IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7532 of 2011 (Arising out of SLP (Civil) No. 30105 of 2010)

Decided On: 30.08.2011

Shiv Cotex
Vs.
Tirgun Auto Plast P. Ltd. and Ors.

Hon’ble Judges/Coram:Aftab Alam and R.M. Lodha, JJ.

Citation: (2011) 9 SCC 678

1. Leave granted.
2. The purchaser, who was not celebration to a fit though demon leaded as 2nd Respondent in a initial seductiveness and was decorated as such in a second appeal, is a Appellant being depressed by a visualisation and sequence of a High Court of Punjab and Haryana whereby a Single Judge of that Court authorised a second seductiveness elite by a Plaintiff (1st Respondent) and set aside a point visualisation and direct of a courts next and remanded a fit to a conference probity for uninformed ordering after giving a Plaintiff an event to lead evidence.
3. In a month of May, 1991, a 1st Respondent – M/s. Tirgun Auto Plast Private Limited – practical to a Punjab Financial Corporation (for short, ‘Corporation’) for a tenure loan of Rs. 47.60 lac and special collateral assistance (soft loan) of Rs. 4 lac. The tenure loan of Rs. 46 lac and soothing loan of Rs. 4 lac was disbursed by a Corporation to a 1st Respondent in a month of October, 1991 on execution of a debt deed. Vide this debt deed, a 1st Respondent mortgaged a several resources in foster of a Corporation. On a 1st Respondent’s disaster to compensate a due volume along with interest, a Corporation on Mar 19, 1998 took over a mortgaged skill comprising land, building and machine in practice of a energy underneath Section 29 of a State Financial Corporations Act, 1951 (for short, ‘1951 Act’).
4. The 1st Respondent (hereinafter referred to as ‘Plaintiff’), on Feb 17, 2001, filed a fit for declaration, imperative explain and other relief’s opposite a Corporation – 2nd Respondent in a Court of Civil Judge (Junior Division), Chandigarh. Inter alia, a Plaintiff prayed that a takeover of a resources and all successive sale record by a Corporation be announced illegal, nothing and blank and inoperative; a instruction be released to a Corporation to assign seductiveness during a rate of 12.5 per cent per annum (prevailing rate) on a loan from a date of derivation of prolongation to a date of takeover and a Corporation be also destined to revive behind a possession of a fit skill to it.
5. The Corporation (sole Defendant) in a fit traversed a Plaintiff’s explain and set adult a defence that Plaintiff could not compensate a due volume underneath a loan notwithstanding steady notices necessitating a movement underneath Section 29 of a 1951 Act. The Corporation asserted that satisfactory procession was followed and No. illegality was committed by it in move underneath Section 29 of a 1951 Act. The Corporation also lifted objections per a maintainability of a fit on a drift of reduction and office of a Civil Court.
6. The conference probity carrying courtesy to a pleadings of a parties framed issues (six in all) on Jul 19, 2006. Issue No. 1 was to a following effect:

Whether impugned movement of Defendant is bootleg and if it is proved, either Plaintiff is entitled for direct of stipulation and imperative injunction?

The weight to infer a above emanate was kept on a Plaintiff.

1. Thereafter, a fit was bound for a justification of a Plaintiff on Nov 1, 2006. However, No. justification was let in on that day. The matter was afterwards shelved for a justification of a Plaintiff on Mar 2, 2007. On that day also a Plaintiff did not furnish justification and a matter was shelved to May 10, 2007. On May 10, 2007 again Plaintiff did not furnish any evidence. The conference probity was, thus, compelled to ensue underneath Order XVII Rule 3(a) of a Code of Civil Procedure, 1908 (for brief ‘Code of Civil Procedure’) and upheld a following order:

Matter is bound for end of a Plaintiff’s justification being final opportunity. No. Plaintiff’s declare is benefaction and conjunction any reasoning reason has been put onward for such disaster entirely meaningful a fact that currently is a third effective event for end of Plaintiff’s evidence. Hence, matter is systematic to be proceeded underneath Order 17, Rule 3(a) Code of Civil Procedure and Plaintiff’s justification is deemed to be closed. Heard. To come adult after lunch for orders.

1. On May 10, 2007 itself in light of a above order, a conference probity discharged a fit in a post lunch session.
2. After exclusion of a suit, a Corporation sole a mortgaged skill by auction to a Appellant for Rs. 64.60 lac (Sixty 4 lac and sixty thousand only).
3. Against a visualisation and direct of a conference probity upheld on May 10, 2007, a Plaintiff elite polite seductiveness in a probity of Additional District Judge, Chandigarh. In a appeal, a Plaintiff done an focus on Dec 21, 2007 for slash of a Appellant and a partners as Respondent Nos. 2 to 5. The focus for slash was postulated and a Appellant and Respondent Nos. 3 to 5 herein were combined as parties.
4. The Additional District Judge, Chandigarh after conference a parties, discharged a polite seductiveness on Mar 20, 2008.
5. Being not confident with a point visualisation and direct of a dual courts below, a Plaintiff elite second seductiveness before a High Court which, as beheld above, has been authorised by a Single Judge on Sep 20, 2010 and a fit has been remanded to a conference probity for uninformed preference in suitability with law.
6. The visualisation of a High Court is sincerely injured and can't be postulated for some-more than one reason. In a initial place, a High Court, while determining a second appeal, unsuccessful to belong to a required requirement of Section 100 Code of Civil Procedure and interfered with a point visualisation and direct of a courts next though formulating any estimable doubt of law. The plan of estimable doubt of law is a contingency before a second seductiveness is listened and finally likely of by a High Court. This Court has reiterated and restated a authorised position time out of series that plan of estimable doubt of law is a condition fashion for interesting and determining a second appeal. Recently, in a box of Umerkhan v. Bismillabi @ Babulal Shaikh and Ors. Civil Appeal No. 6034 of 2011 motionless by us on Jul 28, 2011, it has been reason that a visualisation of a High Court is rendered plainly illegal, if a second seductiveness is listened and visualisation and direct appealed opposite is topsy-turvy though formulating a estimable doubt of law. The authorised position with courtesy to second appellate office of a High Court was settled by us thus:
7. In a view, a really office of a High Court in conference a second seductiveness is founded on a plan of a estimable doubt of law. The visualisation of a High Court is rendered plainly illegal, if a second seductiveness is listened and visualisation and direct appealed opposite is topsy-turvy though formulating a estimable doubt of law. The second appellate office of a High Court underneath Section 100 is not same to a appellate office underneath Section 96 of a Code; it is limited to such estimable doubt or questions of law that might arise from a visualisation and direct appealed against. As a matter of law, a second seductiveness is perform means by a High Court usually on a compensation that a estimable doubt of law is endangered in a matter and a plan thereof. Section 100 of a Code provides that a second seductiveness shall be listened on a doubt so formulated. It is, however, open to a High Court to reframe estimable doubt of law or support estimable doubt of law new or reason that No. estimable doubt of law is endangered during a time of conference a second seductiveness though annulment of a visualisation and direct upheld in seductiveness by a probity subordinate to it in practice of office underneath Section 100 of a Code is impermissible though formulating estimable doubt of law and a preference on such question. This Court has been bringing to a notice of a High Courts a constraints of Section 100 of a Code and a charge of a law contained in Section 101 that No. second seductiveness shall distortion solely on a belligerent mentioned in Section 100, nonetheless it appears that a elemental authorised position concerning office of a High Court in second seductiveness is abandoned and ignored time and again. The benefaction seductiveness is unfortunately one of such matters where High Court interfered with a visualisation and direct of a initial appellate probity in sum negligence of a above authorised position.
8. Unfortunately, a High Court unsuccessful to keep in perspective a constraints of second seductiveness and ignored a requirement of a second appellate office as supposing in Section 100 Code of Civil Procedure and that vitiates a decision.
9. Second, and equally important, a High Court dissapoint a point visualisation and direct of a dual courts on unnoticed magnetism and non – extant justification. The High Court celebrated that a stakes in a fit being really high, a Plaintiff should not be non-suited on a basement of No. evidence. But, who is to be blamed for this lapse? It is a Plaintiff alone. As a matter of fact, a conference probity had given some-more than sufficient event to a Plaintiff to furnish justification in support of a case. As beheld above, after a issues were framed on Jul 19, 2006, on 3 occasions, a conference probity bound a matter for a Plaintiff’s justification though on nothing of these dates any justification was let in by it. What should a probity do in such circumstances? Is a probity thankful to give demurral after demurral merely since a stakes are high in a dispute? Should a probity be a wordless declare and leave control of a box to a celebration to a box who has motionless not to take a box forward? It is sad, though true, that a litigants find – and a courts extend – adjournments during a dump of a hat. In a cases where a judges are small pro-active and exclude to permit to a requests of nonessential adjournments, a litigants muster all sorts of methods in protracting a litigation. It is not startling that polite disputes drag on and on. The unnoticed magnetism and lenience by a appellate and revisional courts devalue a ailment further. The box in palm is a box of such unnoticed sympathy. It is high time that courts turn supportive to delays in probity smoothness complement and comprehend that adjournments do hole a efficiency of legal routine and if this threat is not tranquil adequately, a contractor open might remove faith in a complement earlier than later. The courts, quite conference courts, contingency safeguard that on each date of hearing, effective swell takes place in a suit.
10. No. contractor has a right to abuse a procession supposing in a Code of Civil Procedure. Adjournments have grown like cancer corroding a whole physique of probity smoothness system. It is loyal that top on adjournments to a celebration during a conference of a fit supposing in portion to Order XVII Rule 1 Code of Civil Procedure is not imperative and in a suitable case, on pardonable cause, a probity might extend some-more than 3 adjournments to a celebration for a justification though usually a top supposing in a portion to Order XVII Rule 1 Code of Civil Procedure should be maintained. When we contend ‘justifiable cause’ what we meant to contend is, a means that is not usually ‘sufficient cause’ as contemplated in Sub-rule (1) of Order XVII Code of Civil Procedure though a means that creates a ask for demurral by a celebration during a conference of a fit over 3 adjournments destined and arrange of a constrained prerequisite like remarkable illness of a contractor or a declare or a lawyer; genocide in a family of any one of them; healthy difficulty like floods, earthquake, etc. in a area where any of these persons reside; an collision involving a contractor or a declare or a counsel on approach to a probity and such like cause. The list is usually scholastic and not exhaustive. However, a deficiency of a counsel or his non-availability since of veteran work in other probity or elsewhere or on a belligerent of strike call or a change of a counsel or a continual illness of a counsel (the celebration whom he represents contingency afterwards make choice arrangement good in advance) or identical drift will not clear some-more than 3 adjournments to a celebration during a conference of a suit. The past control of a celebration in a control of a record is an critical business that a courts contingency keep in perspective whenever a ask for demurral is made. A celebration to a fit is not during autocracy to ensue with a conference during a convenience and pleasure and has No. right to establish when a justification would be let in by it or a matter should be heard. The parties to a fit – either Plaintiff or Defendant – contingency concur with a probity in ensuring a effective work on a date of conference for that a matter has been fixed. If they don’t, they do so during their possess peril. Insofar as benefaction box is concerned, if a stakes were high, a Plaintiff ought to have been some-more critical and observant in prosecuting a fit and producing a evidence. If notwithstanding 3 opportunities, No. justification was let in by a Plaintiff, in a view, it deserved No. magnetism in second seductiveness in practice of energy underneath Section 100 Code of Civil Procedure. We find No. justification during all for a High Court in upsetting a point visualisation of a courts below. The High Court was clearly in blunder in giving a Plaintiff an event to furnish justification when No. justification for that march existed.
11. In a result, a seductiveness is authorised and visualisation and sequence of a High Court upheld on Sep 20, 2010 is set aside. There shall be No. sequence as to costs.