Thirty days’ notice to borrower before sale of asset
Hon’ble Dipak Misra, A.M. Khanwilkar and M.M. Shantanagoudar, JJ., have held that the secured creditor, after it decides to proceed with the sale of secured asset consequent to taking over possession (symbolic or physical, as the case may be), is no doubt required to give a notice of 30 days for sale of the immovable asset as per sub-rule (6) of Rule 8. However, there is nothing in the Rules, either express or implied, to take the view that a public notice under sub-rule (6) of Rule 8 must be issued only after the expiry of 30 days from issuance of individual notice by the authorized officer to the borrower about the intention to sell the immovable secured asset. In other words, it is permissible to simultaneously issue notice to the borrower about the intention to sell the secured assets and also to issue a public notice for sale of such secured asset by inviting tenders from the public or by holding public auction. The only restriction is to give thirty days’ time gap between such notice and the date of sale of the immovable secured asset.
The High Court has committed a manifest error in assuming that the notice of intention of sale to be given to the borrower and a public notice for sale cannot be simultaneously issued. The High Court was also not right in observing that after a notice regarding intention to sell the secured asset under sub-rule (6) of Rule 8 is given by the authorized officer to the borrower, only on expiry of 30 days therefrom can the secured creditor take a decision about the mode of sale referred to in sub-rule (5) of Rule 8 after giving notice to the borrower and then issue a public notice after expiry of further thirty days. By this interpretation, the High Court has virtually re-written the provisions and inevitably extended the time frame of 30 days specified in sub-rule (6) of Rule 8 (at least in relation to the sale of secured asset by inviting tenders from the public or by holding public auction).
It is therefore held that only restriction placed on the secured creditor is to serve a notice of 30 days on the borrower intimating him about its intention to sell the immovable secured asset and the mode and date fixed for sale; and also to issue a public notice in two leading newspapers, if the sale of such secured asset is effected either by inviting tenders or by holding public auction, notifying the date of sale after 30 clear days from such notice. There is no need to wait for the expiry of 30 days from issuance of notice of intention to sell the secured asset given to the borrower, for publication of a public notice for sale of such asset. Nor is there any requirement to give a separate individual notice prior to deciding on the mode of sale of the secured asset. To the above extent, the opinion of the High Court in the impugned judgment will have to be overturned.
Canara Bank v. M. Amarendra Reddy, 2017 (175) AIC 21 (SC)
Trial Court has unfettered power to call police diary
Hon’ble Dipak Misra, A.M. Khanwilkar and M.M. Shantanagoudar, JJ., have held that coming to the use of police diary by the accused, sub-section (3) of section 172 clearly lays down that neither the accused nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by the Court. But, in case the police officer uses the entries in the diaries to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, then the provisions of sections 145 and 161, as the case may be, of the Evidence Act would apply. Section 145 of the Evidence Act provides for cross-examination of a witness as to the previous statements made by him in writing or reduced into writing and if it was intended to contradict him in writing, his attention must be called to those portions which are to be used for the purpose of contradiction. Section 161 deals with the adverse party’s right as to the writing used to refresh memory. It can, therefore, be seen that, the right of the accused to cross-examine the police officer with reference to the entries in the police diary is very much limited in extent and even that limited scope arises only when the court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory.
The police diary is only a record of day to day investigation made by the investigating officer. Neither the accused nor his agent is entitled to call for such case diary and also are not entitled to see them during the course of inquiry or trial. The unfettered power conferred by the Statute under section 172(2) of Cr.P.C. on the court to examine the entries of the police diary would not allow the accused to claim similar unfettered right to inspect the case diary.
The provision embodied in sub-section (3) of section 172 of the Cr.P.C. cannot be characterised as unreasonable or arbitrary. Under sub-section (2) of section 172, Cr.P.C. the court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. The legislature has reposed complete trust in the court which is conducting the inquiry or the trial. It has empowered the court to call for any such relevant case diary; if there is any inconsistency or contradiction arising in the context of the case diary the court can use the entries for the purpose of contradicting the police officer as provided in sub-section (3) of section 172 of the Cr.P.C. Ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. No court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries. In view of this safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutiny. The petitioners claim an unfettered right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer concerned to refresh his memory or regardless of the fact whether the court has used these entries for the purpose of contradicting such police officer. It cannot be said that unless such unfettered right is conferred and recognized, the embargo engrafted un sub-section (3) of section 172 of the Cr.P.C. would fail to meet the test of reasonableness.
Balak Ram v. State of Uttarakhand, 2017 (175) AIC 101 (SC)
Sale of Wakf property without permission of Board is void
Hon’ble R.K. Agrawal and A.M. Sapre, JJ., have held that in the first place, the main question involved in the suit was whether the suit land is a Wakf property or not. Plaintiff says that it is a Wakf property whereas the defendants say that it is not the Wakf property but it is their self property. This question, in our opinion, can be decided only by the Tribunal and not by the Civil Court as has been decided by this Court consistently in Ramesh Gobindram v. Sugra Hamayun Mirza Wakf; and Bhanwar Lal and another v. Rajasthan Board of Muslim Wakf and others). Second, once the property is declared to be a Wakf property, a fortiori, whether the sale of such property is made by a person not connected with the affairs of the Wakf or by a person dealing with the affairs of the Wakf, the same becomes void by virtue of section 51 of the Act unless it is proved that it was made after obtaining prior permission of the Board as provided under the Act. One cannot dispute that the matters falling under sections 51 and 52 of the Act are also required to be decided by the Tribunal and hence jurisdiction of the Civil Court to decide such matters is also barred by virtue of provisions contained in section 85 of the Act.
In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the High Court as we find that the High Court while deciding the question did not examine the question in its proper perspective keeping in view the aforementioned provisions, their scope and the law laid down in the cases referred supra.
Section 51 of the Act provides that notwithstanding anything contained in the Wakf Deed, any gift, sale, exchange or mortgage of any immovable property, which is a Wakf property, shall be void unless it is effected with the prior sanction of the Board. Section 52 of the Act empowers the Board to approach the Collector of the District to obtain possession of such Wakf property, which is alienated in contravention of section 51 or section 56 of the Act. It also provides a right of appeal to the Tribunal against the order of the Collector passed under section 52(2) of the Act. Section 54 of the Act provides that the Chief Executive Officer to approach the Tribunal to seek an order of eviction against any encroacher of the Wakf property.
Section 83 of the Act empowers the Tribunal to determine any dispute, question or other matter relating to a Wakf or Wakf property under this Act. Section 85 of the Act which deals with the Bar of jurisdiction of Civil Court provides that no suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by the Tribunal.
Rajasthan Wakf Board v. Devki Nandan Pathak, 2017 (175) AIC 125 (SC)