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1 - 10 of 17 (0.25 seconds)The Code of Civil Procedure, 1908
Board Of Control For Cricket, India & Anr vs Netaji Cricket Club & Ors on 10 January, 2005
286) has relied on Board of Control For Cricket In
India and Another v Netaji Cricket Club and Others
(supra) and held:
Bank Of Bihar Ltd vs Damodar Prasad & Anr on 8 August, 1968
17.The Apex Court observed that it is the duty of
the surety to pay the debt, and his rights on such
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payment being effected to the Creditor is in terms
of Section 140 of the Indian Contract Act which
provides that on such payment, he will be
subrogated to the rights of the creditor and he
shall be entitled to recover the entire amount
from the principal debtor. Therefore, it is not
as if the surety is put to any peril. It was on
the assurance of the surety that the creditor
ventured to provide credit to the principal
debtor. When it comes to the point of recovery or
repayment of the said debt, it is open for the
creditor or rather it is the right of the creditor
to seek for realisation of the debt by resorting
to the easiest recoverable mode and against the
security which he considers as the most feasible
one for effecting recovery. At the said point of
time, neither the principal debtor/borrower nor
the guarantor is entitled to dictate to the
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creditor as to the manner in which or as against
which of the securities recovery proceedings are
to be taken by the creditor. It is purely within
the wisdom of the creditor to proceed in the
manner in which he considers as the most suitable.
Taking any other view would be putting the
creditor who granted the loans on the assurance of
repayment, to peril. The very object of securing
guarantee and security would be defeated if the
creditor is asked to postpone his remedies against
the surety. To quote the words of the Apex Court
in Bank of Bihar v. Damodar Prasad (supra):
Rajesh D. Darbar & Ors vs Narasingrao Krishnaji Kulkarni & Ors on 6 August, 2003
"In Rajesh D.Darbar v Narasingrao Krishnaji
Kulkarni this Court noticed:(SCC.p.222,para 4)
The impact of subsequent happenings may now be
spelt out. First, its bearing on the right of action,
second, on the nature of the relief and third, on its
importance to create or destroy substantive rights.
Where the nature of the relief, as originally sought,
has become obsolete or unserviceable or a new
form of relief will be more efficacious on account of
developments subsequent to the suit or even during
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the appellate stage, it is but fair that the relief is
moulded, varied or reshaped in the light of updated
facts."
Lily Thomas, Etc. Etc. vs Union Of India & Ors. on 5 April, 2000
24. As observed by the Apex Court in Lily Thomas v
Union of India (supra) and accepted in Board of
Control For Cricket In India and Another v Netaji
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Cricket Club and Others (supra), justice is a
virtue which transcends all barriers and the rules
or procedures or technicalities of law cannot
stand in the way of administration of justice. If
a mistake, its perpetration of which shall result
in miscarriage of justice nothing would preclude
the court from rectifying the error.
Moran Mar Basselios Catholicos And ... vs The Most Rev. Mar Poulose Athanasius And ... on 21 May, 1954
23. It is true that the power of review is the
creature of a statute and is to be exercised only
within the delineated limits. However, it would
be pertinent to refer to the judgment of the Apex
Court in Board of Control For Cricket In India and
Another v Netaji Cricket Club and Others ([2005] 4
SCC 741) wherein the Apex Court has after
referring to Moran Mar Basselios Catholicos v Most
Rev. Mar Poulose Athanasius (AIR 1954 SC 526),
which emphasises the three specified grounds as
stated above, on which the power of review could
be exercised, proceeded to hold that the said Rule
is not universal.
Patel Narshi Thakershi And Ors. vs Shri Pradyumansinghji Arjunsinghji on 2 March, 1970
"52. The dictionary meaning of the word 'review'
is 'the act of looking, offer something again with a
view to correction or improvement'. It cannot be
denied that the review is the creation of a statute.
This Court in Patel Narshi Thakershi v
Pradyumansinghji Arjunsighji, held that the power
of review is not an inherent power. It must be
conferred by law either specifically or by necessary
implication. The review is also not an appeal in
disguise. It cannot be denied that justice is a
virtue that transcends all barriers and the rules or
procedures or technicalities of law cannot stand in
the way of administration of justice. Law has to
bend before justice. If the Court finds that the
error pointed out in the review petition was under a
mistake and the earlier judgment would not have
been passed but for erroneous assumption which
in fact did not exist and its perpetration shall result
in a miscarriage of justice nothing would preclude
the Court from rectifying the error."
Article 226 in Constitution of India [Constitution]
Jagannath Ganeshram Agarwala vs Shivnarayan Bhagirath on 23 November, 1939
19.In A.P. State Financial Corporation v. M/s.Gar
Re-rolling Mills (AIR 1994 SC 2151), the Apex
Court has held that the defaulter does not have
any legal or even a moral right to object to the
mode of recovery taken by the creditor in
accordance with law. It was held that there is no
equity in favour of a defaulting party which may
justify interference by the courts in exercise of
its equitable extraordinary jurisdiction under
Article 226 of the Constitution of India to assist
it in not repaying its debts. The aim of equity is
to promote honesty and not to frustrate the
legitimate rights of the Corporation (in that case
Financial Corporation) which after advancing the
loan takes steps to recover its dues from the
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defaulting party. If there are several remedies
available for the creditor, it is the choice of
the creditor as to which remedy it is to pursue.
Neither the defaulter nor the guarantor could
compel the creditor to take recourse to any
particular form of remedy or as against particular
security. That falls within the exclusive domain
of the creditor.