The impugned order of attachment, however harsh that it
may sound to be or be made out by the petitioner, would leave no room for showing misplaced sympathy to the petitioner. The issue arising out of
the original proceedings having been crystallized to the effect that the plaintiff had dragged the defendants in a vexatious and frivolous litigation
would dis-entitle the petitioner for any relief. I am thus convinced that it ought to be left to the wisdom of the Court dealing with the Execution Petition in the light of the material placed before it to conclude as to the
manner of executing the decree. In the instant case, since the properties were identified by the judgment holders and the material on record convinced the lower Court in passing the impugned order, does not appear to me to be un-justified or illegal. The impugned order does not suffer from any perversity or legal infirmities.
Bombay High Court
Shri Dilipkumar Hirachand Jain v Dena Bank, on 4 September, 2013
Bench: R.V. Ghuge
Citation; 2013 (6) ALL M R 654
1. Heard learned counsel for the respective parties. om
2. Rule. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal. B
3. The petitioner, vide this petition, has impugned order dated 2.8.2007 passed by the learned II Joint Civil Judge (Senior Division), Jalgaon in Special Darkhast No.105 of 2007 below Exhibit 7. Vide the said order, learned lower Court has issued an attachment warrant under Order XXI Rule 54 of the Code of Civil Procedure (for the sake of brevity, hereinafter, referred to as "the Code"). ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
3
4. The petitioner has narrated the facts, which, in brief, are as rt
follows:-
ou
The petitioner was original plaintiff No.2 in Special Civil Suit No.332 of 1996. The subject matter of the said suit was a claim for compensation on the ground that the defendants therein had defamed the C
petitioner by publishing a defamatory notice in daily news paper "Lokmat". Damages to the tune of Rs. Ten Crores were claimed before the learned h
Civil Judge (Senior Division), Jalgaon. Defendant No.1 therein is the Dena ig
Bank, which had got said notice published in Daily Lokmat on 7.3.1996, in relation to non-payment of loan amount. The plea of the original plaintiff H
was that the publication of the said notice in the concerned news paper on 7.3.1996 had caused defamation of the plaintiff and their partnership y
firm inasmuch as it lowered their credit, dignity and reputation in the society and amongst friends, relatives and customers. Said suit for ba
damages came to dismissed with costs vide judgment and order dated 17.8.2004. It is noteworthy that a decree for costs below Exhibit 129 was om
drawn on 29.8.2004 being a part of the judgment and order dated 17.8.2004.
B
5. The petitioner herein preferred a First Appeal No.462 of 2005 before the Division Bench of this Court. Needless to state that on the date of institution of the said First Appeal, the appellant therein (present petitioner) was aware of the decree. All the defendants in the original suit were impleaded as respondents in the said First Appeal. ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
4
6. The facts that emerge from the record are that while dealing rt
with the First Appeal, learned Division Bench of this Court, dismissed the ou
said First Appeal to the extent of respondent No.3 (the Advocate issuing the public notice), respondent No.4 (news paper in which the notice was published) and respondent Nos.5 and 6 (Printers and publishers of the said C
news paper, namely, "Daily Lokmat") on 31.01.2007. As such, the said First Appeal was dismissed at the threshold against said respondent Nos. 3 h
to 6. Said respondents are impleaded in this petition as well at the same ig
serial numbers. Respondent No.7 in this petition has been deleted by the petitioner on 24.7.2009 itself. Thereafter the said First Appeal was H
dismissed on 30.03.2007, which according to the learned counsel for the petitioner has not been taken up in challenge before the Honorable Apex y
Court. Needless to state, said order dated 30.3.2007 has attained finality. ba
7. The petitioner states that the respondents herein (original defendants), had preferred Execution Petition No.105 of 2007 before om
learned II Joint Civil Judge (Senior Division), Jalgaon. Said decree holders identified the properties of the petitioner herein and sought the execution of decree, as against the said properties. It may be noted that vide said B
decree, costs worth Rs.6,25,664/- (with reference to defendant No.1), Rs. 6,25,914/- (with reference to defendant No.2) and Rs.6,25,611/- (with reference to defendant Nos.4 and 6) were awarded. It is these costs that are sought to be recovered by the said execution proceeding. It is in this context that order dated 2.8.2007 was passed by the lower Court for attaching the properties for recovery of the costs, which is impugned in ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
5
present Writ Petition.
rt
ou
8. The petitioner, while filing this petition, had failed to produce a copy of the decree before this Court. It was pursuant to the order dated 1.2.2012 passed by this Court, the petitioner has produced C
copy of the said decree on record. h
9. The petitioner stated that the First Appeal, preferred by ig
him, bearing No.462 of 2005, has suffered two orders. Firstly, that the said First Appeal was dismissed at the threshold as against respondent H
Nos. 3,4,5 and 6. Secondly, the said First Appeal to the extent of respondent No.1 (M/s Dena Bank) and respondent No.2 (Senior Manager, y
Dena Bank) was dismissed vide judgment dated 30.3.2007. The petitioner further contends that he has not challenged the said judgment before the ba
superior Court. It is his contention that while computing the amount of costs, the petitioner needs to be heard but that was not the case before om
the lower Court. He emphatically states that neither the petitioner was heard while calculating the said costs nor has the lower Court seriously calculated the said amount. According to him, the lower Court has B
casually arrived at the figures based merely upon the status of the defendants. He stated that though the said decree has not been challenged in this petition, this Court could look into the legality and propriety of the said decree while dealing with this petition. He has raised grounds as regards fairness and legality of the costs awarded without specifically setting out his prayers. He further contended that Section 35 ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
6
of the Code provides for determination of costs but with certain legal rt
fetters. He thus prayed for quashing and setting aside the impugned order ou
of attachment.
10. Shri Adwant, learned counsel for respondent No.2 stated that C
the petitioner herein had challenged the judgment and order dated 17.8.2004 before the learned Division Bench of this Court by filing First h
Appeal No.462 of 2005. It is his contention that the petitioner had an ig
opportunity of setting forth his challenge to the decree, of which he had the knowledge, before the Division Bench in First Appeal. He further H
states that despite a substantive challenge posed by the petitioner, he preferred not to specifically assail the legality and propriety of the decree y
in the said appeal. He further contended that Order XX Rule 7 of the Code envisages that the decree shall bear the date on which judgment was ba
pronounced and Order XX Rule 6(2) enshrines that the decree shall mention the amount of costs. It was, therefore, his contention that the om
dismissal of the First Appeal amounts to a foreclosure of any legal right vested in the petitioner by law for challenging the decree, dated 17.8.2004.
B
11. According to him, identification of the property and it's attachment is the only mode available for execution of a decree and it is a substantive as well as a due process of law. The petitioner is attempting to avoid his liability and the judgment and decree cannot be segregated or bifurcated in to parts in order to enable the petitioner to challenge one ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
7
part at one point of time and the decree part subsequently after the rt
dismissal of the First Appeal. According to him, the only option available ou
to the petitioner is to approach the Superior Court and that the Writ Petition is not maintainable as against a decree. C
12. Shri Shah, learned counsel for respondent No.3 stated that Order XXI Rule 58 of the Code pertains to adjudication of claims, h
objections to attachment of property and any such order passed ig
thereunder pertaining to any claim or objection, usually has the same force and subject to the same conditions as to an appeal or otherwise, as H
if it were a decree. Order XXI Rule 58 of the Code reads as under:- 58 . Adjudication of claims to, or objections to attachment y
of, property-- (1) Where any claim is preferred to, or any ba
objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall om
proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such claim or objection shall be entertained--
B
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
8
the parties to a proceeding or their representatives under rt
this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the ou
claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to C
in sub- rule (2), the Court shall, in accordance with such determination,--
(a) allow the claim or objection and release the h
property from attachment either wholly or to such extent as it thinks fit; or
ig
(b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, H
charge or other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit.
y
(4) Where any claim or objection has been adjudicated ba
upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. om
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain B
it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claims or objection shall be conclusive."
Further according to him, neither can the decree be challenged through a Writ Petition before the learned Single Bench of the ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
9
High Court nor can an order of attachment be challenged through such a rt
Writ Petition. According to him, at the best, the petitioner can prefer ou
First Appeal for challenging the attachment order.
13. With the assistance of the learned counsel for the parties, I C
have gone through the Writ Petition along with the documents annexed thereto as well as the decree dated 17.8.2004, which is a part of the h
Special Civil Suit No.332 of 1996. Having understood the rival contentions ig
of the parties, it thus appears that the respondents are making strenuous effort to suggest that the decree at issue could not have been challenged H
by this Writ Petition, inasmuch as the petitioner has acquiesced it's right to challenge the said decree since he had preferred First Appeal No.462 of y
2005, which has been dismissed by an order dated 30.3.2007 by the learned Division Bench of this Court. Moreover, the petitioner has ba
admitted that he has neither challenged the two orders, dated 31.1.2007 and 30.3.2007, passed by the Division Bench of this Court in the said First om
Appeal nor has he specifically challenged the decree dated 17.8.2004 through any proceeding before the higher Court. It is further admitted that the said decree is not a subject matter of challenge in this Writ B
Petition.
14. Section 35 of the code reads as under:- "35. Costs-- (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
10
power to determine by whom or out of what property and to rt
what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact ou
that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers. C
(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing." h
15. Going by the phraseology of Section 35 of the Code, it is ig
clear that the Court has full powers to determine the extent of costs and computation of such costs is thus a matter of jurisdiction and the H
discretion of the Court subject to the parameters of Section 35, as a part and parcel of it's power to decide the suit for damages. Needless to state y
that the powers flowing from Section 35 of the Code are incidental to the ba
powers of the Court while deciding a suit for damages. In other words, while deciding the suit, Court shall have the powers to either award costs against the losing party or decline to award costs to the winning party. As om
such, it apparently is a single complete transaction of deciding a suit as well as computing the costs, if they are so awarded. As such, a decree of B
costs shall always be a part and parcel of adjudication of a suit for damages. Therefore, the judgment and decree passed by the competent Court in such a suit, can be challenged in First Appeal in it's totality. Nevertheless, if the losing side prefers to restrict it's challenge only to the judgment and order and voluntarily prefers to refrain from challenging the decree in the First Appeal, it surely tantamounts to voluntarily giving up it's challenge to such a decree of awarding costs. Be that as it may, ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
11
since the said decree is not challenged before this Court and is not sought rt
to be quashed and set aside, I am unable to go into the aspect of the ou
legality and propriety of the said decree.
16. The present petitioner had preferred to challenge the C
judgment and decree passed by the learned Civil Judge (Senior Division), Jalgaon in Special Civil Suit No.332 of 1996 dated 17.8.2004. This is h
specifically observed in paragraph No.1 of the judgment of the Division ig
Bench of this Court, dated 30.3.2007 in First Appeal No.462 of 2005. Needless to state, since the suit for damages was to the tune of Rs.Ten H
Crores, the First Appeal lay before the Division Bench of this Court. There is no controversy raised before this Court by either of the counsel for the y
parties regarding the maintainability of the First Appeal No.462 of 2005. As a natural corollary and in view of Order XX Rule 7 of the Code, it is ba
clear that the decree could neither have been bifurcated in order to constitute a challenge through a First Appeal and Writ Petition and that om
too after a passage of almost three years and six months. So also, since the First Appeal was a legal remedy available to the petitioner against the said judgment and decree, a Writ Petition against a decree in isolation is B
not maintainable. I, therefore, conclude that the petitioner could not have raised a challenge to the said decree through a Writ Petition. Needless to state that this Writ Petition is thus limited to the extent of a challenge to the impugned order of attachment of the property.
17. Learned counsel for the petitioner strenuously tried to ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
12
contend that the legality and propriety of the decree can be looked into rt
by this Court within the scope of it's powers under Articles 226 and 227 of ou
the Constitution of India. The petitioner, in the cause title of this Writ Petition, has failed to mention as to which Article was he invoking for filing his petition. In paragraph No.5 of the petition, the petitioner has C
invoked jurisdiction of this Court under Article 227 of the Constitution of India. The petitioner has stated therein ( in verbatim ) as under:- h
"
ig
5. Petitioner submits, that petitioner had filed review application along with delay condonation application, praying therein that the judgment in First Appeal no. H
462/2005 be reviewed an interfered with to the extent of Costs granted. Some of the pleadings therein and this matter are co-related, but the prayers and immediate relief y
in both the matters are at variance. Petitioner herein is ba
challenging the Order of Attachment issued u/Ord.21 Rule 54, dated 2/8/2007 and is invoking the constitutional jurisdiction vested in the Hon'ble Court u/Art.227 and as such om
the pendency of review petition, would come in way of this writ petition. Except as above no other proceedings or appeal has been preferred with the same prayers either to this Hon'ble Court or to any other Court." B
Thus, the petitioner on one hand contends that a Review Petition, with a condonation of delay application, has been filed seeking review of the judgment in the First Appeal and on the other hand, states that the prayers and immediate relief in that Review Petition and this Writ petition are at variance and therefore, the petitioner is challenging the ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
13
order of attachment under Article 227 of the Constitution of India. So rt
also, the petitioner admits in the said paragraph that while seeking a ou
review of the judgment in the First Appeal, he has also prayed for interference to the extent of costs granted. It is revealed from the record of First Appeal No.462 of 2005 that the Review Petition No.14004 of 2007 C
has been rejected with a reasoned order dated 08.02.2011 passed by the learned Division Bench of this Court. It is observed that the challenge in h
the review application is only to the extent of imposition of costs. ig
Naturally, this Writ Petition is, therefore, restricted only to the extent of scrutinizing the legality of the impugned order. H
18. Learned counsel for the petitioner has placed reliance upon y
the judgment of this Court in the case of M/s Vernekar Industries, Panjim, Goa Vs.Starit Engineering Co. Ltd. Bombay [AIR 1985 Bombay 253]. Said ba
case dealt with the purpose of costs to be awarded and the amount of costs to be computed. Since the said issue is not being dealt with herein, om
the said ratio would not assist the petitioner. Learned counsel for the petitioner has further relied upon the judgment of this Court in the case of Maharashtra State Electricity B
Board Vs. M/s Sureka Industries [ 2007(1) ALL MR 878 ]. The issue involved in the said case was the propriety of imposing costs by the Court and opportunity of hearing to be given to the judgment debtor. This judgment again would not of any assistance to the petitioner since the issue of legality and propriety of awarding the quantum of costs is not before this Court for adjudication.
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14
Learned counsel for the petitioner has also relied upon the rt
Full Bench judgment of the high Court of Gujarat in the case of M/s Anand ou
Haridas and Co. Pvt. Ltd. Vs. State of Gujarat [AIR 1977 Guj 140]. The issues before the Full Bench were with reference to the proportionality of the costs, taxation of costs regarding the court fees, Advocates' fees and C
manner of calculation of such costs. Having already concluded that the said issues are not before this Court in this Writ Petition, the view taken h
by the Full Bench of Gujarat High Court is of no assistance to the petitioner.
ig
H
19. Per contra, the learned counsel Shri Advant and Shri Shah have specifically contended that a well reasoned order has been passed by y
the lower Court while issuing the warrant of attachment. It is seen from the execution proceeding that the judgment holders have identified the ba
property for attachment. It is not the contention of the petitioner that the property with a huge value has been sought to be attached for the om
recovery of much lesser amount. It is also seen from the memo of this petition that the petitioner has devoted most of his grounds to the issue of quantum of costs and the procedure of calculating such costs. A feeble B
challenge appears from the grounds set out in the memo of petition to the legality and validity of the impugned order of attachment. Both learned counsel for the respondents have vehemently submitted that the petitioner had dragged the respondents in a vexatious and frivolous litigation and is now leaving no stone unturned in his effort of frustrating the recovery of costs. I have gone through the impugned order, wherein ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
15
the learned lower Court has considered the rival contentions and that the rt
attachment of property could be a proper mode in furtherance of the ou
execution of the decree.
20. While dealing with Sections 35 and 35A of the Code, it would C
be appropriate to refer to the principles underlined for award of costs in the case of Manindra Chandra Nandi Vs. Aswini Kumar Acharjya [ILR (1921) h
48 Cal. 427].
ig
"....We must remember that whatever the origin of costs H
might have been, they are now awarded, not as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected, or, as Lord Coke puts it, for whatever appears to y
the Court to be the legal expenses incurred by the party in ba
prosecuting his suit or his defence. ...The theory on which costs are now awarded to a plaintiff is that default of the defendant made it necessary to sue him, and to a defendant om
is that the plaintiff sued him without cause; costs are thus in the nature of incidental damages allowed to indemnify a party against the expense of successfully vindicating his rights in court and consequently the party to blame pays B
costs to the party without fault. These principles apply, not merely in the award of costs, but also in the award of extra allowance or special costs. Courts are authorized to allow such special allowances, not to inflict a penalty on the un- successful party, but to indemnify the successful litigant for actual expenses necessarily or reasonably incurred in what are designated as important cases or difficult and extraordinary cases."
::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
16
rt
21. In the case of Salem Advocate Bar Association Versus Union ou
of India [(2005) 6 SCC 344), the Honourable Apex Court has held as under:- " Judicial notice can be taken of the fact that many C
unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a h
practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section ig
35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous H
defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that y
the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in ba
its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, om
the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the B
litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow."
22. In the case of Ashok Kumar Mittal Vs. Ram Kumar Gupta [(2009} 2 SCC 656 ] the Honourable Apex Court has pointed out that; ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
17
"..... Present system of levying meager costs in civil matters rt
(or no costs in some matters), is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury litigation ou
borne out of ego or greed, or resorted to as a `buying-time' tactic and that a more realistic approach relating to costs may be the need of the hour. This Court had also observed C
that the question whether we should adopt suitably, the western models of awarding actual and more realistic costs is a matter that requires to be debated and that should h
engage the attention of Law Commission of India...." ig
In the case of Ashok Kumar Mittal (supra) the Honourable H
Supreme Court has further observed that; "7. One view has been that the provisions of Sections 35 y
and 35A CPC do not in any way affect the wide discretion ba
vested in by High Court in exercise of its inherent power to award costs in the interests of justice in appropriate civil cases. The more sound view however is that though award of om
costs is within the discretion of the court, it is subject to such conditions and limitations as may be prescribed and subject to the provisions of any law for the time being in force; and where the issue is governed and regulated by B
Sections 35 and 35A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the Code.
8. Further, the provisions of Section 35A seems to suggest that even where a suit or litigation is vexatious, the outer limit of exemplary costs that can be awarded in addition to regular costs, shall not exceed Rs. 3000/-. It is also to be noted that huge costs of the order of Rs. Fifty ::: Downloaded on - 07/09/2013 22:51:19 ::: WP/1787/2008
18
thousand or Rs. One lakh, are normally awarded only in writ rt
proceedings and public interest litigations, and not in civil litigation to which Sections 35 and 35A are applicable. The ou
principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code." C
23. As such, the earlier challenge to the judgment and decree in h
the First Appeal referred above, having been already turned down and the petitioner having failed to have said order set aside through any ig
proceeding, scope of his challenge to the award of costs is reduced to a H
naught in this petition.
24. In the case of Vinod Seth Vs.Devinder Bajaj [(2010) 8 SCC 1], y
the Honourable Supreme Court has further observed that; ba
"48. The provision for costs is intended to achieve the following goals:
om
(a) It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs B
should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence.
(b) Costs should ensure that the provisions of the Code, Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court.
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19
(c) Costs should provide adequate indemnity to the rt
successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of ou
actual costs of litigation as contrasted from nominal or fixed or unrealistic costs.
C
(d) The provision for costs should be an incentive for each litigant to adopt alternative dispute resolution (ADR) processes and arrive at a settlement h
before the trial commences in most of the cases. In many other jurisdictions, in view of the existence of ig
appropriate and adequate provisions for costs, the litigants are persuaded to settle nearly 90% of the H
civil suits before they come up to trial. (e) The provisions relating to costs should not however obstruct access to courts and justice. Under y
no circumstances the costs should be a deterrent, to a ba
citizen with a genuine or bonafide claim, or to any person belonging to the weaker sections whose rights have been affected, from approaching the courts. " om
25. In the case of Vinod Seth (supra), it is further observed by the Apex Court that;
B
49. Section 35 of the Code vests the discretion to award costs in the courts. It provides that normally the costs should follow the event and court shall have full power to determine by whom or out of what property, and to what extent such costs are to be paid....." ::: Downloaded on - 07/09/2013 22:51:20 ::: WP/1787/2008
20
Similarly, in the said case of Vinod Seth (supra), it is further rt
observed by the Apex Court that; ou
"51. As Section 35 of the Code does not impose any ceiling the desired object can be achieved by the following: C
(i) courts levying costs, following the result, in all cases (non-levy of costs should be supported by h
reasons); and
ig
(ii) appropriate amendment to Civil Rules of Practice relating to taxation of costs, to make it more realistic H
in commercial litigation. "
26. The Honourable Apex Court in the case of Sanjeev Kumar y
Jain Vs. Raghubir Saran Charitable Trust [ (2012) 1 SCC 455 ] has observed ba
in paragraph Nos.16 and 23 as follows :- om
"16. Though, Section 35 does not impose a ceiling on the costs that could be levied and gives discretion to the Court in the matter, it should be noted that Section 35 starts with the words "subject to such conditions and limitations as B
may be prescribed, and to the provisions of law for the time being in force". Therefore, if there are any conditions or limitations prescribed in the Code or in any rules, the Court, obviously, cannot ignore them in awarding costs.
23. There is one more aspect which requires serious consideration. What is the meaning of the words `actual realistic costs' assuming that costs could be awarded on such basis? Whether it can be said that 45,28,000/- said ::: Downloaded on - 07/09/2013 22:51:20 ::: WP/1787/2008
21
to have been incurred (made up of 29,73,000/- paid to Mr. rt
S, Senior Advocate, 14,41,000/- paid to Mr. G, Senior Advocate, 85,500/- paid to Mr. M, Advocate, 16,750/- paid ou
to Mr. V, Advocate and 11,750/- incurred as miscellaneous expenses) was the 'actual realistic cost' of an appeal against an interim order in a suit for injunction? The actual realistic C
cost should have a correlation to costs which are realistic and practical. It cannot obviously refer to fanciful and whimsical expenditure by parties who have the luxury of h
engaging a battery of high-charging lawyers. If the logic adopted by the High Court is to be accepted, then the losing ig
party should pay the costs, not with reference to the subject matter of the suit, but with reference to the fee paying H
capacity of the other side....." y
27. Needles to stay that, the aspect of legality and propriety of ba
costs could have been scrutinised but for the fact that when the petitioner had his chance to make good his challenge to the decree, he preferred not om
to raise a challenge till the First Appeal was dismissed. `Acceptance-sub- silentio' thus precludes the petitioner from assailing the decree in this Writ Petition.
B
28. That leaves this Court with the last limb of arguments of the petitioner that the impugned order of attachment could not have been passed since the petitioner is unaware as to when and how the costs have been calculated. It cannot be lost sight of the fact that it was the petitioner who produced the copy of the decree pursuant to the order of ::: Downloaded on - 07/09/2013 22:51:20 ::: WP/1787/2008
22
this Court dated 1.2.2010. Needless to state, it is thus evident that the rt
petitioner was aware of the costs and the fourteen pages of analysis and ou
reasons given by the lower Court in support of drawing the said decree. Having not raised a substantive challenge to the said decree, renders the petitioner, at least for the present, handicapped on account of C
acquiescence.
h
29. In taking a total view of the matter, with due ig
circumspection, I find that the petitioner has failed to point out any illegality or perversity in the impugned order. H
30. The impugned order of attachment, however harsh that it y
may sound to be or be made out by the petitioner, would leave no room for showing misplaced sympathy to the petitioner. The issue arising out of ba
the original proceedings having been crystallized to the effect that the plaintiff had dragged the defendants in a vexatious and frivolous litigation om
would dis-entitle the petitioner for any relief. I am thus convinced that it ought to be left to the wisdom of the Court dealing with the Execution Petition in the light of the material placed before it to conclude as to the B
manner of executing the decree. In the instant case, since the properties were identified by the judgment holders and the material on record convinced the lower Court in passing the impugned order, does not appear to me to be un-justified or illegal. The impugned order does not suffer from any perversity or legal infirmities. ::: Downloaded on - 07/09/2013 22:51:20 ::: WP/1787/2008
23
31. In the result, Writ Petition stands dismissed. Rule stands rt
discharged. No order as to costs. ou
32. At this stage, learned counsel for the petitioner seeks stay of execution and operation of this judgment for the period of eight weeks in C
order to enable him to challenge this judgment as well as the impugned order before the Honourable Apex Court. Learned counsel for h
respondents oppose the said request.
33.
The First Appeal which impugned the judgment and decree H
was dismissed on 30.3.2007. It is now informed by the learned counsel for respondents that the Special Leave Petition challenging the said judgment y
and decree, preferred at the behest of the petitioner himself, has also been rejected. The petitioner had also preferred Review Application No. ba
26 of 2011 (Stamp No.14004 of 2007), wherein the costs awarded was specifically challenged. The Division Bench of this Court, vide order dated om
8.2.2011, rejected the Review Application as well. The judgment and decree is dated 17.8.2004. I have already concluded that the conduct of the petitioner has deprived the decree holders from getting fruits of the B
decree for last about nine years. In the light of these facts, request stands rejected.
(RAVINDRA V. GHUGE, J.)
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