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Judgment
Honourable Ms. Sonia Gokani, J.—Applicant has preferred this application seeking clarifications in respect of the directions issued by this Court vide its common order dated 31st January, 2011 passed in Letters Patent Appeal (for short "LPA") No. 735 of 2008 in Special Civil Application No. 9066 of 2008 with Civil Application No. 8493 of 2008 and LPA No. 736 of 2008 with Civil Application No. 8494 of 2008 in LPA No. 736 of 2008 with SCA No. 9067 of 2008. Applicant preferred SCA No. 9066 of 2008 inter alia challenging the order passed by the Drug Prices Liabilities Review Committee dated 5th October, 2005 and order dated 27th January, 2006, issued by the opponent accepting such report and thereby raising demand of Rs. 6,76,09,865/- on the applicant.
Yet another SCA No. 9067 of 2008 was preferred by the present applicant challenging the order of the said committee in case No. 4 of 1995 and the order of opponent of the even date accepting the report and raising demand of Rs. 84,13,143/-.
Aggregate amount thus in both the petitions involve the sum of Rs. 7,60,23,008/-and by a common order dated 8th July, 2008, both these Special Civil Applications were admitted by the learned Single Judge. However, when requested for stay of such demands, the same had been denied.
LPA No. 735 and 736 of 2008 were preferred challenging the said order of learned Single Judge. In LPA No. 735 of 2008, on the condition of deposit of sum of Rs. 2,05,35,575.04 ps. and in LPA No. 736 of 2008, on condition of deposit of Rs. 30,30,230/-stay against recovery has been granted. Pursuant to the direction of the Court aggregate amount of Rs. 2,35,65,805.04 /-has been deposited by the applicant by way of demand draft dated 27th August, 2008.
In the mean time, on the basis of directions of the opponent vide its communication dated 31st July, 2007, addressed to Collector, Vadodara, Mamalatdar, Vadodara City attached the land of the present applicant admeasuring 10,000 sq. meters bearing Revenue Survey No. 54/A/1situated at Wadi Vadi, Vadodara. Pursuant to the order of Collector, Vadodara dated 17th March, 2008. Vide order dated 21st October, 2008, attachment was shifted to land admeasuring 73,451/-sq.mtrs bearing Revenue Survey No. 122, 108/B/1, 108/B/2, 111/B and 112/B/1 situated at Subhanpura, Vadodara (To be referred to hereinafter as "the said land'') hereinafter.
On 31st January, 2011 at the time of hearing of this LPA, Applicant through its advocate expressed willingness to pay 50% of the remaining demanded amount by February, 2011 and for the rest of the 50% bank guarantee was offered by 15th March, 2011. In wake of such statement, Court directed deposit of sum of Rs. 2,62,28,601.50/-being 50% of rest of the due amount by 15th February, 2011 and furnishing the bank guarantee for the remaining 50% of amount. Further direction given is to an effect that, in the event of fulfillment of direction of deposit and furnishing of bank guarantee as stipulated, the attachment shall be lifted by the revenue authorities subject to outcome of the writ petitions. LPAs and Civil Applications were disposed of in the said terms.
It is say of the applicant that in due compliance of these directions demand draft NO. 044194 dated 12th February, 2011 of Rs. 2,62,28,601.50 along with original bank guarantee No. 20231FIBG11000 have been furnished.
Opponent while giving acknowledgment, called upon the applicant to furnish modified bank guarantee and amendment has been submitted by the applicant on 24th June, 2011.
It is averred by the applicant that after such compliance several communications were exchanged with Collector, Vadodara. By letter dated 28th July, 2011, Collector, Vadodara requested the opponent to issue necessary instructions in respect of attachment of the properties of applicant-company and vide its order dated 20th October, 2011, Collector Vadodara directed the Mamlatdar, Vadodara City to lift the attachment of the said lands with further direction to continue the charge on the said lands with respect to the balanced dues of the Govt. of India.
Mamlatdar, Vadodara City consequentially passed an order dated 21st October, 2011 directing that the charge on the said land shall not be lifted till final decision in the pending proceedings and only the attachment on the said lands thus has been lifted.
Aggrieved by such direction of continuation of charge on the land this application has been preferred. It is urged by the applicant that though entire amount of demand for which the land was attached is made secured, the revenue authorities interpreted the order in truncated manner to continue the charge on the properties when in fact it was intended that the land shall be free from all encumbrances.
In the above-mentioned background, applicant prays to clarify the order dated 31st January, 2011 with the following prayer :
14-A. That the Hon''ble Court be pleased to pass an order clarifying that under order dated 31.1.2011 passed in Letters Patent Appeal No. 735 of 2008 in Special Civil Application No. 9066 of 2008 with Civil Application No. 8493 of 2008 in Letters Patent Appeal No. 735 of 2008, the Revenue Authorities are required to lift the attachment as well as the charge on the said lands subject to decision of the writ petitions.
On having heard learned senior advocate Mr. Mihir Thakore with ld. advocate Ms. Megha Jani appearing for the applicant and learned advocate Mr. Anshin Desai appearing for the opponent and on having examined the correspondence and other relevant materials, it can be noted that there is no dispute with regard to the fact that pursuant to the direction issued by this Court on 31st January, 2011, applicant has deposited the sum of Rs. 2,62,28,601.50/-which is 50% of the rest of the due amount (after the initial deposit of Rs. 2,35,65,805.04 on 27th August, 2008) paid by demand draft No. 044194 and for remaining 50% amount bank guarantee No. 20231FIBG11000 dated 12th February, 2011 has been tendered in favour of the opponent. Such bank guarantee subsequently at the behest of the opponent has been modified and the same also has been communicated to the opponent vide letter dated 24th June, 2011. It further emerges from record that applicant addressed various communications to the Collector, Vadodara as well as to the Department of Pharmaceuticals, Ministry of Chemicals and Fertilizers, New Delhi. It has been reiterated in these communications that applicant has fully complied with the directions of this Court and therefore, request is reiterated inter alia to direct Mamalatdar, Vadodara City to lift the attachment and charge both on the said land.
There also appears communication in turn from Collector, Vadodara addressed to the Department of Pharmaceuticals, New Delhi dated 28th July, 2011, acknowledging the compliance of the order of High Court by the applicant with further request to issue the clear instructions as to whether the attachment on the property of the company should be removed or not. There does not appear to be any correspondence on record from the Ministry of Chemicals and Fertilizers, New Delhi giving specific direction in this respect. Communication under challenge is dated 20th October, 2011 addressed to the Mamlatdar, Vadodara City by Collector, Vadodara whereby he has directed Mamlatdar to lift the attachment but continue the charge on the said property, till the final decision of the proceeding pending before this Court.
Pursuant to such directions, Mamlatdar, Vadodara City by an order dated 21st October, 2011 as mentioned hereinbefore lifted the attachment, however, charge on the said land was directed to be continued till final decision. By yet another communication dated 3/4.1.2012, Mamlatdar also further shifted the said charge to the lands bearing Survey No. 122, City Survey No. 1101 & 1100/A.
On careful examination of the entire material as also common order passed by this Court on 31st January, 2011, it can be noted that learned counsel appearing for and on behalf of Union of India had initially opposed at the relevant time, the deposit of bank guarantee as well as 50% of the amount towards the principal amount on the ground that such interim order would amount to grant of final relief however, such submissions were not accepted by this Court.
It needs to be noted that in the aforementioned background, the request of the present applicant-original appellant to deposit 50% of amount by cash and 50% of amount by furnishing bank guarantee was accepted. The revenue authorities was also directed to lift the attachment if such amount was deposited, of course, subject to the final decision of writ petitions.
The whole object of attachment is to ensure that if the creditor ultimately prevails, he can be assured of recovering on the judgement through the sale of the seized property. Thus, in any prejudgement attachment where the debtor''s property is attached, the central idea is of the recovery of amount on sale of the attached property. By continuing the charge on the said land would amount to impose a lien or claim or to encumber-charge the land with a tax lien (Black''s Law Dictionary, Eighth Edition.) And thus, lifting the attachment but continuing the charge would not eventually free land and no purpose can be served in directing deposit of cash amount of 50% demand as also in furnishing bank guarantee for the remaining 50% of the amount.
It is true that the proceedings in terms of Special Civil Applications are pending and order passed in both the Letters Patent Appeals is subject to the final decision of writ petitions. With total amount having been secured and yet, no direction having been issued by the said department despite communication made by the Collector, it is being clarified that revenue authorities are directed to lift the charge on the said land, as mere lifting of attachment may not subserve the very object of passing the order sought to be clarified.
While issuing direction on 31st January, 2011, an attempt was to secure the amount even when ultimately applicant''s challenge to demand notices fail. However, while zealously guarding such right of the opponent, Government authorities can not be allowed to deny the applicant enjoyment of its property once the applicant agreed to secure the total dues of opponent by deposits of demand draft and bank guarantee both, with no opposition to such arrangement by other side. Resultantly, this application succeeds directing the revenue authorities to lift the attachment as well as the charge on the said land. All directions are subject to the final decision of the writ petition.