NITIN GUNWANT SHAH versus INDIAN BANK & ORS.

Citation: [2012] 10 S.C.R. 38 · Decided: 10-07-2012 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Dismissed

Judgment (excerpt)

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[2012] 10 S.C.R. 38 
NITIN GUNWANT SHAH 
v. 
INDIAN BANK & ORS. 
(SLP (Civil) No. 22785 of 2010) 
JULY 10, 2012 
[ALTAMAS KABIR, GYAN SUDHA MISRA AND 
J. CHELAMESWAR, JJ.] 
Constitution of India, 1950 - Article 136 - Suit by 
petitioner against owners of the disputed property for 
declaration as a monthly tenant - Petitioner also claims to 
have entered into agreement of Leave and Licence with the 
owners of disputed property - Suit dismissed for non-
prosecution - Suit by Bank against owners of the property for 
recovery of dues from them and on failure to pay the dues, 
permission sought to sell the property in dispute and to utilize 
the sale proceeds for satisfaction of the dues - Bank also 
made the petitioner a party to the suit and sought his eviction 
from the property declaring him a trespasser - Suit of Bank 
transferred to Debts Recovery Tribunal - Tribunal allowed 
claim of the Bank qua the owners of property - However, 
refused to decide the claim qua the petitioner as it lacked 
jurisdiction to give such relief - Petitioner filing second suit, 
13 years after dismissal of his first suit, against the owners of 
property and the Bank, seeking the same relief and 
declaration as sought in the first suit - Second suit still 
pending - Attachment warrant issued in respect of the property 
for recovery of dues - Petitioner's objection, that sale should 
be subject to his tenancy right, rejected - Writ petition of 
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petitioner disposed of holding that if petitioner would not get 
any interim protection in his second suit, he could be 
dispossessed - On appeal, held: Per Chelameswar, J: The 
petitioner, though in possession, the nature of his right to be 
in possession, mode of acquiring the possession and legal 
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character of his possession are yet to be decided - The same 
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NITIN GUNWANT SHAH v. INDIAN BANK & ORS. 
39 
can be decided by appropriate forum in appropriate 
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proceeding - Such determination not permissible in exercise 
of jurisdiction under Article 136 - The person in possession 
as a tenant, or a licencee or a trespasser can be evicted only 
in accordance with the procedure established by Law - The 
procedure for eviction of such person is provided under CPC 
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and alternative procedure is provided under ss. 25, 29 of 1993 
Act and also Rules 39, 40, 41, 42 and 43 under Income Tax 
Rules - In the instant case, the sale of the property of the 
judgment-debtors (owners of property) is in pursuance of the 
procedure established by law - Petitioner's possession of the c 
disputed property cannot be protected in exercise of 
jurisdiction under Article 136 - Bank is at liberty to proceed 
with the sale of the property - Petitioner, even if loses 
possession of the property, can seek restitution of possession, 
if he succeeds in the suit for declaring him as tenant - Per 0 
Kabir, J: The second suit by the petitioner was barred u/O. 
23 r. 1(4) CPC - The petitioner who abandoned his first suit 
for declaration as tenant cannot take advantage of the lapse 
viz. suit of Bank was transferred to Tribunal who had no 
jurisdiction to adjudicate upon declaring the petitioner as 
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trespasser - Code of Civil Procedure, 1908 - Or. 21 r. 98 and 
Or. 23 r. 1 (4) - Recovery of Debts Due to Banks and Financial 
Institutions Act, 1993 - ss. 25 and 29 - Income Tax Certificate 
Proceedings Rules, 1962 - rr. 39, 40, 41, 42 and 43. 
Petitioner's claim was that he entered into a 'Leave 
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and Licence' agreement dated 6.5.1989 with respondent 
Nos. 4 and 5, whereby the property in dispute was given 
on lease to the petitioner. On 23.2.1990, he took the 
possession of the property. A few days thereafter, the 
petitioner filed Suit No. 1719/190 before Small Causes 
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Court against respondent Nos. 4 and 5 for a declaration 
that he was a monthly tenant in respect of the disputed 
property. The Court, by an interim order directed both the 
parties to maintain status quo. However, the Suit was 
dismissed by order dated 19.2.1993 for non-prosecution. 
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SUPREME COURT REPORTS 
[2012) 10 S.C.R. 
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In the meantime, the respondent-Bank filed suit No. 
3038/1992 in the High Court against respondent Nos. 2 
to 5 and the petitioner. The case of the Bank was that 
respondent No. 4 had taken overdraft facility from the 
Bank and had failed to pay the amount. The Bank sought 
B for the recovery of the amount. It also sought a 
declaration that the amount claimed was secured by a 
mortgage of the proper

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