# Writ Petition No. 1537(MS) of 2010

- **Citation:** Writ Petition No. 1537(MS) of 2010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-26
- **Case number:** Writ Petition No. 1537(MS) of 2010
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/writ-petition-no-1537-ms-of-2010-42940
- **Pages:** 4

## Headnote

516 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Sri Adnan Ahmad and Sru Manish Mishra

Constitution of India, Art.-226- Jurisdiction
of Distt. Consumer Forum-application to
returned the Documents as had cleared
entire amount of loan-other hand heavy
amount
claimed
overdue-Distt.
forum
passed interim order-contrary to provisions
of Section 34 of Securitisation Act-held
without
jurisdiction-order
impugned
quashed.

Held: Para-8
In reply without disputing the proposition
of law laid down by Hon'ble the Supreme
Court as well as by this Court, the learned
counsel for the respondents submitted that
he has not challenged any proceeding of
Recovery of Debt rather he has moved an
application to return his record being
consumer of the Bank. Therefore, the same
is
well
maintainable.
However,
upon
perusal of the facts I am of the view that
substantially the petitioner has invoked the
jurisdiction of the District Consumer Forum
to interfere in the proceeding of Recovery
of Debt posing as he has cleared of dues,
whereas still the loan is due. Therefore, I
am of the view that petitioner's complaint is
also based on concealment of facts. He has
not approached the District Consumer
Forum with clean hands. Besides it, I am
further of the view that since substantially
the matter relates to recovery of debt, the
District
Consumer
Forum
lacks
the
jurisdiction.

Case Law discussed:
(2009) 8 Supreme Court Cases 646; 2009 (27)
LCD 1666;

## Text

1 All Radhey Shyam Gupta Vs. U.P. State Agro Industrial Corp.
515
matter pending on unfounded ground by
taking dilatory tactics.

36. In view of above, so far as
payment of wages are concerned, we are
of the view that the petitioner is entitled
for
full
salary
immediately
after
pronouncement of judgement of U.P.
Public
Services
Tribunal
i.e.
from
31.12.1980
with
all
consequential
benefits. So far as backwages are
concerned, we direct the respondents to
pay lump-sum amount of Rs. 1,00000/-
(one lacs) in lieu of backwages for the
reason that petitioner had already attained
the age of superannuation and fresh
proceeding under financial handbook
(Rule 54 (4) Part II to IV will further
cause mental pain and agony to the
petitioner.

37. We further of the view that
petitioner is entitled for continuity of
service because of the fact that order of
termination was declared void by the
tribunal which was restored by the
Hon'ble Supreme Court. Once the order of
termination was quashed by the courts
then the employee shall deemed to be in
service with all consequential benefits.

38. In view of above, writ petition is
allowed. A writ in the nature of
mandamus is issued commanding the
respondents to pay backwages to the tune
of Rs. 1,00000/-(one lacs) expeditiously,
say within a period of three months from
the date of receipt of a certified copy of
this order.

39. Respondents are further directed
to pay arrears of full salary immediately
after the date of pronouncement of
judgement, by the tribunal i.e. from
31.12.1980 along with interest @ 8 per
cent till the age of superannuation after
deducting whatever amount has already
been paid.

40. A writ in the nature of
mandamus is further issued directing the
respondents subject to above to pay all
other consequential benefits available to
the petitioner in accordance to rules
considering the petitioner's continuity in
service from the date of appointment.

41. Let the order be complied with
by the respondents within three months
from the date of receipt of a certified copy
of this order.

42. Writ petition is allowed
accordingly.

43. Let a certified copy of this order
be provided to the parties' counsel on
payment of usual charges within a week.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 1537(MS) of 2010

Housing
Development
Finance
Corporation Ltd.

 Petitioner
Versus
District Consumer Disputes Redressal
Forum(I)
 ...Respondent

Counsel for the Petitioner:
Shakti Ojha

Counsel for the Respondent:
C.S.C.
516 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Sri Adnan Ahmad and Sru Manish Mishra

Constitution of India, Art.-226- Jurisdiction
of Distt. Consumer Forum-application to
returned the Documents as had cleared
entire amount of loan-other hand heavy
amount
claimed
overdue-Distt.
forum
passed interim order-contrary to provisions
of Section 34 of Securitisation Act-held
without
jurisdiction-order
impugned
quashed.

Held: Para-8
In reply without disputing the proposition
of law laid down by Hon'ble the Supreme
Court as well as by this Court, the learned
counsel for the respondents submitted that
he has not challenged any proceeding of
Recovery of Debt rather he has moved an
application to return his record being
consumer of the Bank. Therefore, the same
is
well
maintainable.
However,
upon
perusal of the facts I am of the view that
substantially the petitioner has invoked the
jurisdiction of the District Consumer Forum
to interfere in the proceeding of Recovery
of Debt posing as he has cleared of dues,
whereas still the loan is due. Therefore, I
am of the view that petitioner's complaint is
also based on concealment of facts. He has
not approached the District Consumer
Forum with clean hands. Besides it, I am
further of the view that since substantially
the matter relates to recovery of debt, the
District
Consumer
Forum
lacks
the
jurisdiction.

Case Law discussed:
(2009) 8 Supreme Court Cases 646; 2009 (27)
LCD 1666;

(Delivered by Hon'ble Shri Narayan Shukla, J)

1. Heard Mr Shakti Ojha, learned
counsel for the petitioner as well as Mr
Adnan Ahmad, learned counsel for the
respondent.

2. By challenging the orders dated
9th of November, 2009 as well as 11th of
January,2010,
passed
by
District
Consumer Disputes Redressal Forum (I),
Lucknow, Opposite Party No. 1, in
Complaint Case No. 1117 of 2009, in fact,
the
petitioner
has
challenged
the
proceedings of the complaint itself being
without jurisdiction.

3. Learned counsel for the petitioner
submits that the proceeding of the
complaint has arisen out of notice issued
under Section 13 (4) of the Securitisation
and Reconstruction of Financial Assets
and Enforcement of Security Interest Act,
2002
(
hereinafter
referred
to
as
Securitisation
Act).
The
respondent
instituted a complaint under Section 12 of
the Consumer Protection Act, 1986 for
issuing directions to return his documents
as well as the papers of the agreement as
he has cleared whole dues, whereas the
learned counsel for the petitioner submits
that still there are huge dues against the
petitioner for payment. Thus, he submits
that the respondent's complaint is based
on concealment of fact. The petitioner
also raised preliminary objection against
the maintainability of the complaint
before the District Consumer Disputes
Redressal Forum (hereinafter referred to
as District Forum), but the District Forum
overruled the objection and passed the
interim order on 9.11.2009, restraining the
opposite parties not to dispossess the
complainant from the house in dispute.
The said order is under challenge in the
instant writ petition.

4. Learned counsel for the petitioner
drew the attention of this court towards
the provisions of Section 34 of the
Securitisation Act which bars the Civil
Court or other authority to entertain such
complaint and take action. Section 34 is
extracted below;
1 All Housing Development Finance Corp. Ltd.Vs.District Consumer Disputes Redressal forum(I) 517

"Civil
Court
not
to
have
jurisdiction :- No civil court shall have
jurisdiction to entertain any suit or
proceeding in respect of any matter which
a Debts Recovery Tribunal or the
Appellate Tribunal is empowered by or
under this Act to determine and no
injunction shall be granted by any court or
other authority in respect of any auction
taken or to be taken in pursuance of any
power conferred by or under this Act or
under the Recovery of Debts Due to
Banks and Financial Institutions Act,
1993.'

5. He also cited decision as follows;

Nihar
Industrial
Enterprises
Limited Vs. Hong Kong and Shanghai
Banking
Corporation,
reported
in
(2009) 8 Supreme Court Cases 646.

6. In this case the Hon'ble Supreme
Court framed following question for
determination;

" Whether the High Court/or this
Court has power to transfer a suit pending
in the civil court situated in one State to
Debts Recovery Tribunal situated in
another State?

7.

Hon'ble
Supreme
Court
considered various provisions of the Code
of Civil Procedure, Securitisation Act as
well as Recovery of Debts Due to Banks
and Financial Institutions Act, 1993
(hereinafter referred to as Debt Recovery
Act) and discussed in detail about their
jurisdiction to deal with the case arising
out of the Debt Recovery Act. In this case
Hon'ble the Supreme Court also discussed
about the jurisdiction of the Civil Court
and held that the jurisdiction of the Civil
Court would be ousted in respect of the
matters which relates to a debt payable to
a Bank or Financial Institutions. He also
cited a judgment of this Court i.e.
Allahabad Bank Moti Bagh, Faizabad
Vs. Bipin Behari Lal Srivastava and
others, reported in 2009(27) LCD 1666.
In this case this Court considered the
several judgments of the Hon'ble Supreme
Court and ultimately held that it is only
Debt Recovery Tribunal which has
jurisdiction to take cognizance of such
matter.

8. In reply without disputing the
proposition of law laid down by Hon'ble
the Supreme Court as well as by this
Court, the learned counsel for the
respondents submitted that he has not
challenged any proceeding of Recovery of
Debt rather he has moved an application
to return his record being consumer of the
Bank. Therefore, the same is well
maintainable. However, upon perusal of
the facts I am of the view that
substantially the petitioner has invoked
the jurisdiction of the District Consumer
Forum to interfere in the proceeding of
Recovery of Debt posing as he has
cleared of dues, whereas still the loan is
due. Therefore, I am of the view that
petitioner's complaint is also based on
concealment of facts. He has not
approached the District Consumer Forum
with clean hands. Besides it, I am further
of the view that since substantially the
matter relates to recovery of debt, the
District Consumer Forum lacks the
jurisdiction.

9. Therefore, the orders impugned
are hereby quashed. The writ petition
stands allowed. However, respondent's
right to approach the appropriate forum
518 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
against the proceeding of Recovery of
Debt is not interfered with.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.04.2013

BEFORE
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.

U/S 482/378/407 No. 1672 Of 2011

Abdul ...Petitioner
Versus
The State of U.P. And Another Respondents

Counsel for the Petitioner:
Sri Parijaat Belaura

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section-482-
Quashing
of
proceeding-offence
under
section-401-argument that if allegation
taken to be true on its face value-no offence
made out against applicant-as no allegation
of habitual offender-held-the word "other
gang person-denotes the gang with whom
applicant
associated-involved
in
commission of theft-application rejected.

Held: Para-16
The aforesaid view of this Court was
expressed with reference to the Goonda
Act in which the word habitual is used
with regard to an individual and not with
reference to a gang. But in view of the
provisions of Section 401 I.P.C., word
habitual has been used with reference to
a gang who habitually deals in theft or
roberry.
This
fact
has
not
been
challenged by any other accused who
was in the company of gang alongwith
present applicant at the relevant time.
Hence there was sufficient evidence that
the applicant was associated with a gang
who habitually committed offence of
theft
by
administering
narcotic
substance on the passenger of the train.

Case Law discussed:
1912, Cr./L.J.R. Page 539; air 1992 SC 604;
1990, 4 SCC Cases 552; (1984) 3 SCC 14;
(1995) 3 SCC 237

(Delivered by Hon'ble Surendra Vikram
Singh Rathore, J.)

1. By means of this application
under Section 482 Cr.P.C., the applicant
has made prayer to quash the charge sheet
no.- 182 of 2010 arising out of Case
Crime No.-338 of 2010 under Section 401
I.P.C., P.S. G.R.P. Charbagh, Lucknow
and entire proceedings pending in the
Court of Chief Judicial Magistrate,
Northern Railway, Lucknow.

2. In brief the facts giving arise to
the present application are that on
9.7.2010 at about 22:15 hours, the police
force of G.R.P. Charbagh received a
secret information that a gang of thieves
is present behind the Hanuman Temple,
then police party reached there and after
hearing their conversation they were
confirmed that it was a gang of thieves
and thereafter police party apprehended
three persons on the spot and on
interrogation these persons disclosed that
by administering narcotic powder, they
used to commit theft of the belongings of
the passengers of trains. The apprehended
accused persons were searched by the
police in accordance with law and
thereafter the present applicant was found
in possession of the narcotic powder and
the other accused Rajesh Chandra Joshi
was also found in possession of narcotic
powder and also one unlicensed knife.
Three cases under different sections were
registered against the accused persons.
Case Crime No.-338 of 2010 under
Section 401 I.P.C. was registered against
the accused persons in which after