: (SCC p. 177, para 2) 12 (1974) 3 SCC 554 13 AIR 1972 KERALA 103 14 1979 (4) SCC 176 19 MSR,J & TA,J wp_27987_2019 "2. ... It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable."
9. In a three-Judge Bench judgment of Bhag Singh v. UT of Chandigarh15 this Court held: (SCC p. 741, para 3) "3. ... The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen."
10. Unwarranted litigation by Governments and statutory authorities basically stems from the two general baseless assumptions by their officers. They are:
(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision-making, or worse, of improper motives for any decision- making. Unless their insecurity and fear is addressed, officers will 15 1985 (3) SCC 737 20 MSR,J & TA,J wp_27987_2019 continue to pass on the responsibility of decision-making to courts and tribunals."(emphasis supplied)
44. These observations aptly get attracted to the instant case and bonafide claims of the petitioner cannot be defeated by the respondent by raising hyper technical pleas.
45. So, the instant Writ petition can be entertained and relief can be granted to the petitioner notwithstanding the decisions cited by the respondent, since there are no disputed questions of fact, and the respondent, in our opinion, has raised a technical plea of existence of alternative remedy only to drive the petitioner to a lengthy, dilatory and expensive process i.e., remedy under Sec.17 of the Act and further appeals therunder.
46. We are also of the opinion that since the petitioner, in his first demand notice dt.22.12.2018 sought from the respondent interest at 12% p.a, he is entitled to the same on Rs.2,16,81,000/- from the dates on which he deposited the sale consideration till 4.7.2018 when Rs.2,16,81,000/- was refunded to him.
47. Accordingly the Writ Petition is allowed and the respondent is directed to pay interest to the petitioner within 4 weeks from the date of receipt of copy of this order at 12% p.a on Rs.2,16,81,000/- from the dates on which he deposited the sale consideration till 4.7.2018 when Rs.2,16,81,000/- was refunded to him. No costs.
21 MSR,J & TA,J wp_27987_2019
48. As a sequel, miscellaneous petitions pending if any, in this Writ Petition, shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ T.AMARNATH GOUD, J Date: 27.04.2020 SVV/NDR/VSV Note: L.R. copies to be marked.
B/o Svv