JUDGMENT <NAME>, J.

1. This is a petition under Article 226 of the Constitution arising out of proceedings under the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act).

2. One Smt. <NAME> died leaving some grove and agricultural plots which she had inherited from her husband. She had acquired Bhumidhari rights in respect of the agricultural plots before her death. During the consolidation proceedings <ORG>, <NAME> moved an application before <ORG> claiming that as Smt. <NAME> had died heirless her entire holding vested in <ORG>. The original petitioners <NAME> and <NAME> filed objection laying claim to the estate of the deceased widow on the basis of:--

(i) inheritance being her husband's brother's son's sons:

(ii) Will executed by Smt. Dhanraj Kuer on 12-10-1962 in favour of <NAME>:

(iii) Registered sale-deed dated 4-4-1963 executed by Smt. <NAME> in respect of her entire holding including groves in favour of the petitioners. The petitioners' objection was rejected and the claim of <ORG> was upheld. The appeal filed by the petitioners was dismissed by the Settlement Officer (Consolidation) and their revision under Section 48 of the Act was also dismissed by the Deputy Director of Consolidation by his order dated 26-3-1966. The petitioners then moved the present writ Petition.

3. When the Writ Petition came up for hearing before <NAME>, J., he noticed that one of the questions that arose in the case was as to whether the widow was competent to transfer the whole of her agricultural holding without the prior permission of the Settlement Officer (Consolidation) as required by Section 5 (1) (c) (ii) of the Act.

4. Section 5 (1) (c) (ii) of the Act enacts that no tenure-holder, except with the permission in writing of the Settlement Officer (Consolidation) previously obtained shall transfer by way of sale, gift or exchange any part of his holding in the consolidation area. Full Bench of this court in <CITATION> at Hardoi, AIR 1971 All 87 (FB), has taken the view that the expression "any part of his holding" did not include the entire holding so that the ban applied only where a part of holding was transferred and not when the holding was transferred as a whole.

The learned Judge noticed the Hindi version of Section 5 (1) (c) (ii) of the Act which reads:

"NA CHAKBANDI KSHETTRA ME SAMMILIT APKI JOT ATHWA USKE KISHI BHAG KO VIKRAYA DAN ATHWA BINIMAY DWARA HASTAN-TRIT KAREGA."

According to the Hindi version the ban would apply as much to the transfer of a part of the holding as to the whole. In his opinion the words in the English version were not clear and it was possible to interpret them in accordance with the Hindi version of the enactment. He accordingly referred the matter to <ORG> and that is how this petition has come up before us.

5. To begin with, we might state that although the learned Judge has not indicated as to whether the entire case has to be decided by <ORG> or only the question relating to the interpretation of Section 5 (1) (c) (ii) of the Act, yet having regard to the fact and the circumstances of the case the intention of the learned Judge was to refer only the limited question relating to the interpretation of Section 5 (1) (c) (ii) and not the whole case, because even if the petitioners fail on this ground their alternative pleas will have to be examined. We shall accordingly restrict ourselves to the short question as to whether the ban incorporated in Section 5 (1) (c) (ii) applies to the transfer of an agricultural holding as a whole or applies only when a part of the holding is transferred. Clause (c) of Section 5 (1) was added in the Act by Section 4 of the U. P. Consolidation of Holdings (Amendment) Act, 1958 (U. P. Act XXXVIII of 1958) and reads as under:--

"(c) Notwithstanding anything contained in the U. P. Zamindari Abolition and Land Reforms Act, 1950, no tenure-holder, except with the permission in writing of the Settlement Officer Consolidation previously obtained shall-

(i) Use his holdings or any part thereof for purpose not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming; or

(ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area;

Provided that a tenure-holder may continue to use his holding, or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued under Sub-section (2) of Section 4 ."

It may at once be noticed that Clause (ii) is flanked by Clause (i) and the proviso at the end of Clause (ii). Clause (i) and the proviso deal with the ban on non-agricultural use of a holding while Clause (ii) imposes a ban on the transfer of a holding. In Clause (i) the expression used is "holding or any part thereof". The same expression is used in the proviso, which in fact, is a proviso to Clause (i) so that ban on the user of agricultural holding for non-agricultural purpose extends to the holding as a whole as also to a part thereof. But when we come to Clause (ii) the expression used is "any part of his holding". Obviously the ban contemplated under Clause (i) is not co-extensive with the ban contained in Clause (ii) otherwise there is no reason why the expression "holding or any part thereof" should not have been used in Clause (ii) also. The expression "holding or any part thereof" is not synonymous with the expression "any part of the holding" if regard is had to the jurisdiction of Clause (ii). If Clause (ii) had stood alone it could be possible to interpret the expression "any part of the holding" as meaning every part of the holding. But having regard to the terminology employed in the preceding clause and the succeeding proviso, no other meaning can be assigned to it except that it means "a part" as distinguished from 'the whole': It is true that grammatically, the expression "a part" would have been more apt than the expression "any part". But when the intention of the <ORG> is clear, nothing will turn upon this grammatical error. According to the dictionary meaning also "any" is sometimes used for the adjective "a". It is not necessary, however, to dwell upon this point any further because the question has been the subject-matter of previous decisions of this court which have unanimously interpreted the expression "any part" to mean "a part". The first decision is of <NAME>, J., in <CITATION> , 1966 All WR (HC) 818 His Lordship held that the prohibition in Clause (ii) of Section 5 (1) (c) extended to the transfer of a part of the holding and not to the whole holding so that the whole holding could be transferred by a tenure-holder without the permission of the Settlement Officer (Consolidation). This decision has been affirmed on special appeal by <NAME>, <NAME> and <NAME>, J., in <NAME> v. <NAME>, 1968 All LJ 223. The question was again considered by another <ORG> of which two of us were members in the case Smt. <NAME>, AIR 1971 All 87 (<NAME>) when the view taken in the earlier cases was affirmed. There is yet another decision of a <ORG> of this court consisting of <NAME>, <NAME>, and <NAME>, JJ., in <CITATION> , 1970 RD 130. <ORG> agreed with the view taken by the earlier <ORG> in the case of Smt. <NAME> (<NAME>). Thus so far this court is concerned, the matter stands concluded.

6. If one has regard to the object underlying the provisions in question it becomes quite clear as to why the ban in Clauses (i) and (ii) is not co-extensive. The object underlying Clause (i) is to preserve the land for agricultural purposes and that is why a complete ban has been placed on the use of the land for non-agricultural purposes. A ban on a part of the land only would not have served the purpose. Under Clause (ii) the ban was intended to prevent the fragmentation of holdings and, as such, it was placed only on a transfer of a part of the holding. There could be no objection to the transfer of the holding as a whole because if would not involve fragmentation but would involve only a change in ownership. The scheme underlying the Act was to consolidate agricultural holdings and to prevent their further fragmentation and also to preserve the land for agricultural purpose. It was not the intention to restrict the right of an owner to deal with his property by way of sale, exchange or transfer except to the extent that was necessary to carry out the objects of the Act. That is why a ban of a limited nature has been placed on transfers while a complete ban has been placed on the user of agricultural land for non-agricultural purposes. Having regard to all these circumstances it is not possible to take a different view.

7. The learned counsel for the petitioners submitted that the law having been settled by a series of decisions of this court it should not be unsettled by taking a different view as it would lead to a lot of confusion and give rise to a spate of litigation. For this he relied upon the decision of <ORG> in <CITATION> , AIR 1973 SC 291 where it has been observed:

"............ to take a contrary view from the law laid down would have the effect of unsettling the law established for a number of years. In the matter of interpretation of a local statute the view taken by <ORG> over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of an uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered on the faith of those decisions. The doctrine of stare decisis can be invoked in such a situation."

There is a lot of force in this contention also but it is not necessary to invoke the doctrine of stare decisis, because we are of the firm view that there is no ambiguity whatsoever in the language in which this provision is couched and having regard to all the facts and the circumstances of the case it is not possible to interpret it differently.

8. It is no doubt true that the Hindi version is in conflict with the English version. The Hindi version expressly says that the ban shall apply to the holding as a whole as also to a part thereof. The question arises as to whether in such a situation we should give preference to the English version or to the Hindi version. For this purpose we have to turn to Article 348 of the Constitution. It is necessary to reproduce that Article. It enacts:--

"348 (1) Notwithstanding anything in the foregoing provisions of this Part, until <ORG> by law otherwise provides-

(a) all proceedings in <ORG> and <ORG>,

(b) the authoritative texts-

(i) of all Bills to be introduced or amendments thereto to be moved in either <ORG> or in the <ORG> or either <ORG> of the Legislature of a State.

(ii) of all Acts passed by <ORG> or the <ORG> of a State and of all ordinances promulgated by the President or the Governor of a State, and (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by <ORG> or the <ORG> of a State, shall be in the English language. (2) Notwithstanding anything in Sub-clause (a) of Clause (1) the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purpose of the State, in proceedings in the <ORG> having its principal seat in that State: Provided that nothing in this Clause shall apply to any judgment, decree or order passed or made by such <ORG>.

(3) Notwithstanding anything in Sub-clause (b) of Clause (1) where the <ORG> of a state has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the <ORG> of the State or in Ordinances promulgated of the Governor of the state or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this Article."

Under this Article two things have been provided. Firstly all proceedings in <ORG> and in <ORG> have to be in the English language except when under Clause (2) the Governor of a State with the previous consent of the President authorises the use of the Hindi language or any other local language in proceedings in <ORG> of that State. We are not concerned with that question in this case. Secondly the authoritative text of all Bills and Acts of the <ORG> and of <ORG> has to be in the English language. However, <ORG>s are authorised to prescribe any language other than the English language for this purpose, but, in such an event Clause (3) provides that a translation in the English language of any Bill introduced in or Act passed by <ORG> in a language other than the English language has to be published under the authority of the Governor of the State in the Official Gazette of the state and such translation shall be deemed to be the authoritative text of such a Bill and Act.

Whenever a question arises as to what is the authoritative text of a particular Act or an Ordinance etc., of <ORG> one has to turn to its English translation if ii was enacted in a language other than the English language. The authoritative text of a Bill, Act or Ordinance of <ORG> cannot be in a language other than the English language unless the <ORG> by law otherwise provides. Thus the power to declare that the authoritative text of any Ordinance, Act etc., of a State Legislative shall, be in a language other than the English language has been vested exclusively in the <ORG>. The <ORG> has not made any such provision so far. The official language of the State of Uttar Pradesh is Hindi, so that <ORG> can pass Ordinance, Acts etc., in the Hindi Language. Thus even though the U. P. Consolidation of Holdings Act was passed by <ORG> in Hindi, yet its translation in the English Language shall be regarded its authoritative text and shall prevail over its Hindi version.

9. The learned Counsel for the respondents referred to Articles 345, 346 and 347 of the Constitution. Article 345 makes a provision for official language of a <ORG> and provides that <ORG> may by law adopt any one or more of the languages in use in the <ORG> or the Hindi as the language or languages to be used for all or any of the official purposes. Article 346 makes a provision about the official language for communication between one <ORG> and another or between a <ORG> and the Union. In Article 347 a provision has been made that on a demand being made the President may direct that a language other than the English language shall be officially recognised in a <ORG> or any part thereof for such purposes as may be specified. These Articles have no bearing upon the question before us. We are not concerned with the official language of a <ORG> but are concerned with the question of the language in which the Bills and Acts have to be passed by a <ORG> Legislature and that subject has been specifically dealt with in Article 348 , which provides that notwithstanding anything in the foregoing provisions of this part of the Constitution, all Acts etc., shall be in the English language. It is thus clear that the provisions contained in Articles 345, 346 and 347 are subject to the provisions contained in Article 348.

10. The other argument is that in Clause (3) of Article 348 the use of words "notwithstanding anything in Sub-clause (b) of Clause (1)" suggests that this clause will override Clause (1). This interpretation is not correct. It only means that <ORG> may prescribe any language other than the English Language for use in Bills introduced in or Acts passed by <ORG> and that Clause (1) (b) shall not create an impediment in its way. As we have already indicated above, when a Bill is introduced or an Act is passed in a language other than the English language by <ORG>, an authoritative translation thereof in the English language has to be provided and that translation shall for the purposes of Clause (1) (b) be deemed to be the authoritative text thereof. Indeed, it will be beyond the competence of <ORG> to provide that the authoritative text of its Act and Ordinance etc., shall be in a language other than the English language, because such a power vests only in the <ORG>. Thus, when there is a conflict between the English version of a Statute of <ORG> and its version in a local language, the version in English language will prevail over the version in the local language. <ORG> of this court in <CITATION> ., AIR 1954 All 257 while referring to Article 348 of the Constitution has at page 278 in paragraph 83 observed:--

"In view of this provision of the Constitution the notification appearing in English must prevail over the notification appearing in Hindi."

A <ORG> of this Court in <CITATION> , AIR 1962 AH 240 (FB) has held that in U. P. after the passing of the U. P. Act s No. 1 of 1950 (U. P. Language Bills Act) and 26 of 1951 (U. P. Official Language Act) <ORG> has prescribed Hindi as the language for the official use in the <ORG>, and both, the Hindi version as also the English translation of a Bill or Act etc., published in <ORG> are valid and authorised and both of them can be looked into and put to official use. There is no competition between the two. It is only in case of conflict or divergence between the two versions that the English version may reign supreme and supersede the Hindi one. Following this <ORG> decision a learned Single Judge in <CITATION> , AIR 1965 All 170 has held that although Hindi was the official language of the <ORG> of U. P., in case of divergence between the Hindi and the English versions, of the official gazette the English version reigned supreme and superseded the Hindi version. The same view has been taken by <ORG> in <CITATION> , AIR 1966 Raj 142 and <ORG> in <NAME> v. <ORG> (Sales Tax), AIR 1958 Madh Pra 16.

11. This being the position we are clearly of the opinion that in the present case it is the English text which shall prevail over the Hindi version and according to the English text the expression "any holding" occurring in Clause (ii) of Section 5 (1) (c) of the Act does not include the "Whole holding" so that it is not necessary to obtain the permission of the Settlement Officer (Consolidation) for the transfer of the holding as a whole.

12. With this answer, we direct the writ Petition to be placed before a learned Single Judge for disposal.


JUDGMENT <NAME>, C.J.

1. This is an execution appeal by judgment-ebtors. A compromise decree fixing the payments of certain instalments on specified dates was passed. The decree further provided that in case of default of two consecutive instalments the decree-holder would have the right to recover the whole amount by execution. The dates fixed for payment were : 6th June 1925, 13th June 1926, 15th June 1927, 3rd June 1928, 22nd June 1929, 11th June 1930, 31st May 1931 and 18th June 1932.

2. The decree-holder filed the present application on 21st May 1931 in which he mentioned all the instalments but separated the first three from the rest by means of cross-marks. He did not indicate in his application that it was his case that these instalments were barred by time or that they had been paid, but it is a fact that he did not ask for recovery of these instalments. The judgment-debtors took objection that the application was barred by time because the right to apply accrued when the second default was made in 1926. The decree-holder replied by filing an application alleging that he had received payment of the first three instalments. The <ORG> below have found that the first three instalments were in fact paid and that there was no default. The lower appellate Court has accordingly allowed the appeal for execution for all the instalments except the last one as to which the application was not pressed by the decree-holder.

3. The judgment-debtors have come up in appeal and reiterate their plea of limitation and further urge that it was not open to the <ORG>s below to go into the question of the payments out of <ORG>.

4. It has to be conceded on behalf of the decree-holder that the payments alleged to have been made by the judgment-debtors out of <ORG> were not certified in <ORG> or recorded by the <ORG> prior to the filing of the objection of the judgment-debtors. It was held by all the Judges in the <ORG> case of <NAME> v. Sriohand A.I.R. 1928 All.629, that if a statement purporting to certify a payment out of <ORG> is made by the decree-holder after the controversy had arisen it cannot have the force of a certificate. It is impossible to hold that the mere placing of certain cross-marks after the first three instalments amounted to any intimation to the <ORG> that the decree-holder was certifying payment of those instalments. The idea did not seem to have struck the decree, holder till some time after the objection was filed by the judgment-debtors alleging that no payments had bean made and the application for execution itself was barred by time. It must accordingly be held that these payments had never been certified within the meaning of Order 21, Rule 2, Civil P.C. and therefore the execution <ORG> cannot take cognizance of any such alleged payments. The <ORG>s below therefore were not justified in enquiring into this matter. When these alleged payments are to be altogether ignored it must be assumed that no payments were in fact made. It would follow that it must be presumed that the judgment-debtors had made default in the payment of the first three instalments.

5. The next question is whether the present application is barred by time. The application can be split up into two parts. The first relief being for the recovery of the instalments of 1928, 1929 and 1930, and the second for the recovery of the subsequent instalments, one of which was later on not pressed for. As noted above, the application is for execution of a decree of <ORG> which fixes certain instalments. So far as the instalments of 1928, 1929 and 1930 are concerned, dates were specified in the decree on which they had to be paid. It is therefore impossible to take the case out of Article 182(7 ), Limitation Act . Under that sub-clause an application for execution, where the application is to enforce any payment which the decree or order directs to be made at a certain date, must be made within three years from such date. The clause applies in express terms to the application for execution so far as these three instalments are concerned and it is not possible to take it out of that clause. In these circumstances the residuary Article 181 would not apply at all to these three instalments.

6. It is however contended on behalf of the appellants that inasmuch as the right to apply accrued on the occurrence of the second default in 1926 and the decree-holder became entitled to recover the whole amount, time began to run in respect of the instalments from that date and the whole claim is now barred by time.

7. This question came up for consideration before a Full Bench of this Court in <CITATION> A.I.R. 1928 All. 629 of which both of us were members. The opinion of the majority of the Bench was that the Words "at a certain date" in Clause (7) of Article 182 meant a specified date and would not be wide enough to include any date of default not specified. It was accordingly held by the majority that when a default clause of this kind is sought to be enforced the appropirate article would not be Article 182(7) but the residuary Article 181. And air the three Judges took the view that so far as the instalments which had already fallen due were concerned the appropriate article was Article 182(7). It was only as regards the remaining unpaid balance in respect of the instalments which had not yet fallen due that two of the Judges thought that Article 181 applied. The view of the majority accordingly was that it was not necessary to enforce the default clause in order to recover instalments which had already fallen due and that an application for recovery of such instalments would be governed by Article 182(7) and would be in time if filed within three years of the dates of the various instalments. An application for recovery of instalments more than three years old would be beyond time unless there was an acknowledgment or payment sufficient to save limitation. But as regards the future instalments not yet fallen due and which were not yet recoverable unless the default clause was enforced the appropriate article was Article 181 and time would begin to run from the date when the right to apply accrued.

8. The further question as to the date from which the time under Article 181 would begin to run, namely, whether from the date when the right to apply accrued on the first occasion or from the date when it accrued on the last occasion did not directly arise in the case because all the instalments had fallen due before the application for execution was made. <NAME>, J., did not deal with this aspect of the case because he was of opinion that Article 181 did not apply at all. On p. 980 (of 26 A.L.J.) I remarked:

In such circumstances the application for the recovery of the amounts of instalments which fell due more than three years prior to the application would, unless it was saved by Sections 19 or 20, be barred by time; but the application would still be within time as regards those instalments which fell duo within three years, in spite of a default clause. As the dates fixed for all the instalments had expired before the application for execution was made, there; was no necessity for the decree-holder to enforce the default clause. His application is substantially one for recovery of the total amount of the instalments fallen due together with interest.

9. I further pointed out that the case would be different if the claim were to enforce the default clause before the dates fixed for the subsequent instalments had arrived. In my separate-judgment I did not deal with the question whether time would begin to run from the date when the right to apply first accrued or from any subsequent accrual of a similar right. <NAME>, J., seems to have held at p. 989 that Article 181 would apply to an application for execution in respect of the future instalments, but further added that the right to apply would accrue on the first date of default and again on the occurrence of each default in respect of that and the previous default. Thus, in the separate judgments that were delivered only one Judge had expressed the opinion that there would be successive accruals of the right to apply the other two did not express any opinion at all. In the opinion of the <ORG> which was expressed at the end of the judgment and which was the opinion of the only Judge who had expressed it, it was accordingly mentioned that if the application is one for the remaining unpaid balance of the decretal amount under the second part of the decree (default clause) it is not governed by Article 182 at all, but by Article 181 and limitation will run from the date of any two successive defaults, the decree-holder being entitled to a decree for the whole of the balance due less the amount of any individual instalments, which regarded as individual instalments are not already barred by limitation.

10. It is quite clear therefore that Article 181 in the opinion of all the Judges of <ORG> would not apply to the application for recovery of instalments of 1928, 1929 and 1930 in the present case. The application having been made after the instalments had fallen due the appropriate article is Article 182(7); the application for the recovery of this amount therefore was well within time. As regards the future instalments the decree-holder did not press his application for the instalments of 1932, but the lower appellate Court has ordered execution in respect of the instalments for 1931 which would have fallen due on 31st of May of that year. The application however was made 10 days earlier and was therefore premature unless the default clause can be enforced. The condition in the compromise decree already referred to laid down that the decree-holder would have the right to recover the whole amount on the occurrence of two successive defaults in the payment of instalments. There had been a considerable difference of opinion as to whether it is open to a creditor to waive his right to recover the whole amount where an option is given to him in case of default. So far as the right to sue for recovery of mortgage money is concerned it is now governed by the pronouncement of their Lordships of <ORG> in <CITATION> A.I.R. 1932 P.C. 207 in which their Lordships have clearly pointed out that a fixed term for a mortgage transaction may be as much for the benefit of the mortgagee as for the benefit of the mortgagor and that it is impossible to hold that a mortgagor can, by making default, make the mortgage money become due within the meaning of Article 132 , Limitation Act , before the expiry of the fixed period. Their Lordships held that a mortgagor could not take advantage of his own default and claim a right to redeem before the expiry of the period and that therefore the mere fact that there was an option given to the mortgagee for his own benefit to sue for the whole amount would not make the money become due so as to make the time run against the mortgagee. But in the latter portion of the judgment their Lordships also pointed out that:

If in the Indian cases the question ware 'when did the mortgagee's cause of action arise?' i.e., when did he first become entitled to sue for the relief claimed by his suit their Lordships think there might be much to be said in support of the Allahabad decision.

11. The Allahabad view, as expressed in two previous <ORG> cases of <ORG> 189 and <ORG> v. Meherban A.I.R. 1923 All. 1 was that time began to run from the date when the mortgagee first become entitled to exercise option no matter whether he chose to exercise it or not. This view has been definitely overruled by their Lordships of <ORG>, but their Lordships seem inclined to the view that if in the Indian cases the questions were "when did the mortgagee's cause of action arise?" the Allahabad view might well be correct. It seems to me that the expression "right to apply accrues" is more emphatic than the expression "cause of action arises." If the date when the cause of action arises is to be considered to be the first date when one becomes entitled to sue for the relief claimed by him then the date when he becomes entitled to apply is certainly the date when the right to apply by way enforcing the default clause accrued to the mortgagee when on the first occasion there was a default in the payment of two successive instalments, namely, in the year 1926. It is true that he did not then apply for execution claiming the whole amount, but certainly had the right to apply and so it cannot [be said that the right to apply did not accrue. The result would be that so far as the remedy for the enforcement of the default clause in the compromise decree is concerned it became time-barred after the expiry of three years from 13th June 1926. It is no longer open to the decree-holder to claim the recovery of future instalments merely because in some future years there has again been a default in the payment of two successive instalments. This however does not mean that his remedy to recover the instalments as and when they fall due is also equally barred. I have already pointed out that the application for execution of the decree for recovery of these instalments for which dates have been specified in the decree is governed by Article 182(7). As remarked by me on p. 980 (of 26 A.L.J.) in <NAME> case A.I.R. 1928 All. 629 the application is still within time as regards these installments which had fallen due within three years " in spite of the default clause. " I would accordingly hold that the application for the recovery of the instalments for 1928, 1929 and 1930 is within time, whereas the application for the recovery of the instalment for 1931 was premature, I would accordingly allow the appeal in part.

Mukerji, J.

12. I entirely agree with the Hon'ble the Chief Justice, but having regard to the importance of the points raised in this appeal and having regard to the fact that points, similar to the one before us, arise very often in execution of instalment decrees, I would like to add a few words. The facts of the case are stated in the judgment of the learned Chief Justice and briefly they may be reiterated as follows : An instalment decree was passed on 12th May 1924 in favour of the respondent. It can after mentioning the several dates fixed for payment for instalments, as follows:

In the case of default in the payment of two successive instalments, the decree-holder would be entitled (decreedar ho ikhtiar hoga) to realize the entire balance of his decretal amount, irrespective of the fact whether or not instalments have fallen due, by execution of the decree.

13. The decree-holder applied for execution in respect of the last five instalments. He did not say in respect of the first three instalments whether they had been paid or not. "When the application for execution was made the judgment-debtors objected that they had never made any payment and the application was time-barred, inasmuch as the right to apply for execution accrued to the decree-holders on 13th June 1926. On this the decree-holder came forward with an application stating that he had received the first three instalments. The Courts below have found as a fact that the first three instalments were paid by the judgment-debtors. Having regard however to the decision of the <ORG> case in <NAME> v. Sriahand A.I.R. 1928 All. 629 it was not open to the decree-holder to certify payment of the first three instalments after the judgment-debtors had taken an objection to the execution of the decree on the ground that he had made no payment. It follows that the Courts below were not entitled to go into the question as to whether the first three instalments had been paid or not. The judgments of the Courts below therefore so far as they found that the payments had been made, must be regarded as non-existent. We must however further regard, for the purposes of this case, that the first three instalments were never paid. In the circumstances, the question arises whether the present application is time-barred. According to the terms of the decree the decree-holder had two distinct rights. The first right was to receive instalments as and when they fell due. The second right was to enforce the payment of all the instalments that might remain unpaid, in the case of two successive instalments remaining unpaid. If it be a fact that the second right is time-barred it would not follow that the first right would also be time-barred.

14. As regards the second right, namely, to realise the entire amount of the decree irrespective of the fact whether the instalments have fallen due or not, the majority of <ORG> in the case already quoted, namely, <CITATION> A.I.R. 1928 All. 629 held that Article 181 , Schedule 1, Limitation Act , would apply. Then the question is when did the right to apply accrue to the decree-holder within the meaning of column 3 of Article 181. That right to apply would accrue on the first occasion. A right to apply may accrue on several occasions but for the purposes of limitation the first occasion when the right to apply accrues must be taken as the crucial date. This was indicated by their Lordships of <ORG> in the case of <CITATION> A.I.R. 1932 P.C. 207. The right to apply in this case therefore accrued to the decree-holder on 13th June 1926. More than three years having elapsed from that date it is no longer open to the decree-holder to apply for recovery of such instalments as had not fallen due on 21st May 1931, when he made his application for exeeution. It follows that he cannot recover the instalment due on 31st May 1931, which had not fallen due on the date of the application for execution. For similar reasons he could not apply for the recovery of the instalment of 1932.

15. I have already remarked that the fact that the decree-holder's second right is barred, does not force us to hold, as a necessary consequence, that the first right is also barred. As pointed out by all the Judges in the <ORG> case of <NAME> v. Sriohand A.I.R. 1928 All. 629 the instalments, as and when they fall due, are recoverable under Article 182(7 ), Schedule 1, Lim. Act. In that view the instalments of 1928, 1929 and 1930 are recoverable. 1 agree therefore that the appeal should be al-slowed in part by declaring that the instalment which fell due on 31st May 1931 is not recoverable under the present application for execution.


CASE NO.: Appeal (civil) 9676 of 2003 PETITIONER: <NAME> RESPONDENT: Chairman, <ORG> & <ORG>. DATE OF JUDGMENT: 03/05/2005 BENCH: <NAME> & <NAME> JUDGMENT:

J U D G M E N T W I T H CIVIL APPEAL NO.9678 OF 2003 S.B. SINHA, J :

These two appeals arising out of a common judgment and order dated 10.2.2003 passed by <ORG> at Jammu were taken up for hearing together and are being disposed of by this common judgment.

Interpretation of a bipartite settlement dated 8.9.1983 is in question in these appeals which arise out of the aforementioned judgment and order passed by a Division Bench of the said court dismissing an appeal preferred by <ORG> (hereinafter referred to as 'the Bank), affirming a judgment and order dated 15.12.1999 passed by a learned Single Judge of the said court whereby and whereunder an award dated 4.10.1995 passed by <ORG>, Chandigarh, directing the workman to be reinstated in service with the benefit of past service without any back wages had not been interfered with.

The workman was working as a Cashier-cum-Clerk with the <ORG>. He was transferred to Kolkata on or about 2.4.1981; but he did not join the said office or before 14.4.1981, when he was supposed to do so. On his failure to report to Kolkata office by 14.4.1981, a notice was issued by the <ORG> on 22.6.1981 asking him to show cause as to why disciplinary proceedings should not be initiated against him. Taking however a lenient view, he was transferred to Amritsar on 6.8.1981 and then to <NAME> on a representation having been made in this behalf. He later on was transferred to Amritsar again. He joined <ORG> on 29.7.1982. A leave for a period of 28 days was sought for and sanctioned in favour of the workman on an application made therefor by him on or about 9.10.1982. A further leave of 9 days was sanctioned by an order dated 17.11.1982. Yet again he filed an application seeking leave for one month on 19.5.1983; although he had only 25 days accumulated leave to his credit and his leave account had already been deducted by 50 days' medical leave.

A bipartite settlement was entered into by and between the management of 58 Banks including <ORG> herein and their workmen; clause 2 whereof is as under :

"2. Voluntary Cessation of employment by the employees.

Whereas an employee has not submitted any application for leave and absents himself from work for a period of 90 or more consecutive days without or beyond any leave to his credit or absents himself for 90 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended and where there is satisfactory evidence that he has taken up employment in India and the management is satisfied that he has no present intention of joining duties, the management may at any time thereafter give a notice, to the employee's last known address calling upon the employee to report for duty within 30 days of the notice stating, inter alia, the grounds for the management coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within 30 days or unless he gives an explanation for his absence satisfying the management that he has not taken up another employment or avocation and that he has no intention of not joining duties, the employee will be deemed to have voluntarily retired from the bank's service on the expiry of the said notice. In the event of the employee submitting a satisfactory reply, he shall be permitted to report for duty thereafter within 30 days from the date of the expiry of the aforesaid notice without prejudice to the <ORG>'s right to take any action under the law or rules of service."

Despite the expiry of the period of leave in June 1983, the workman did not report back for duties, whereupon the Branch Manager, <NAME>, informed him by a letter dated 2.11.1983 that he should rejoin his duties, which was not complied with. An explanation was sought for from him by Memorandum dated 2.11.1983 whereby and whereunder he was asked to show cause as to why he had been on unauthorized leave for such a long period. Such an explanation was to be filed by 10.11.1983. He had further been asked to join duties. Despite service of the said memo., the workman failed to join his duties by 31.12.1983. Consequently, a show cause notice dated 31.12.1983 served on him whereby and whereunder he was intimated that in the event of his failure to resume his duties by 15.1.1984 he would be deemed to have been discharged from the services of the <ORG>. In reply thereto, a telegram from one <NAME> was received stating that the workman being unwell could not join his duties by 15.1.1984. He again applied for grant of leave on medical ground on 15.2.1984. As by reason of the aforementioned act on the part of the workman, the <ORG> felt a great deal of inconvenience, a memorandum was served on 20.2.1984, pursuant whereto again he requested for sanctioning of leave. His services were dispensed with by invoking clause (2) of the bipartite settlement stating :

"3. Consequent upon receipt of these applications from Mr. <NAME>, the bank had no alternative but to make confidential enquiries about the state of his health in pursuance of which it was revealed that Mr. <NAME> was keeping a good health and even attended to his family business. This convinced the bank that Mr. <NAME> was not at all interested in the services of the bank, which prompted it to issue an order vide No. Per/Disp/84-448 dated 17.5.1984 in accordance with the provisions contained in Memorandum of Settlements dated 8.9.1983 and Mr. <NAME> was deemed to have voluntarily retired from the services of the bank w.e.f.8.2.1984."

A legal notice was served upon the <ORG> herein after a long time demanding the reinstatement of the workman on or about 6.4.1989, to which it was replied that he had been engaged in some business at <ORG> and thus it was clear that he had no interest in continuing in the services of the <ORG>. Sometime in June 1989, a conciliation proceeding was initiated by him under the Industrial Disputes Act resulting in a reference made by <ORG> in terms of a Notification dated 7.8.1990.

Inter alia, on the ground that the bank allegedly did not place on records the settlement dated 8.9.1983, the impugned award was passed. In the writ petition filed thereagainst by the <ORG> it was specifically averred :

"It is important to point out here that the relevant Bipartite Settlement is applicable to the Management of the Bank and <ORG> is just in the form of Book and the petitioner-bank while perusing its case has placed that book of Bi-Partite Settlement before the respondent No.2 but the respondent No.2 without considering that settlement has remained under this impression that Bi-Partite Settlement is just a form of some document consisting of some leaves and has not placed on record which is not true. The order passed by the respondent No.2 is totally in contravention of Bi- partite Settlement and deserves to be quashed on this score only.

A writ petition was also filed by the workman questioning non-grant of back wages. Both the writ petitions were heard together. In the said proceedings, the workman filed an application purported to be under Section 17-B of the Industrial Disputes Act, which was not supported by an affidavit as is required in law. The learned Single Judge although noticed the contentions raised in both the writ petitions, but dealt with the one filed by the workman only. An appeal preferred thereagainst was also dismissed.

Mr. <NAME>, the learned counsel appearing on behalf of the <ORG>, would submit that <ORG>-cum- Labour Court as also both the learned Single Judge and the Division Bench of <ORG> proceeded on a wrong premise that it was obligatory on the part of the <ORG> to conduct a full fledged departmental proceeding. According to the learned counsel <ORG> as also <ORG> erred in law insofar as they failed to take into consideration that the principles of natural justice had been complied with as repeated opportunities had been given to the workman to explain his position as also report for duties. Strong reliance, in this behalf, has been placed on <CITATION> [] and <CITATION> [].

Mr. <NAME>, the learned counsel appearing on behalf of the workman, on the other hand, would contend that as a plea for extension of leave was raised by the workman, if the same had not been proved to be satisfactory to the management, it was obligatory on its part to conduct a departmental proceeding against him. In any event, the learned counsel would contend that the applicability of the bipartite settlement having not been gone into by <ORG> as also by <ORG>, the matter should be remitted to the <ORG>.

Before <ORG>, the workman did not deny or dispute the existence of the bipartite settlement. He merely raised a plea that the same was not applicable. The plea of the <ORG>, on the other hand, was that the stipulations contained in the bipartite settlement were attracted if the employer arrives at a satisfaction that that there were sufficient grounds for it to arrive at a conclusion that the employee was no longer interested to continue in the service.

The fact that there exists a bipartite settlement entered into by and between the Banks and their workmen is not in dispute. The workman was all along aware about the said legal position inasmuch as, at all stages, viz., issuance of notices and memorandums, passing of the order of termination, the said settlement had been referred to.

What fell for consideration before <ORG> was the interpretation and/or applicability of the said settlement. <ORG> committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by <ORG>. Clause (2) of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to joint his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1982. He was required to resume his duties by 15.1.1984. The <ORG> received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medical certificates.

The bipartite settlement is clear and unambiguous. It should be given a literal meaning. A bare perusal of the said settlement would show that on receipt of a notice contemplated thereunder, the workman must either : (1) report for duties within thirty days; (2) give his explanation for his absence satisfying the management that he has not taken any employment or avocation; and (3) show that he has no intention of not joining the duties. It is, thus, only when the workman concerned does not join his duties within thirty days or fails to file a satisfactory explanation, as referred to hereinbefore, the legal fiction shall come into force. In the instant case except for asking for grant of medical leave, he did not submit any explanation for his absence satisfying the management that he has not taken up any other employment or avocation and that he has no intention of not joining his duties.

In the aforementioned fact situation we do not see any reason as to why the <ORG> could not arrive at a satisfaction that the workman had no intention to join his duties. It is interesting to note that though the said order was passed on 17.5.1984, a representation to the <ORG> was made by the workman to reconsider the said decision after a period of 3 years and 2 months by a letter dated 31.7.1987 Yet again a dispute was sought to be raised by issuance of a legal notice on the <ORG> only on 6.4.1989.

Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The <ORG>, as noticed hereinbefore, in response to the lawyer's notice categorically stated that the workman had been carrying on some business elsewhere.

We cannot accept the submission of Mr. <NAME> that only because on a later date an application for grant of medical leave was filed, the same ipso facto would put an embargo on the exercise of the jurisdiction of the <ORG> from invoking clause (2 ) of the bipartite settlement.

It may be true that in a case of this nature, the principles of natural justice were required to be complied with but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of natural justice.

Clause (2) of the bipartite settlement raises a legal fiction, which is of wide import. Once the action on the part of the employer is found to be fair, the court in view of such legal fiction would call upon the workman to prove contra. It will bear repetition to state that the only defence which came to be raised by the workman was non-applicability of the bipartite settlement. The notice dated 31.12.1983 refers to the said settlement by necessary implication, as on the failure of the workman to resume his duties by 15.1.1984, it was stated that he would be deemed to have been discharged from the services of the <ORG>. Yet again in terms of the memorandum dated 20.2.1984, attention of the workman was drawn to the fact that his application for grant of leave was neither in the prescribed form nor any medical certificate was attached thereto. It was pointed out that the medical certificate shows that he was under the doctor's treatment from 22.10.1983 to 22.1.1984 and as such he should have reported for duties on 23.1.1984 and as he failed to do so, it gave rise to an inference that he was not interested to continue in <ORG>'s services. He did not submit any satisfactory explanation nor he filed any valid medical certificate. It was in that situation, the order dated 17.5.1984 was issued which again referred to the provisions contained in memorandum of settlement dated 8.9.1983. The workman ex facie appears to have accepted the said order as for a long period he maintained silence. Had he been interested in the <ORG>'s services, it was expected of him to resume his duties and/or file proper application for grant of medical leave with a valid medical certificate.

The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [ <CITATION> []. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. [ <CITATION> ] and <ORG> & Anr. Vs. S.G. Koturappa & Anr. 2005 (2) SCALE 493].

The contention raised at the <ORG> appears to be squarely covered by two decisions of this <ORG> relied upon by Mr. <NAME>. In <ORG> (supra) <NAME>, J. speaking for the Division Bench observed :

"14. Two principles emerge from the decisions: (1) principles of natural justice and duty to act in a just, fair and reasonable manner have to be read in the Certified Standing Orders which have statutory force. These can be applied by <ORG> and <ORG> even to relations between the management and workman though based on contractual obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the <ORG> or <ORG> adjudicating an industrial dispute can itself go into the question raised before it on the basis of the evidence and other material on record.

15. In the present case action was taken by the <ORG> under clause 16 of the Bipartite Settlement. It is not disputed that <NAME> absented himself from work for a period of 90 or more consecutive days. It was thereafter that the <ORG> served a notice on him calling upon him to report for duty within 30 days of the notice stating therein the grounds for the <ORG> to come to the conclusion that <NAME> had no intention of joining duties. <NAME> did not respond to the notice at all. On the expiry of the notice period the <ORG> passed orders that <NAME> had voluntarily retired from the service of the <ORG>."

It was further held :

"18. The <ORG> has followed the requirements of clause 16 of the Bipartite Settlement. It rightly held that <NAME> has voluntarily retired from the service of the <ORG>. Under these circumstances it was not necessary for the <ORG> to hold any inquiry before passing the order. An inquiry would have been necessary if <NAME> had submitted his explanation which was not acceptable to the <ORG> or contended that he did report for duty but was not allowed to join by the <ORG>. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the <ORG> clearly showed that notice was given to <NAME> and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in clause 16 of the Bipartite Settlement."

The aforementioned legal position was reaffirmed by a decision of three-Judge Bench in <ORG> (supra), wherein it has been held :

"Under this rule the employee is given an opportunity to rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that the employee does not require the job anymore and will stand retired from service. Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with no satisfactory explanation thereto".

In the fact situation obtaining therein it was held that there had been sufficient compliance for principle of natural justice.

In <ORG> (supra), this Court noticed the decision of three- Judge Bench of this Court in <CITATION> . [] whereupon <ORG> had placed strong reliance. In <ORG> (supra) admittedly no opportunity was given to the workman and no inquiry was held. In that situation, it was observed :

"8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person."

Keeping in view the fact that we have ourselves considered the pleadings of the parties as also the materials on records, it is not necessary to remit the matter to the <ORG> as it would not serve any purpose. So far as the appeal preferred by the workman is concerned, it is not necessary to entertain the same as it is evident that Section 17-B of the of the Industrial Disputes Act cannot now be applied in view of the fact that the workman did not file an affidavit before the learned Single Judge in support of his contentions and as required under law.

Having regard to the facts and circumstances of the case and for the reasons stated hereinbefore, we are of the opinion that the appeal preferred by the <ORG> should be allowed and that of the workman should be dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.


CASE NO.: Special Leave Petition (crl.) 1971 of 1999 PETITIONER: <ORG> Vs. RESPONDENT: <ORG> & <ORG>. RESPONDENTS DATE OF JUDGMENT: 25/02/2000 BENCH: G.B.Pattanaik, U.C.Banerjee JUDGMENT:

<NAME>J.

L.....I.........T.......T.......T.......T.......T.......T..J Leave granted.

Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise upto the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount. Factual matrix therefore would thus be relevant in the matter of assessment of the situation as to whether civic profile would outweigh the criminal outfit. It appears that as against the initiation of proceeding on the file of 17th Metropolitan Magistrate, Hyderabad against the appellant under Sections 120B, 418, 415 and 420 read with Section 34 Indian Penal Code, the respondents moved <ORG> for quashing of complaint and the Learned Single Judge on 15th February, 1999 in Criminal Petition No.5386 of 1998 did quash the complaint and hence the petitioner is in appeal before this Court. The Learned Single Judge while dealing with the matter came to a definite conclusion that the complaint does not disclose any offence having been committed by the accused petitioner and as such allowed the petition for quashing of the complaint. The factual score depict that the respondents approached the petitioner for the purpose of securing Ethambutol Hydrochloride drug in bulk for sale and use in various pharmaceutical drugs and products being manufactured by the respondent Company. It is at this juncture that the Petitioner has come out with a definite case that by reason of a promise of maintaining continuous supply of raw materials to the petitioners herein for the purpose of manufacturing Ethambutol Hydrochloride and in such a way so as not to cause any interruption or hindrance to the manufacturing activity of the Complainants factory, the Complainant-petitioner entered into an agreement dated 31st August, 1997 which inter alia records as below: It is the responsibility of the party of the 2nd part to maintain sufficient inventory of the Raw Materials as described in the Annexure I in order to maintain consistent supplies to the manufacturer and not to cause any interruption/hindrance with the manufacturing activity by the manufacturer.

It is on the basis of the agreement as noticed above and failure to comply therewith, it is stated that the petitioner herein has lost a substantial amount of money and to the extent of about one crore and the sufferance of loss has been by reason of specific assurance and representation which obviously turned out to be false. Misrepresentation on the part of the respondent accused persons to the Complainant, has been the major grievance and a definite and specific case has been made out that such a misrepresentation was intentionally effected since the accused persons were in the know of things that in the event the supplies are not effected, as per the agreement, the Complainant is likely to suffer a wrongful loss which as the complaint proceeds, in the interest of the transaction between the parties, the accused persons were bound to protect. It is on this score that relevant extracts of the complaint ought to be noticed at this juncture. The complaint inter alia provides as below: (i) ...Clause 9 of the Agreement dated 31.8.1997 states that the schedule of supply of raw materials by the party of the 2nd Part (A1 Company) and the delivery of the finished product by the party of the 1st Part (Complainant) shall be as in Annexure III (to the Agreement)

(ii) Annexure III to the Agreement dated 31.8.1997 would show that the supply of raw material DL2 Amino Butanol by A1 to the Complainant must be 15,210 Kgs or 15.21 Mts per month to facilitate and sustain a monthly production of 8500 Kgs. or 8.5 Mts. of the finished product Ethambutol Hydrochloride per month.

(iii) Another main factor being that the Complainant should not suffer any loss on account of the execution of the agreement with <ORG>. The Complainant states that it entered into the Agreement dated 31.8.1997 with <ORG> under which the Complainant has been converting the raw materials supplied by <ORG> into the bulk drug Ethambutol Hydrochloride and supplying it back to <ORG> on prescribed conversion charges.

(iv) ..The Complainant states that the supply of raw materials, particularly the principal imported raw material DL2 Amino Butanol, by A1 was far from regular almost from the beginning of the agreement. This was often being informed to A1 through A2, A3, A4 and A5. Based on the representations made by A1 through A2 to A5, the Complainant had planned its production according to the agreement i.e. on the basis of supply of 15,210 kgs. DL2 Amino Butanol by A1 for conversion every month, but the <ORG> production plans were totally dislocated and disrupted on account of A1s willful failure to supply the raw materials as represented by them through A2, A3, A4 and A5.

(v) ..The Complainant states that it had to incur a loss of over Rs. One crore due to the willful defaults committed by the Accused. These defaults on part of A1 were repeatedly brought to the notice of the Accused through telephonic calls by the Complainant, more particularly in the fax message of 15.12.97 and 10.2.98 to A1 and A3.

(vi) The Complainant had a meeting with <ORG> on 4.4.1998 which was also attended by <ORG>. At this meeting held on 4.4.98, <ORG> and <ORG> agreed with the position stated by the Complainant and made representations that the supply of raw material by A1, particularly the critical raw material DL2 Amino Butanol, would be kept up regularly to enable production of 8 MTs of the finished product. The Complainant reduced these representations by A1 through <ORG> and <ORG> into writing on the same day and wrote the letter dated 4.4.98 to A1 through <ORG>. The contents of this letter have not been rebutted by A1. The Complainant states that inspite of this, the Accused deliberately failed to act on their representations made to the Complainant on 4.4.98 and thus continued to inflict huge losses on the Complainant

(vii) ..The Complainant states that in its talks and discussions with the Accused, it had been indicating to A2, A3, A4, A5 and A6 that in case A1 could not keep up to its representations which put the Complainant to huge losses, this clause 15 could be invoked and the agreement terminated by the Complainant giving 2 months notice to A1. But the Accused would, on these occasions, persuade the Complainant not to invoke this provision and make further representations to the Complainant that the supply of raw materials would henceforth be kept at the agreed level. However, these representations were not acted upon by the Accused while, on the other hand, believing these representations, the Complainant made schedules of production, but was left without materials, holding on to an idle plant carrying idle labour and thus incurring huge monetary losses.

(viii) ..The Complainant now understands that the above false representations were made by the Accused solely with the purpose of putting the Complainant to huge losses and crippling them since the Accused themselves were planning to manufacture in their own facilities the bulk drug Ethambutol Hydrochloride and wanted to put the Complainant out of competition by ruining them by keeping them out of production which was achieved by the Accused by making false representations of supply of raw material at the agreed levels and then willfully failing and omitting to act as per these representations.

(ix) The Complainant was also persuaded by the representations of the Accused to desist from invoking Clause 15 of the Agreement and revoke it which would have reduced its losses to some extent. The above acts of the Accused clearly attract the ingredients of the offence punishable U/Sec.415 I.P.C ..

(x) the Accused were having dishonest intention and it was with such intention that <ORG> was fraudulently and dishonestly induced to enter into the Agreement dt. 31.8.97. The dishonest intention of the Accused is further seen from the complaint lodged by <ORG> on behalf of <ORG> against three officers of the Complainant.

(xi) The Accused were fully aware that the <ORG> is a reputed manufacturer of Ethambutol Hydrochloride and they are having good reputation in Indan and Overseas markets. The Accused were themselves contemplating entering into production of Ethambutol Hydrochloride and wanted to eliminate the competition from the <ORG> who had established their name in the market. Keeping this in mind, the Accused, in order to earn wrongful gain and cause wrongful loss to the <ORG>, acted in the aforesaid manner, inducing the <ORG> through representations (by the Accused) to commit to conversion work and consequently schedule its production accordingly and then willfully failing to act as per the representations thus putting the <ORG> to huge losses.

(xii) The Complainant further states that but for the false representations made by the Accused at the time of entering into the Agreement dt. 31.8.97, it (Complainant) would not have entered into this Contract. The aforesaid acts of the Accused have ruined the finances of the Complainant and it had to incur huge loss due to these acts of the Accused. The Complainant states that the above said acts of the Accused clearly attract the ingredients of Section 420 I.P.C..

(xiii) The preceding paragraphs in this Complaint would clearly reveal that the Accused who are bound to protect the interests of the Complainant in the transactions under the Agreement dt.31.8.97 have not only cheated the Complainant by causing wrongful loss to it, but have also failed to protect the interests of the Complainants in the transactions. Hence, the Accused are liable to be punished U/Sec.418 I.P.C .

(xiv) .The Complainant states that from whatever has been stated and set out herein above, it is absolutely clear that A1 to A6 had, in criminal conspiracy with each other and in furtherance of the common intention of all have committed the above offences under Section 415 I.P.C. and 420 I.P.C . Letter correspondence, the Complaint and the documents relating to the Agreement dt. 31.8.97 would prove that A2 to A6 have very much participated in the affairs of A1 and in particular, those relating to the transactions under the Agreement dt. 31.8.97.

This longish narration could have probably been avoided, but it cannot be so done by reason of the fact that the Learned Single Judge has only recorded : It appears that under an agreement the accused were obliged to supply raw materials for production to the Complainant which they failed to do. I do not find any allegation whatsoever in the complaint which would disclose a criminal offence.

Before proceeding further in the matter, let us now deal with the offences alleged in the First Information Report. The first offence alleged is that of cheating within the meaning of Section 415  . For convenience sake Section 415 reads as below: 415. Cheating Whoever, by deceiving any person, fradulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat . Explanation A dishonest concealment of facts is a deception within the meaning of this section.

The Complaint is also said to be under Section 418 I.P.C. which reads as below: 418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound , either by law or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

The Complaint also alleges an offence said to have been committed under Section 420 I.P.C. which reads as below: 420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The ingredients require to constitute an offence under Section 415 has been lucidly dealt with by this Court in the Case of Ram Jas v. State of U.P. (1970 (2) SCC 740) wherein this Court observed as below: The ingredients required to constitute the offence of cheating are-

(i) there should be fraudulent or dishonest inducement of a person by deceiving him;

(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(ii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

While Section 415 is an offence of cheating, Section 418 deals with cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and Section 420 is cheating and dishonestly inducing delivery of property. In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 418 or 420. Mens rea is one of the essential ingredients of the offence of cheating under Section 420 . As a matter of fact illustration (g) to Section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract and it is this concept which obviously has weighed with the Learned Single Judge. But can the factual situation as narrated above in the longish reproduction of the complaint lend support to the observations of the Learned Judge, the answer is pivotal one but before so doing one other aspect as regards the powers under Section 482 . ought to be noticed. As noted herein before this power is to be exercised with care and caution and rather sparingly and has been so held on more occasions than one. In the case of <CITATION> 1985 SCC (Crl.) 180 this Court pointed out that the High Court should very sparingly exercise its discretion under Section 482  <CITATION> [AIR 1983 SC 1219: : 1983 SCC (Crl) 813] this Court observed: <ORG>, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen.

Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and <ORG> at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observation in <CITATION> [1976 (3) SCC 736] lend support to the above statement of law. (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where <ORG> can quash proceedings.

58. The same principles would apply mutatis mutandis to a criminal complaint.

59. We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was <ORG> justified in quashing the complaint at that stage. It is well settled by a long course of decisions that for the purpose of exercising its power under Section 482 . to quash a FIR or a complaint <ORG> would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of Sections 405 and 406 , IPC are not made out, <ORG> would be justified in quashing the proceedings.

In the matter under consideration, if we try to analyse the guidelines as specified in <NAME> case (supra) can it be said that the allegations in the complaint do not make out any case against the accused nor it discloses the ingredients of an offence alleged against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the accused. In the present case, the complaint as noticed above does not, however, lend credence to the questions posed. It is now well settled and one need not dilate on this score, neither we intend to do so presently that the allegations in the complaint will have to be accepted on the face of it and truth or falsity of which would not be gone into by the <ORG> at this earliest stage as noticed above: whether or not allegations in the complaint were true is to be decided on the basis of the evidence led at the trial and the observations on this score in the case of <ORG> v. <NAME> [1997 SCC (Crl.) 1073] ought to be noticed. In paragraph 3 of the report this <ORG> observed: 3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High <ORG> and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously.

Be it noted that in the matter of exercise of <ORG> inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of <ORG>. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High <ORG> is desirous of putting a stop to the known procedure of law, the High <ORG> must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction. Recently, this <ORG> in <CITATION> (1999 (5) SCALE 609) observed: 5. Respondents counsel in the High <ORG> put forward mainly two contentions. First was that the dispute is purely of a civil nature and hence no prosecution should have been permitted, and the second was that the Judicial Magistrate of First Class, Gandhidham has no jurisdiction to entertain the complaint. Learned Single Judge has approved both the contentions and quashed the complaint and the order passed by the magistrate thereon.

6. On the first count learned Single Judge pointed out that there was a specific clause in the Memorandum of Understanding arrived between the parties that disputes, if any, arising between them in respect of any transaction be resolved through arbitration. <ORG> made the following observations:

Besides supplies of processed soyabean were received by the complainant company without any objection and the same have been exported by the complainant-company. The question whether the complainant-company did suffer the loss as alleged by it are the matters to be adjudicated by <ORG> and cannot be the subject matter of criminal prosecution.

7. Time and again this Court has been pointing out that the quashment of FIR or a complaint in exercise of inherent powers of <ORG> should be limited to very extreme exceptions (vide <CITATION> (1992 Suppl.(1) SCC 335 and <CITATION> (1999 (3) SCC 259)].

8. In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations:

It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.

9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for <ORG> to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in <CITATION> ).

On careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415 , 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the <ORG> to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in divers situations. As a matter of fact they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the <ORG> for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred . The two types of actions are quite different in content, scope and impart [vide <CITATION> (supra)]. Mr. <NAME>, the learned Senior Advocate for the respondents herein being the accused persons, strongly relied upon the decisions of this <ORG> in the case of Dr. Sharma Nursing Home v. <ORG> 1998 (8) SCC 745 wherein this <ORG> observed: that findings of Section 420  has been rested only on the reception and did not go into the question whether the complainant and its accompanymen disclosed the essential ingredient of the offence under Section 420  namely, disclosed inducement. Mr. <NAME> upon reliance in Dr. <NAME> case (supra) also contended that Section 24 of the I.P.C has defined the word dishonesty to mean a deliberate intent to cause wrongful gain or wrongful loss. It has been the specific case of the complainant that from the beginning of the transaction there was a definite intent on the part of the accused persons to cause wrongful loss to the complainant. This aspect of the matter, however, has not been taken note of by the learned Single Judge. The decision of this <ORG> in Dr. <NAME> case (supra) thus does not lend any assistance to Mr. <NAME> in support of quashing of the criminal complaint. Some other decisions have also been cited but we do not feel it inclined to refer to the same except one noted above since they do not advance the case of the respondents in any way whatsoever. Considering the factual aspect of the matter, we unhesitatingly state, however, that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short circuited. We, thus, without expressing any opinion on the merits of the case allow the Appeal and set aside the impugned order of the High <ORG> and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of the same in accordance with the law with utmost expectation. Be it clarified however that observations as above in this judgment be not taken as an expression of opinion of ours.