Gujarat High Court
Jadar Vibhagiya Cooperative Gin Mill ... vs Manager & Ors on 12 February, 2013
Author: A.J.Desai
Bench: A.J.Desai
JADAR VIBHAGIYA COOPERATIVE GIN MILL LTD....Petitioner(s)V/SMANAGER C/SCA/1404/2009 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1404 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ JADAR VIBHAGIYA COOPERATIVE GIN MILL LTD Versus MANAGER & ORS ================================================================ Appearance:
MR.
G.M. AMIN ADVOCATE WITH DG CHAUHAN, ADVOCATE For the Petitioner MR JAYANT P BHATT, ADVOCATE for Respondents No. 1 & 2 MR MANISH S SHAH, ADVOCATE for the Respondent No. 3 MRS HANSA PUNAN, AGP the Respondent No. 4 =========================================================== CORAM:
HONOURABLE MR.JUSTICE A.J.DESAI Date : 12/02/2013 CAV JUDGEMNT 1 By way of the present petition under Articles 14, 19 and 226 of the Constitution of India as well as under the provisions of the Agriculture Produce Market Committee Act, 1963 and the Agriculture Produce Market Committee Rules, 1965 framed thereunder, the petitioner Jadar Vibhagiya Cooperative Gin Mill Limited, through its Secretary, has prayed for issuance of an appropriate writ, order or direction calling upon the respondent Dena Bank which is a nationalized bank, to release the amount of Fixed Deposit lying in the name of the petitioner, deposited by the petitioner pursuant to the interim orders passed by this Court in Special Civil Application No.1463 of 2001. Since the said petition has been finally disposed by this Court way back on 15.11.2005, on the first date of hearing of the present petition i.e. 18.2.2009, an order was passed by this Court (Coram: K.A. Puj, as His Lordship then was) whereby the petitioner was permitted to join Agriculture Produce Market Committee, Market Yard, Idar as respondent No. 3 (hereinafter referred to as the Market Committee for short) since the concerned APMC was a party in Special Civil Application No. 1463 of 2001 in which interim orders were passed and pursuant thereto, the amount was deposited by the petitioner with the respondent- Dena Bank in the Fixed Deposit. After considering the affidavit-in-reply filed by the respondent1 No. 1 and 2 Dena Bank Rule nisi was issued by this Court (Coram: M.R. Shah, J.) on 2.8.2010 and the matter was kept for hearing.
2 The brief facts arising from the case are as under:
2.1 That the petitioner is a society registered under the provisions of the Gujarat Cooperative Societies Act, 1961 and is engaged in pulling cotton i.e. collecting cotton from its members and sending it to the Sabarkantha Cotton Union (hereinafter shall be referred as the Union for short) and the Union, in turn, sells the said goods to different traders in the entire country.
2.2 That respondent No.3 is an Agricultural Produce Market Committee, having its area of operation in Idar Taluka and having sub market committee at Idar. The respondent No.3 Market Committee demanded market cess from the petitioner and the petitioner society was of the opinion that in the market area, no sales and purchase are being taken place and the said society collects cotton from its members and sends it to the Union and therefore, they are not liable to pay the market cess and, therefore, the petitioner society preferred Special Civil Application No.1463 of 2001 challenging the demand of market cess by the respondent No.1 Market Committee from the petitioner and at the relevant time some other Special Civil Applications and Letters Patent Appeals were also pending. The aforesaid Special Civil Application came up for admission hearing and for interim relief before the learned Single Judge of this Court and following order came to be passed by the learned Judge (Coram : P.K. Sarkar, J. as His Lordship then was) in Special Civil Application No.1463 of 2001 on 3/5/2001:
I have heard Mr.G.M.Amin, learned Counsel appearing on behalf of the petitioner. Issue Rule. Mr.H.P.Raval, learned Counsel appearing on behalf of the respondent No.1, Agricultural Produce Market Committee, waives service of rule. Ms.Nandini Joshi, learned AGP is directed to accept service of rule on behalf of the State Government. In addition, the petitioner will make service of rule on the respondent State.
Mr.G.M.Amin, learned Counsel appearing on behalf of the petitioner submits that the Agricultural Produce Market Committee, Idar, Dist. Sabarkantha, is illegally demanding market cess from the petitioner and it is also submitted by the learned Counsel that in the market area no sale or purchase are being taken place. The petitioner is a society and the members are agriculturist growing agricultural crops and mainly cotton. It is an admitted fact that the members of the Cooperative Society who are the farmers are taking the cotton in the notified market area and ginning the same, resulting into, the separation of seeds and cotton and thereafter they give it to the petitioner society, who, in turn, transfers the goods to the Federation. The learned Counsel for the petitioner accordingly submits that over this issue there were litigations and out of one such litigation, an L.P.A. has been registered as No.589/2000. It is submitted by the learned Counsel that no interim order has been passed by the Division Bench, nor any interim order has been passed by any of the Civil Bench.
Mr.H.P.Raval, learned Counsel, appearing on behalf of the respondent No.1, draws my attention to the judgment passed by this Court on 11-2-2000 in C.A. No.6351 of 1988 and other group matters. In the said judgment, this Court held that in such cases of sale and purchase, the Market Committee is entitled to levy and collect fees. In view of the judgment, I am of the view that no interim relief can be granted as prayed by the petitioner. Mr.Raval further submits that the Director of Agricultural Produce Market Committee passed an order on 18-2-2000, exempting the payment of cess from such transactions. However, the Director later by his letter dated 16-5-2000 issued a direction to the petitioner to deposit the cess under protest. In pursuance of the order of the Director, the respondents are demanding the cess from the petitioner. It is submitted by Mr.Raval that unless the respondents are allowed to collect the fees, in future there may not be any scope to levy any cess on the products, which, otherwise, will be transferred from the market area and there will not be any account of such products.
Having regard to the submissions of the learned Counsel for both the parties, I am of the view that no interim order can be passed as prayed by the petitioner. The petitioner may deposit the amount of levy in a separate account and the amount of levy to be deposited shall be on the basis of the last payment of cess made by the petitioner. After deposit in a separate account, the petitioner will furnish a statement before this Court. Since the learned Counsel for the petitioner has made the statement that he will direct the petitioner to deposit the amount of levy in a separate account, it is expected that, the respondents will not adopt any coercive method for realising the cess. List this matter on 26-6-2001.
2.3 That thereafter the petitioner society started depositing the said amount of cess in a separate account in Dena Bank by maintaining a separate account. In view of the above, the respondent No.3 Market Committee did not adopt any coercive method for realizing cess. That thereafter, L.P.A. No.589 of 2000 came to be dismissed by the Division Bench vide order dated 10.12.2001. That thereafter the respondent No.3 market committee preferred a Civil Application No.207 of 2002 in aforesaid Special Civil Application 1463 of 2001 praying that the respondent No.3 Market Committee may be permitted to withdraw the amount deposited by the petitioner society in a separate account in pursuance of the order dated 3.5.2001 passed in the aforesaid Special Civil Application and the learned Single Judge vide order date 19.3.2002 permitted the respondent No.3 Market Committee to withdraw the said amount on condition that, if, ultimately the opponent No.1 i.e. present petitioner succeeds in the said petition, the amount withdrawn by the Market Committee shall be returned to the petitioner society with simple interest at the rate of 10% p.a. thereon within six weeks from the date of final pronouncement in the said proceedings and accordingly the petitioner society was directed to withdraw the said amount in question which was deposited with Dena Bank, Jadar Branch and was directed to forward the cheque to the respondent No.1 -
Market Committee within a period of five weeks from 19/3/2002. The learned Single Judge (Coram: A.R. Dave, J. as His Lordship then was) passed the following order on 19/3/2002 in aforesaid Civil Application No.207 of 2002 in Special Civil Application No.1463 of 2001:-
Rule.
Service of rule is waived by learned advocate Shri G.M. Amin for opponent No. 1 and learned AGP Shri K.P. Raval for opponent No. 2.
This application has been filed by original respondent No. 1 in Special Civil Application No. 1463 of 2001 praying that the amount, which has been deposited by opponent No. 1 in a separate account in pursuance of an order dated 3.5.2001 passed in Special Civil Application No. 1463 of 2001, be permitted to be withdrawn by the applicant.
In Special Civil Application No.1463/2001,which has been filed by opponent No. 1, it has been prayed by opponent No. 1 that the present applicant is not entitled to recover any cess from opponent No.1 petitioner. The said petition has been admitted and by an interim order, opponent No.1 was directed to deposit the amount in a separate account.
It is the case of the present applicant i.e. original respondent No. 1 that the applicant is a Market Committee which has to incur expenditure for the purpose of providing facilities to its members and therefore the amount of cess, which has been deposited by opponent No. 1, be permitted to be withdrawn by it.
The learned advocates have been heard at length. Looking to the fact that by an interim order this court has directed opponent No. 1 to deposit the amount and as the amount is lying in a separate account, in my opinion, it would be just and proper to permit the applicant to withdraw the said amount on a condition that, if ultimately opponent No. 1 succeeds in the petition, the amount which has been withdrawn by the applicant shall be returned to opponent No. 1 with simple interest @ 10% thereon. The Chairman and Secretary of the applicant shall file an undertaking to the effect that in the event of opponent No. 1 finally succeeds in Special Civil Application No. 1463/2001, the amount in question shall be returned along with simple interest @ 10% within a period of six weeks from the date of final pronouncement in the said proceedings.
The amount in question has been deposited with Dena Bank, Jadar Branch and opponent No.1 shall withdraw the said amount and shall forward the cheque to the applicant Market Committee within a period of five weeks from today.
The application stands disposed of as allowed. Rule is made absolute with no order as to costs. Direct service permitted.
That it appears that thereafter aforesaid Special Civil Application No.1463 of 2001 along with other Special Civil Applications came up for hearing before the learned Single Judge and nobody remained present on behalf of the petitioner and others and hence the said Special Civil Application No.1463 of 2001 and other Special Civil Applications came to be dismissed for want of prosecution by the learned Single Judge vide order dated.15/11/2005. It appears that thereafter a review application was filed to restore the said Special Civil Application, and the said review application also came to be dismissed, thus, the dismissal of the aforesaid Special Civil Application No. 1463 of 2001 continued. It appears that even the petitioner society did not act as per the order passed by the learned Single Judge in Civil Application No. 207 of 2002 in Special Civil Application 1463 of 2001 withdrawing the amount of cess deposited with Dena Bank and did not forward the cheque to the respondent No.3 Market Committee and, therefore, the amount of cess deposited by the petitioner continued in Dena Bank, Jadar Branch.
2.5 That thereafter in view of the dismissal of the aforesaid Special Civil Application No.1463 of 2001, the respondent No.3 Market Committee initiated proceedings to recover the said amount of cess and to withdraw the same from Dena Bank, Jadar Branch by filing Special Execution Application No.01 of 2008 in the court of learned Civil Judge (SD), Idar to recover, in all,l Rs.39,03,533/-
and the learned Civil Judge (SD), Idar, entertained the said Execution Application and issued notice upon the respondent No.3 Market Committee and in the said Execution Application, petitioner appeared before the executing court and filed reply, inter-alia, submitting that such an execution petition is not maintainable inasmuch as no decree has been passed which is sought to be executed and even no final order came to be passed by this Court in Special Civil Application No.91463 of 2001 and therefore, it was requested to dismiss the said Execution petition. The learned Executing Court passed an order dated 1.8.2008 below application Exhibit-1 in Special Execution Petition No.1 of 2008 holding that the order passed by this Court in Special Civil Application No.1463 of 2001 can be executed as if it is a decree and, therefore, the said execution petition is maintainable. That thereafter, an application was submitted by the respondent No.3 Market Committee directing Dena Bank, Jadar Branch, to transmit the said amount to the Civil Court and accordingly by order dated 18.8.2008 the learned Civil Judge, Idar, passed order in order to relieve the Dena Bank from the liability in exercise of the powers conferred under Order 21 Rule 46A of the Code of Civil Procedure directing the Dena Bank, Jadar Branch, to transmit the amount of Rs.21 lacs together with interest and the learned trial court further passed an order that the same be taken in the account of the Civil Court and retained as such till further orders.
2.6 That being aggrieved by and dissatisfied with the orders passed below Applications Exhibit-1 and Exhibit-5 dated 1.8.2008 and 18.8.2008,the petitioner had preferred one Special Civil Application No.10628 of 2008 under Articles 226 and 227 of the Constitution of India, which came to be dismissed by this Court by Order dated 26.8.2008.
2.7 The petitioner had challenged the said decision dated 26.8.2008 before the Division Bench of this Court by way of preferring a Letters Patel Appeal No.945 of 2008 under Clause-15 of the Letters Patent and submitted that since the petition which was preferred by the petitioner Cooperative Society itself was dismissed, the interim orders passed in the said proceedings would merge in the final order and, therefore, in absence of any order, the Trial Court ought not to have issued a garnishee order or any order which would indirectly permitting the Market Committee, Idar, to encash the Fixed Deposit, which was lying with the respondent Bank pursuant to the interim orders passed by this Court. The said Letters Patent Appeal was accepted by the Division Bench vide order dated 20.11.2008. The said order reads as under:
Special Civil Application No.10628 of 2008 was preferred by the appellant seeking an order to stay execution, implementation and operation of the order dated 01.08.2008 passed by the learned Civil Judge (S.D.), Idar in Special Execution Application No.1 of 2008. Learned Single Judge found no reason to grant the relief as prayed for and dismissed the Special Civil Application, against which, this Letters Patent Appeal has been preferred.
It is evident from the order dated 01.08.2008 that what was sought to be enforced was an interim order passed by the learned Single Judge on 03.05.2001 in Special Civil Application No.1463 of 2001 filed by the appellant society. In that petition, Civil Application No.207 of 2002 was filed by respondent Agricultural Produce Market Committee wherein an interim order was passed directing the appellant herein to deposit certain amounts which was not done. Later, main petition filed by the appellant was dismissed by the Court on 15.11.2005. Misc.
Civil Application No.1852 of 2006 also dismissed for default on 02.02.2007. We are of the opinion that since Special Civil Application as well as Appeal was disposed of without deciding the matter on merits, the interim order passed in Special Civil Application No.1463 of 2001 had also lost its effect.
Though, Special Civil Application No.1463 of 2001 was dismissed, respondent therein now seeks to enforce interim order passed by this Court in a dismissed petition. We are of the view that if the respondent in Special Civil Application No.1463 of 2001 wanted to pursue that interim order dated 03.05.2001, application should not have been allowed to be disposed of as dismissed for default. The only remedy open to the respondent in Special Civil Application No.1463 of 2001 was to enforce his claim in independent proceedings and not through an execution proceedings before the Civil Court and not through the interim order passed by this Court in a dismissed petition. We, therefore, find force in the contention raised by the appellant. In such a situation, we are inclined to allow this appeal and also quash the order passed by the Court below on 01.08.2008. If the respondent is so advised, he may independently establish his claim before appropriate forum.
2.8 That since it was observed in the aforesaid order of the Division Bench that Market Committee can enforce its claim in an independent proceedings before the Civil Court and not through interim orders passed by this Court in a dismissed petition, the present petitioner served a legal notice to the respondent Bank on 17.12.2008 and called upon the Bank to release the Fixed Deposit which was invested with respondent Bank in the name of the petitioner itself. The said notice was replied by the respondent Bank through its Lawyer on 26.12.2008 and the petitioner was informed that as and when appropriate orders are passed by the High Court, they shall release the Fixed Deposit amount without any delay.
2.9 Since the respondent Bank has refused to release the Fixed Deposit, it is the case of the petitioner that they have no other alternative remedy but to file the present writ petition under Article 226 of the Constitution since the respondent-Bank.
2.10 That the respondent Bank has filed its Affidavit-in-reply through its Manager on 22.6.2010 and has reiterated that since the amount invested with the Bank pursuant to the orders of the Court, the Bank has not released the amount, however, the same shall be released if this Court so direct.
2.11 That the Market Committee has also filed its affidavit-in-reply on 31.3.2009 as well as an additional affidavit through it s Secretary and has produced several communications, etc on record and has opposed granting of any relief in favour of the petitioner.
3 Heard learned Advocate Mr. G.M. Amin with Mr. D.G. Chauhan, learned Advocate for the petitioner, Mr. Jayant P Bhatt, learned Advocate for the respondents No. 1 and 2, Mr. Manish S. Bhatt, learned Advocate for the respondent No.3 and Mrs. Hansa B. Punani, learned AGP, for the respondent No. 4 State of Gujarat.
4 The first contention raised by Mr. Amin, learned Advocate, for the petitioner
- Society is that when the writ petition being Special Civil Application No. 1463 of 2001 is dismissed on whatever ground, any interim passed therein, would merge in the final order. The dispute with regard to levy of `cess by the Market Committee which was raised in the said Special Civil Application, did not remain in existence on 15.11.2005 when the said petition was dismissed. There was no adjudication by the Court with regard to the dispute about the cess and, therefore when the amount of cess which was deposited by the petitioner society pursuant to the interim order, cannot be made applicable or operated against the petitioner. He further submitted that as per the interim order dated 3.5.2001 passed in Special Civil Application No. 1463 of 2001, the cess was deposited in a separate account. He further submitted that when Civil Application No. 207 of 2002 was filed by the APMC, observations were made by this Court that if the present petitioner succeeds in the petition, the amount which was required to be paid to the APMC, shall be returned along with simple interest @10% thereon to the petitioner Co-operative Society. Therefore, he submitted, that since there was no final adjudication upon the dispute with regard to the cess, the respondent Dena Bank ought not to have withheld the amount and was bound to pay the amount back to the petitioner society which was kept in the Fixed Deposit in the name of the petitioner. In support of his submission, he has relied upon a decision of the Supreme Court in the case of Jaipur Municipal Corporation vs. C.L. Mishra, as reported in (2005) 8 SCC 423 as well as in the case of Kanwar Singh Saini vs. High Court of Delhi, as reported in (2012) SCC 307. By relying upon these two decisions, it was argued that , though, in these two cases, the proceedings were launched under the Civil Procedure Code and the disputes in the civil suits were under consideration, the Apex Court has held that the interim orders would operate or survive till the final order. At the time of final order or disposal of the matter, interim orders would merge in the final order and would cease to be operative in that case. He therefore submitted that the same principle would be applicable in writ petitions which are filed before the High Court.
4.1 Mr. Amin, learned Advocate for the petitioner society further submitted that when there are no orders in existence which prohibits the respondent Dena Bank to release the amount of Fixed Deposit, under the Banking Regulations Act, 1949, the respondent Bank is bound to release the amount in favour of a person, in whose name, the amount is invested. There is contractual obligation on the part of the Bank, being one of the contractual parties, to act in accordance with the law. In the present case, though, the Bank was informed by the petitioner vide a detailed Notice dated 17.12.2008, it was the duty of the respondent Bank to release the amount in favour of the petitioner. In support of his submission, he has relied upon decisions of the Apex Court in the case of Senati Prasad vs. Director of Enforcement, as reported in AIR 1062 SC 1764; in the case of United Commercial Bank Limited vs. Okara Gramin Buyers Syndicate Limited and Anr., as reported in AIR 1968 and in the case of Bokaro Steel Employees Co-operative House Construction Society Limited vs. State of Jharkhand & Ors., as reported in AIR 2009 Jharkhand, 39. By relying upon these decisions, it was argued that the period of Fixed Deposit was initially for one year, which was time and again extended, the Bank has under obligation to fulfill it s obligation as per the contract being a banker with its customer/depositor. He further submitted that the amount along with the interest accrued thereon was re-invested by the respondent Dena Bank itself on 11.11.2008, again for a period of one year. Since the period of Fixed Deposit had already been expired, it was the duty of the respondent Dena Bank to release the amount in favour of the petitioner.
4.2 Mr. Amin, learned Advocate for the petitioner society has lastly argued that under Section 45ZB and 45ZD of the Banking Regulation Act, 1949, the respondent Dena Bank ought not to have accepted the objections raised by the APMC against the release of payment of Fixed Deposit to the petitioner.
5 On the other hand, learned Advocate Mr. Jayant P. Bhatt, appearing for and on behalf of the respondents No. 1 and 2 Dena Bank, has submitted that the Bank has invested the amount for a period of fixed term pursuant to the orders passed by this Court in Special Civil Application No. 1463 of 2001 and in absence of any specific order from the High Court, the Bank thought it fit not to release the amount in favour of the petitioner. Mr. Bhatt further submitted that Sections 45ZB and 45ZD of the Banking Regulation Act, 1949, itself provide that the Bank is bound to take due note of the order passed by the court. In the present case, the petitioner society had not come forward to deposit the amount on its own, but pursuant to the orders passed by this Court in Special Civil Application No. 1463 of 2001, the amount was invested with the respondent Bank for a period of fixed term. He further submitted that there was no specific directions to re-invest the same, but, the respondent Bank thought it fit to renew the same, so that, at the end of litigation, any of the parties of the petition, may not suffer by getting less amount of interest. He further submitted that the respondent Bank shall obey the orders passed by the Court and release the amount in whose favour the final orders are passed.
6 Mr. Manish S. Shah, learned Advocate, appearing for the respondent No.3- APMC, has vehemently opposed this petition and submitted that when the first interim order was passed on 3.5.2001, it was categorically observed that it was not a case of grant of interim relief in favour of the present petitioner. It was observed that the present petitioner society can deposit the amount of cess on the basis of last payment of cess made by the petitioner which was required to be kept in a separate account and accordingly, the amount was deposited by the petitioner- society. It was further argued that against the interim order passed, the Letters Patent Appeal filed by the present petitioner was dismissed on 10.12.2001.
6.1 Mr. Shah further submitted that the respondent No.3 APMC filed Civil Application No. 207 of 2002 during the pendency of the Special Civil Application No. 1463 of 2001 for withdrawal of the amount which was lying with the Dena Bank. The said application was allowed and the present petitioner was directed to withdraw the amount from the Bank and the said amount to be paid to the APMC. The said application was, thus, allowed in favour of the APMC. He further submitted that when specific order was passed for payment of amount of cess, now, the petitioner cannot claim the said amount under the guise of dismissal of its own writ petition. In background of these facts, he submitted that, if, by any interim relief, undeserved benefit is obtained by a party, the court is under obligation to undo the wrong done to party by act of Court if his petition is dismissed. In support of his submission, he has relied upon a decision of the Apex Court in the case of Amarjeet Singh & Ors. vs. Devi Ratan & Ors., as reported in AIR 2010 SC 3676.
Mr. Shah further relied upon the provisions of Section 144 of the Code of Civil Procedure, 1908, and submitted that at the end of any proceedings, if, any interim order is upheld or reversed at the time of final disposal, restitution is required to be made by passing appropriate orders in the matter. In support of his contention, he has relied upon a decision of the Apex Court in the case of Karnataka Rare Earth & Anr. vs. Senior Geologist, Department of Mines & Geology and Anr., as reported in (2004) 2 SCC 783 and submitted that when on account of an act of the party, persuading the court to pass an order, which at the end, is held as not sustainable, has resulted into one party gaining an advantage, which it would not have otherwise earned, the party who is successful, is required to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed.
Mr, Shah, by relying upon a decision of the Apex Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania, as reported at AIR 2010 SC 3745, submitted that it is the settled proposition of law that the court cannot be used only for interim relief. It is not permissible for a party to file a writ petition, obtaining certain orders during the pendency of the petition and withdraw the same without getting proper adjudication of the issue involved therein and insist that the benefits of the interim orders or consequential orders passed in pursuance of the interim order passed by the writ court would continue. He further submitted that the benefit of the interim relief automatically gets withdrawn/neutralized on withdrawal of the said petition.
In support of his submission with regard to Section 144 of the Civil Procedure Code, by relying upon a judgment of the Supreme Court in the case of State of Gujarat & Ors. vs. Essar Oil Limited & Anr., as reported at AIR 2012 SC 1146, Mr. Shah submitted that if a party gets benefit pursuant to any interim order and at the end of hearing if he fails, then, the court has to restore the parties as far as possible to their same position as they were at the time when the interim orders were passed by the court. As per his submission, the petitioner did not argue its case by not remaining present and, therefore, the petition was dismissed and, therefore, the court is required to restore the parties at the same position which were there when the interim orders were passed by this Court in Special Civil Application No.1463 of 2001.
7 Having heard learned Advocates appearing for the parties and perusing the material on record produced by each of the parties, certain facts emerges on record as under:
7.1 It is an undisputed fact that by way of Special Civil Application No.1463 of 2001, the present petitioner had challenged a notice issued by APMC demanding market fees on the ground that the APMC had no authority to levy such fees/cess from the petitioner- cooperative society.
7.2 Pursuant to the interim order dated 3.5.2001, the petitioner society did deposit the cess with the respondent Dena Bank. A prayer made by the APMC for the payment of the said amount was accepted by this Court vide Order dated 19.3.2002 passed in Civil Application No. 207 of 2002 which was filed in Special Civil Application No. 1463 of 2001. By reading the said order, which is reproduced in earlier part of the order, it is clear that since the amount was lying with the Dena Bank in the name of the present petitioner, the petitioner was directed to withdraw the said amount from the respondent Bank and to pay the same to the APMC subject to the conditions referred to in the said order. It is an admitted position that neither the present petitioner withdrew the said amount from the respondent- Dena Bank nor paid to the APMC. It is equally true that after passing the order on 19.3.2002, till the dismissal of the petition in 2005, the APMC has not filed any type of application including application under the provisions of the Contempt for not obeying the orders passed by this Court in Civil Application No. 207 of 2002. In absence of compliance of the order, in my opinion, the respondent Bank has rightly renewed the deposit in the name of the petitioner itself. When the interim order which is heavily relied by the APMC, has never been implemented, the effect of the said order vanished when the main petition itself was dismissed. No transaction has been taken place after the disposal of the Civil Application No. 207 of 2002 in accordance with the order dated 19.3.2002 passed thereon. In the case of Jaipur Municipal Corporation vs. C.L. Mishra (supra), the Apex Court, after considering the facts of the said case, held that the interim order passed in a case would, ultimately, get merged with the final order. In that case, all interim directions issued, a party tried to get review of the interim order, which was already disposed of, and in that case, the Apex Court held that there is no independent existence of any interim order which has already been disposed of.
In the case of Kanwar Singh Saini vs. High Court of Delhi (supra) while dealing with the provisions of Order 39 (2)(a) of the Civil Procedure Code, it has been held that once a suit is finally disposed of, the interim order, if any, merges into final order. It was further held that if the case is, ultimately, dismissed, the interim orders were stand nullified automatically. In the present case, when there is no implementation of the interim order and when the petition is dismissed without any adjudication with regard to the issue involved in the matter, I am of the opinion that the interim order merges with the final order.
7.4 With regard to the action taken by the APMC filing of an Execution Application before the Trial Court and having orders in favour of APMC, the Division Bench of this Court passed an Order dated 20.11.2008 in Letters Patent Appeal No.945 of 2008 by which the appeal filed by the present petitioner was allowed and quashed and set aside the Order dated 1.8.2008 passed by the Trial Court in Special Execution Petition No.1of 2008 as well quashed the order dated 26.8.2008 passed by learned Single Judge in Special Civil Application No.10628 of 2008 by which petition filed by the present petitioner challenging the order dated 1.8.2008 was dismissed. While disposing of the Appeal, Division Bench further observed that, if, the respondent-APMC is so advised, it may independently establish its right before appropriate forum. In the said order, which is reproduced in the earlier part of this judgment, it is apparent that the Division Bench has specifically observed that an interim order in a dismissed petition cannot be executed and the only remedy open for the APMC was to enforce its claim by independent proceedings and not through an Execution Proceedings before the Civil Court. It has been specifically observed in the said order by the Division Bench that without deciding the matter on merits, the interim order passed in Special Civil Application No. 1463 of 2001 had also lost its effect.
8 Considering the overall factual matrix of the present case, when the Division Bench of this Court has specifically observed that, whatever, interim orders passed in Special Civil Application No.1463 of 2001, had lost its effect way back in 2005, that too, which includes the order passed in Civil Application No.207 of 2002, I am bound by the same and, therefore, I hereby hold that all interim orders passed in Special Civil Application No.1463 of 2001 had merged in the Order dated 15.11.2005, by which Special Civil Application No.1463 of 2001 was dismissed.
9 The next contention raised is with regard to Section- 144 of the Code of Civil Procedure, 1908 is concerned, to appreciate the same, Section -144 is reproduced hereunder:
144.
Application for restitution (1) Where and in so far as a decree (or an order) is varied or reserved in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled in any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed , set aside or modified, and , for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mes ne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.
[Explanation For the purpose of sub-section (1), the expression Court which passed the decree or order shall be deemed to include --
(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;
(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;
(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.
No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).
9.1 The Section itself is very clear that filing/submission of an application of a party, which claims that he is entitled to a benefit by way of restitution or otherwise, is necessary and that too in the same proceedings. In the present case, it is an admitted position that when the said Special Civil Application No.1463 of 2001 was dismissed, learned Advocate appearing for the APMC did not remain present. When the review application was filed by the present petitioner, again, learned Advocate appearing for the APMC did not remain present. If the APMC was interested of any benefit pursuant to any interim order with regard to the restitution, in my opinion, it was the duty of the APMC to bring to the notice of the Court about the interim orders passed in the matter and has to establish how to restitute the same. The record does not show that the APMC had filed any application seeking appropriate orders with regard to the amount lying with the respondent Dena Bank. No action, whatever, has been taken by the APMC under the provisions of Section-144 of the Code till today for the benefit by way of restitution. The judgment relied upon by the learned Advocate Mr. Shah for the APMC makes it very clear that the person has to apply for the same and only in such case the court has to pass necessary orders in accordance with law.
10 Apart from the above facts, in the present petition, I am not considering the case with regard to benefit which the APMC is trying to establish which it gained pursuant to the interim orders passed in a dismissed petition. Since the petition is filed by the depositor i.e petitioner - society and in absence of any type of adjudication with regard to the dispute involved in Special Civil Application No. 1463 of 2001, I cannot decide the issue and I am not deciding the same in detail.
11 It is also equally true that after the dismissal of the petition filed by the petitioner in 2005, the APMC had tried to execute the interim orders by getting the money deposited by the petitioner society with the Bank by filing an Execution Application, however, ultimately failed when the Letters Patent Appeal No.945 of 2008 filed by the petitioner was allowed by the Division Bench of this Court and specifically observed about the rights and remedy of the APMC.
12. I am in agreement with the judgment relied upon by the learned Advocate for the petitioner Society with regard to the Banking Regulations Act and accept that there was a contractual obligation on the part of the respondents Dena Bank to return the money to the petitioner society and particularly when no proceedings were pending before any of the Court and when the Division Bench of this Court had specifically observed that the interim orders had already lost its effect when the Special Civil Application No. 1463 of 2001 was dismissed.
13 In view of the above discussion, the present petition deserves to be allowed and is allowed accordingly. The respondents No.1 and 2 Dena Bank is directed to release the amount deposited by the petitioner society along with the accrued interest thereon to the petitioner forthwith. Rule is made absolute. There shall be no order as to costs.
(A.J. DESAI, J.) pnnair Date:
12.2.2013 14 After pronouncement of the judgment, Mr. Manish S. Shah, learned Advocate, appearing for the respondent No. 3 requested to stay the operation of the present order by which the respondents No. 1 and 2 -Dena Bank is directed to release the amount deposited by the petitioner -scoiety along with the accured interest thereon in favour of the petitoiner.
15 Considering the facts and circumstances of the case and since there was no adjudication about the amount lying with the respondents No.1 and 2 Dena Bank by any of the decisions which are referred to here-in-above, the request is refused.
16 Direct Service is permitted.
(A.J. DESAI, J.) pnnair Page 30 of 30