Uttarakhand High Court
Himanshu Verma vs Almora Urban Co-Operative on 28 March, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 530 of 2022
Himanshu Verma ... Petitioner
Vs.
Almora Urban Co-operative
Bank Ltd. and others ... Respondents
Advocates : Mr. Pradeep Chamyal, Advocate, for the petitioner
Mr. Suyash Pant, Standing Counsel, for the State.
Ms. Pooja Tiwari, Advocate, for the respondents.
Hon'ble Sharad Kumar Sharma, J.
Brief facts of the case are that in 2007, the petitioner took a loan of Rs. 30.00 lakh, from the respondent secured creditor. But, on account of the default having being committed, the bank had proceeded to take an action on 27.07.2013, by forfeiting the security deposit which had been made by the petitioner and for taking an action for the recovery of the amount, allegedly due as in 2013. The petitioner did not honoured the defaulted amount by depositing the same, consequently, the first recovery citation was issued against the petitioner on 21.11.2015, proposing to recover an amount, as an arrears of land revenue of Rs. 23,92,816.54. Challenging the said recovery citation, the petitioner approached before this Court by filing a writ petition being Writ Petition (M/S) No. 382 of 2018, in which, there was initially an interim order granted on 14.02.2018, but, thereafter, the matter was finally decided by 2 the coordinate Bench of this Court, vide its judgement dated 11.02.2020, whereby certain relaxations were given to the petitioner for the purposes of settlement of the controversy by the competent authority of the respondent bank, subject to fulfilment of certain conditions given in the judgment dated 11.12.2020.
2. The petitioner did not comply with the pre-conditions of deposits, as claimed by the judgment dated 11.12.2020, consequently, the second recovery citation, being that of dated 26.06.2021, was issued against the petitioner, for recovering the amount, due against the petitioner.
3. Admittedly, as against the aforesaid second recovery proceedings, which has been resorted to for the purposes of redressal of his grievances, admittedly a proceeding under Section 71 of the Uttarakhand Cooperative Societies Act, was drawn before the Uttarakhand Cooperative Tribunal, which was numbered as Miscellaneous Case No. 4 of 2015. The Uttarakhand Cooperative Tribunal, ultimately had dismissed the proceedings under Section 71 of the Act, with regards to second stage of recovery, which has been sought to be made by issuance of recovery citation dated 22.06.2021, for an amount of Rs. 28,07,792.54, which was then assessed due to be paid.
4. In fact, thereafter, the petitioner had once again approached the writ Court by filing a second writ petition being, Writ Petition No. 1619 of 2021, which was dismissed 3 as withdrawn by the petitioner vide judgment dated 16.08.2021, and consequently, the action was taken against the petitioner for the third time by issuance of the third recovery citation i.e. impugned in the present writ petition i.e. dated 07.03.2022, this action of recovery was nothing but a consequential action was taken as a result of non-compliance of the initial judgment dated 11.12.2020, rendered in Writ Petition (M/S) No. 382 of 2018, for non compliance of the conditions adjudicated by the learned Uttarakhand Cooperative Tribunal, under Section 71 of the Act, by way of Miscellaneous Case No. 4 of 2015, filing the present successive third writ petition, challenging the recovery citation in the light of the adjudication which was already made by the judgments dated 11.12.2020 and 16.08.2021, in fact, the petitioner's present action of filing of the third writ petition, would be barred by res-judicata, as the petitioner had been simultaneously and recurringly invoking the writ jurisdiction with regards to the same recovery process which stood initiated, as back as on 21.11.2015, by issuance of recovery citation, which has been consistently defaulted by the petitioner to be paid to the secured creditor and hence, the third writ petition, which has been preferred against the recovery citation for recovering the amount of Rs. 28,07,792.59, as of now due to be recovered from the petitioner, as apparent from the recovery citation, this Court is of the view that :-
(i) The technicalities of argument, which the petitioner is raising now that the amount, which has been sought to be recovered, cannot be recovered as an arrears of land revenue;4
since it was not being taken over under a state sponsored scheme, in fact, this pea of the petitioner would not be available to him now because he himself has solicited the judgment dated 11.12.2020, which was rendered in WPMS No. 382 of 2018, where certain adjustments of the amount which was due to be recovered was made against the petitioner, which was not honoured by him.
(ii) Secondly, when he preferred the earlier two writ petitions being Writ Petition No. 1619 of 2021, this plea was neither ever agitated nor pressed by the petitioner at any stage, when he got the writ petition dismissed as withdrawn on 16.08.2021. Hence, the petitioner would now be estopped to raise this new plea for the first time which was not agitated by him at any stage even at the stage of Section 71 when Miscellaneous Case No. 4 of 2015, was being decided against the petitioner by the Uttarakhand Cooperative Tribunal.
5. In that eventuality, by filing the third writ petitions, the petitioner cannot take the liberty to raise a new question and plea altogether, which he himself waived off to be argued earlier when he preferred the writ petitions, as it has been recently laid down by the Hon'ble Apex Court in a judgment as decided in Civil Appeal Nos. 2055-2056 of 2022, Premlata @ Sunita Vs. Naseeb Bee & Others, wherein the Hon'le Apex Court has laid down that the litigant, when he has stepped into a different phases of litigation, he cannot take a contradictory or a distinct stand for challenging an action, which otherwise, is barred to be taken by him in view of the principles of res-judicata due to the dismissal of earlier 5 two writ petitions. The relevant paragraph the above said judgment is extracted hereunder:-
"4. At the outset, it is required to be noted and it is not in dispute that the plaintiff instituted the proceedings before the Revenue Authority under Section 250 of the MPLRC. These very defendants raised an objection before the Revenue Authority that the Revenue Authority has no jurisdiction to deal with the matter. The Tehsildar accepted the said objection and dismissed the application under Section 250 of the MPLRC by holding that as the dispute is with respect to title the Revenue Authority would not have any jurisdiction under MPLRC. The said order passed by the Tehsildar has been affirmed by the Appellate Authority (of course during the pendency of the revision application before the High Court). That after the Tehsildar passed an order rejecting the application under Section 250 of the MPLRC on the ground that the Revenue Authority would have no jurisdiction, which was on the objection raised by the respondents herein - original defendants, the plaintiff instituted a suit before the Civil Court. Before the Civil Court the respondents - original defendants just took a contrary stand than which was taken by them before the Revenue Authority and before the Civil Court the respondents took the objection that the Civil Court would have no jurisdiction to entertain the suit. The respondents - original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tehsildar and the proceedings under Section 250 of the MPLRC came to be dismissed and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents - original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC. If the submission on behalf of the respondents - defendants is accepted in that case the original plaintiff would be remediless. The High Court has not at all appreciated the fact that when the appellant - original plaintiff approached the Revenue Authority/Tehsildar he was nonsuited on the ground that Revenue Authority/Tehsildar had no jurisdiction to decide the 6 dispute with respect to title to the suit property. Thereafter when the suit was filed and the respondents defendants took a contrary stand that even the civil suit would be barred. In that case the original plaintiff would be remediless. In any case the respondents - original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority. Therefore, in the facts and circumstances of the case, the learned trial Court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint. The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the MPLRC. The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside."
6. Hence the writ petition lacks merit and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 28.03.2022 Mahinder/