Shri Piyush Khimjibhai Shah and Ors vs Tata Capital Housing Finance Ltd on 14 July 2023

(1) SHRI SACHIN PHATAK &

(2) SHRI SHRIKANT AWASTHI, THE AUTHORISED OFFICERS, TATA CAPITAL HOUSING FIN. LTD. 4^TH FLOOR, SHANTI ANNEX, OPP: B.D. PATEL STATUE, NARANPURA, AHMEDABAD-380013.

(3) SHRI A.B. GOR, DISTRICT MAGISTRATE, OFFICE OF DISTRICT MAGISTRATE, JILLA SEVA SADAN, KOTHI, RAOPURA, VADODARA-390001.

(4) SHRI K.A. SHIKARI, MAMLATDAR, OFFICE OF MAMLATDAR, VADODARA CITY (NORTH) SAMA ROAD, SAMA TALAV, RAGHUVIR NAGAR, KASTURBA NAGAR, NEW SAMA, VADODARA-390024.

(5) MS. (JUSTICE) VAIBHAVI NANAVATI, HON'BLE JUDGE, HIGH COURT OF GUJARAT, S.G. ROAD, SOLA, AHMEDABAD.

(6) THE REGISTRAR, DEBTS RECOVERY TRIBUNAL – II, BHIKHUBHAI CHAMBERS, NR. KOCHRAB ASHRAM, AHMEDABAD.

..... Respondents

**Appearance:**

None present for the Appellant

2CHAMBER APPEAL NO. 05 OF 2023ORDER

1. 1. The Appellant has filed the present Chamber Appeal against the order dated 20/05/2023 passed by Ld. Registrar, DRT-II, Ahmedabad declining registration of the proposed SA on the account of the fact that the Appellant herein has joined the District Magistrate, Mamlatdar and Hon'ble Ms. Justice Vaibhavi Nanavati as party Respondents in their personal capacity or in official capacity.

2. 2. It appears from the record that Registry placed this matter for hearing before this Tribunal for the first time on 16/06/2023. On that day, none appeared on behalf of the Appellant. However, considering the effect of cyclone and in view of the resolution passed by DRT Bar Association, the case was adjourned for hearing to 30/06/2023 in the interest of justice. On 30/06/2023 also, neither the Appellant nor his Ld. Counsel remained present before this Tribunal. As such, the Appellant does not appear to be interested in proceeding with the matter. The present appeal, therefore, deserves to be dismissed on the ground of default in prosecuting the case on the part of Appellant alone. However, this Tribunal thinks it fit to look at the merits of the case even in absence of the Appellant or his Ld. Counsel.

3. 3. The Appellant lodged the proposed SA before office of this Tribunal on 27/04/2023 vide Diary No.757/2023. At the stage of admission and scrutiny, Registry made following remarks:

*"Appeal against the order dated 20.5.2023 of registrar. The applicant had made Ms. Justice Vaibhavi Nanavati Hon Judge of Gujarat High Court, District Magistrate and Mamlatdar party in their personal capacity and did not remove them from array of the parties."*

4. 4. It appears that the Appellant herein and other Applicants of the proposed SA filed their reply to the aforesaid objections raised by Registry against registration of the SA. On perusal of the reply filed by the Appellant and others, it appears that the Appellant has tried to justify the action of impleading District Magistrate, Mamlatdar and Hon'ble Judge of the High Court in their individual capacity, relying upon the provisions of Section 79 of CPC, Section 197 of CrPC and Section 19 of the Prevention of Corruption Act, 1988.

1. 5. The practice of impleading Judicial Officers as Respondents is deprecated by the Hon'ble Apex Court in **Savitri Devi v. District Judge, Gorakhpur, (1999) 2 SCC 577**. The Hon'ble Apex Court held that impleading the judicial officers as contesting respondent amounts to unnecessary disturbance to the functions of the judicial officers concerned. The observations made by the Hon'ble Apex Court are reproduced hereunder:- *"14. Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the special leave petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the special leave petition, they are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the special leave petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the judicial officers concerned. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or special leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice."*

1. 6. **In Fakeerappa v. Karnataka Cement Pipe Factory, (2004) 2 SCC 473**, the Hon'ble Apex Court held that impleadment of the High Court of Karnataka and Supreme Court by the petitioner was held to be gross abuse of process of law. The Supreme Court held as under:

*"10. Before we part with the case we think it necessary to point out a somewhat shocking state of affairs which came to our notice. In the claim petition filed before the Tribunal, this Court and the High*

*Court of Karnataka, Bangalore were impleaded as respondents for no sensible reason, and in gross abuse of process of law, though by hindsight the absurdity seems to have been set right by ordering deletion. Though these parties were given up during adjudication, it is clear that the claim petition was filed without any application of mind by the counsel concerned as to who would be proper or necessary party or even a formal party and great sense of responsibility is expected to be exhibited by those concerned. At least while impleading a party in a claim petition, proper attention ought to be devoted which sadly was not done."*

7. It appears that in Para 5.9 and 5.10 of the Memo of SA, the Appellant has made following averments:

*"(5.9) Applicants brought the entire facts, as stated above to the notice of Respondent No.4 (with a copy each of the orders Nos.114 and 115 – 2021-2022 dt.25.5.22) vide their notice dated 1.6.2022 since Respondent No.4 did not pay any heed to the contents of notice dt.1.6.22 and allowed Respondent No.1 to withdraw it on 30.6.2022, Applicants have filed a complaint on 4.7.2022, against the Hon'ble Judge of High Court and others, to CBI, Gandhinagar with a copy to H.E. President of India, who is sanctioning Authority for a High Court Judge, for the purpose of Prevention of Corruption Act, 1988.*

*(5.10) Govt. Gujarat. has since forwarded a copy of notice dated 1.6.2022 to High Court of Gujarat vide their letter dt.4.8.22. It is submitted that High Court has no role to play in this."*

8. From the above averments, it becomes clear that the Appellant herein has filed a complaint against Hon'ble Judge of High Court and others before CBI under the provisions of Prevention of Corruption Act, 1988. The Appellant has made such averments in the SA as a part of his strategy to exert undue pressure on this Tribunal. The Act of impleading Hon'ble Judge of High Court, in personal capacity and by name, itself amounts to contempt of Court in view of the aforesaid observations of the Hon'ble Apex Court.

9. It is observed by this Tribunal that Ld. Counsel Mr. Devesh Bhatt is in the habit of joining Judicial Officers and other Statutory Authorities, in their personal capacity, as parties in the cases filed by him. Recently, he had filed SA No.212 of 2023 before this Tribunal wherein he impleaded Additional Chief Magistrate, Vadodara, Court Commissioner appointed by the Magistrate for execution of his order and the Hon'ble Chief

Minister of the State of Gujarat, by name. This Tribunal was constrained to pass order dated 03/07/2023 for deletion of all the said three Respondents from the proceedings of SA No.212 of 2023.

1. 10. In light of the aforesaid discussion, it becomes clear that the objection raised by Ld. Registrar against impleadment of unnecessary parties in the proceedings is required to be upheld and the action of declining registration of the proposed SA (vide Diary No.757 of 2023) containing the aforesaid three Respondents deserves to be upheld. As stated hereinabove, neither the Appellant herein nor his Ld. Counsel cared to remain present before this Tribunal for hearing of this Appeal despite giving sufficient and reasonable opportunity.

2. 11. In light of the aforesaid observations of the Hon'ble Apex Court, the Act of the Appellant herein to implead Judicial Officer, Mamlatdar and Hon'ble Ms. Justice Vaibhavi Nanavati, all of them by name, as Respondents in the proceedings is highly disapproved and deprecated.

3. 12. In view of what is stated hereinabove, this Tribunal is of the opinion that the present Appeal has no merits and accordingly it is hereby dismissed.

4. 13. Registry is directed to send a copy of this order to Registrar General, High Court of Gujarat, Sola, Ahmedabad with a request to place this before Hon'ble Chief Justice, Gujarat for information and necessary action in the matter.

File be consigned to records.

Pronounced in open Court on this 14^th day of July, 2023.

**(Laxman Madnani)** **Presiding Officer** **DRT-II, Ahmedabad**

\*sruthi\*