In the Court of Hon’ble Civil Judge (SD), Saket District Court,
New Delhi-110017
Suit No. 181/ 2018
Topic Assigned: Interlocutory order passed under Order 39, CPC
In the matter of:
National Bank …. Plaintiff / Applicant
Versus
Mr. Kalu and Sheru … Defendant / Non-Applicant)
Reply under Order 39 RULE 6 read with section 151 of Code of Civil
Procedure, 1908 praying for Setting aside the order passed by Ld. District
Judge
PROJECT for ‘CIVIL PROCEDURE CODE & LIMITATION ACT II’
Submitted by:
Aishanya Roy
PRN: 16010224056
Division: A ; Group: A
Batch: 2016-21
Symbiosis Law School, NOIDA
Symbiosis International (Deemed University), Pune
Under the guidance of:
Ms. Megha Nagpal
Assistant Professor
Symbiosis Law School, NOIDA
Symbiosis International (Deemed University), Pune
1
DECLARATION
(for Internal Assessment Project of Civil Procedure Code & Limitation Act II)
This Project based on a hypothetical civil dispute relating to Interlocutory order passed under order
39, CPC , submitted by the undersigned to Symbiosis Law School, NOIDA for the course “Civil
Procedure Code and Limitation Act II” as part of Internal Assessment is based on an imaginary situation
which has no relation to any person living or dead. The research work has not been submitted elsewhere
for award of any degree or any other purpose whatsoever.
The ‘remedy’ and ‘draft’ portion of the project has been submitted purely for understanding applicability
of provisions of the Code of Civil Procedure, 1908 and/or the Limitation Act, 1963 as part of project for
the aforesaid course. The designation/s, if any, given in the project are purely hypothetical.
The contents of the project are original and not plagiarized. The material borrowed from other sources
and incorporated in the project has been duly acknowledged.
I have also taken due care that the contents of my project are not similar or same as another learner‘s
project for the aforesaid course.
I understand that I could be held responsible and accountable for plagiarism, if any, even if detected later.
(Signature of the Learner)
Date: January 31, 2020
Name of the Learner: Aishanya Roy
PRN:16010224056
Batch:2016-21
Programme: BBA.LLB
GROUP:A
Symbiosis Law School, NOIDA Symbiosis International (Deemed University), Pune
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INDEX
S. No Particulars Page No
1 Hypothetical Sitauation 4
2 Debatable question 4
3 Case Analysis 5-6
4 Answer to the debatable 6
question
5 Remedy to the aggrieved 7
party
6 Reply to the Order 8
7 Prayer 8
8 Explanatory Note 9
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HYPOTHETICAL SITUATION:
A sum of Rs. 10,00,000/- was loaned to Kalu (defendant) so that he could buy a Truck, Sheru
(defendant no.2) was the guarantor for the timely repayment of the abovementioned loan. Kalu
brought the Truckwith the loan amount that was received. It is similarly asserted, although
disputed by means of the defendant, the Truck turned into hypothecated by the plaintiff No. 1 i.e.
National Bank
During pendency of the suit National Bank (plaintiff) filed an application under order 39 rules 6,
of the Civil Procedure Code for seizure of the Truck and its sale for restoration and recovery of
the loan amount.
QUESTION RAISED:
Whether or not the goods hypothecated by way of the respondent are maintainable under order
39 rule 6 examined with Section 151 of the Civil Procedure Code, 1908?
SECTION AND RULES APPLICABLE TO THE QUESTION SO RAISED:
ORDER 39, Rule 6 read with section 151 of the Civil Procedure Code,1908.
Order 39 rule 6 states that:
Power to order interim sale- The Court may, on the application of any part to a suit, order the
sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of
any movable property, being the subject-matter of such suit, or attached before judgement in
such suit, which is subject to speedy and natural decay, or which for any other just and sufficient
cause it may be desirable to have sold at once.
Section 151 of the Civil Procedure Code states that:
Saving of inherent powers of Court- Nothing in this Code shall be deemed to limit or otherwise
affect the inherent powers of the Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.
CASE LAWS:
1. M/S S.K Nagulu Coal Depot & Ors v. Syndicate Bank, R.P Road 1995 (1) CivilCC (A.P)
2. Chiranjilal v. Central Bank of India (1994) 80 CompCas 573 (M.P)
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ANALYSIS OF CASE LAWS:
1. M/S S.K Nagulu Coal Depot & Ors v. Syndicate Bank, R.P Road 1995 (1) CivilCC (A.P)
Issue
Whether the application under order 39 rule 6 read with section Section 151 C.P.C is
maintainable or not?
Rule
Order 39 rule 6 read with section 151 C.PC.
Analysis
The case was concerning the recovery of a sum of Rs 15,09,663/- from the petitioners in
reference to the loan advanced to the petitioners 1 and 3 by means of the bank for commercial
business functions. In this case the trial court observed that the bank has got lien over the
hypothecated inventory and can get the recovery and sell the same and the step may be taken
with the aid of the bank through the intervention of the court.
The learned contented that the application which was filed underneath Order 39 rule 6 of C.P.C
is unsuitable as the said rule is handiest applicable to the perishable items and such utility can be
filed under section 151 C.P.C. And the mixed sections are not maintainable.
There was an argument made that the counsel for the petitioner isn't right in filing that order 39
rule 6 is only confined to the case of goods which are situation to rapid and natural decay. It is
also stated that such interpretation would amount to ignoring the concluding rule which states
that meantime sale can be for some other simply and sufficient purpose. Even whilst assuming
that order 39 rule 6 has no application however nonetheless segment 151 of C.P.C could be
available to the respondent and plaintiff.
The application of the court cannot be invalid on the ground that it refers to an incorrect
provision of law or that it combines two one-of-a-kind provisions, one in all which has no utility.
Conclusion
In this situation the Court held that out of the sale proceeds realised, 50% will be paid over to the
bank for crediting the equal to the loan account of the petitioners and the remaining amount
shall be saved in deposit with the Court. The Civil Revision petition is dismissed.
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2. Chiranjilal v. Central Bank of India (1994) 80 CompCas 573 (M.P)
Issue
Whether along with the ongoing suit the non-applicant filed for the interim sale of the truck
under Order 39 rule 6 of C.P.C, 1908 valid?
Rule
Order 39 rule 6 of Civil Procedure Code, 1908
Analysis
This case is a revision petition due to the fact the prevailing applicant denied the fact of the
pledge with the bank and therefore surpassed the impugned order leading to a revision petition.
The lower courts have taken into consideration that a loan of Rs. 3,00,000 was taken by the
applicant from the bank on August 29, 1980, to buy 3 trucks and at the time of obtaining the
loan, the applicant entered into an agreement with the bank to pay Rs 10,000 in keeping with
month toward the payment of the principle and the interest, but he did no longer pay the quantity
as in line with the agreement, the truck is hypothecated with the bank in query. The bank has a
proper to get the relief by way of attachment and sale of the truck
The learned counsel for the applicant, argued that there might have been no order exceeded with
out keeping an enquiry about the factum of pledge. The order without an enquiry passed with the
aid of the lower court can't be held legal while the counsel for the non -applicant argued that the
position of law is well settled that after a vehicle is hypothecated with the financial institution,
the court can pass an order for the attachment and sale of the truck
The hypothecate can excercise his right of sale both privately or via the court. The order of the
court calling upon the proprietor to supply the truckss to the financial institution turned into held
to be proper.
Conclusion
In this case the Madhya Pradesh High Court was within the view that there was no need of the
lower court to interfere with the order surpassed and that the applicant turned into directed to
present the truck before the court docket for attachment and sale. The revision petition is
dismissed off.
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ANSWER TO THE DEBATABLE QUESTION:
As in the scenario that's regarding the A sum of Rs. 10,00,000/- was superior to this Kalu
defendant for the purchase of the Truck, Sheru (Defendant No 2) stood as a guarantor for due
repayment of the stated loan. The Truck was purchased with the loan so obtained. It is similarly
asserted, even though disputed with the aid of the defendant, the Truck was hypothecated via the
plaintiff No. 1 i.e. National Bank. During pendency of the healthy plaintiff filed an utility
underneath order 39 policies 6, of the Civil Procedure Code for seizure of the Truck and sale of it
for recovery of the loan amount. The question of law this is being raised in the gift state of affairs
is that whether the products hypothecated by way of the respondent are maintainable beneath
order 39 rule 6 examine with section 151 of the Civil Procedure Code, 1908?.
This question was raised in the case of Chiranjilal v. Central Bank of India (1994) 80 CompCas
573 (M.P) and the Madhya Pradesh Court was in favour of the financial institution due to the fact
the financial institution had hypothecated the truck and the financial institution could file an
software below order 39 rule 6 for the meantime sale in the course of the pendency of the fit.
Then once more the same query was raised in M/S S.K Nagulu Coal Depot & Ors v. Syndicate
Bank, R.P Road 1995 (1) CivilCC (A.P) talks about whether order 39 rule 6 combined with
section 151 C.P.C is maintainable or not because in the judgment they've handiest focused on the
first a part of the rule of thumb which states that it applies only to the rapid and the products
which get decay but now not the concluding part which states that period in-between sale can be
for any other simply and sufficient motive concerning the challenge count number. In this
situation the court held that out of the sale proceeds realised, 50% shall be paid over to the
financial institution for crediting the identical to the loan account of the petitioners and the
closing quantity will be saved in deposit within the Court.
REMEDY TO THE AGGRIEVED PARTY:
In both the cases mentioned above the parties could not pay the loan amount and the bank seized
their Trucksand they could pay 50% from their sale to the bank and remaining amount to the
Court as kept as deposit.
The applicable civil remedy to the aggrieved party i.e Kalu is a reply to order 39 rule 6 combined
with section 151 of Civil Procedure Code. By applying for an application beneath Section 151 of
C.P.C states Nothing in this code shall be deemed to limit or otherwise effect the inherent powers
of the court to make such orders as may be important for the ends of the justice or to prevent
abuse of the system of the court. In both the instances cited above the parties couldn't pay the
loan amount and the financial institution seized their Trucks and they could pay 50% from their
sale to the bank and remaining quantity to the Court as saved as deposit.
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In the Court of District Judge, SAKET
Execution No. 0614 / 2019
In the matter of:
National Bank ...Applicant
Versus
Mr Kalu And Sheru …Respondents
Reply under Order 39/rule 6 read with section 151 of Code of Civil Procedure,
1908 praying for Setting aside the order passed by Ld. District Judge
During the pendency of the suit, when the plaintiff asked for the seizure of the trucks which they
hypothecated to the respondents then the plaintiff were right in doing so because the respondents
could not pay the amount and the District Judge stated the application of the reply under order 39
rule 6 was valid and the learned judge had directed seizure of the Truck and the sale of the Truck
so that the plaintiff could recover their money from the respondents and court applying section
151 of the CPC because it talks about inherent powers of the court to make such orders as may
be necessary for the ends of the justice so that the bank could recover the money and not suffer
losses.
PRAYER
In the light of the facts and circumstances of the present Application and in the light of
the judgement cited herein above, it is most humbly submitted that this Hon’ble Court
maybe pleased to:
1. To set aside the revision petition.
2. Any other order as the Court deems fit.
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In the court of Civil Judge, Saket District, Kerala
Civil Suit No. 153 of 2019
In the matter of
National Bank.............................................................................................................Plaintiff
V.
Mr. Kalu & Sheru..............................................................................................Defendant
AFFIDAVIT
We, Kalu & Sheru, aged 44 and 48 years, do hereby solemnly affirm and
declare as under:
1. That I am well conversant with the facts of the present matter and
competent to depose this affidavit.
2. That I have read and understood the contents of the accompanying
Application which has been drafted by my counsel upon my instructions
and the contents of the same have been explained to me in vernacular
language and having understood the same, I confirm that the same are
true and correct to the best of my knowledge.
3. That the contents of the accompanying Application may be read as part
and parcel of this affidavit and the same are not reproduced here for the
sake of brevity.
DEPONENT
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VERIFICATION
I, the deponent named above, verify that the contents of the above affidavit
are true and correct to the best of my knowledge. No part of it is false and nothing
material has been concealed there from.
DEPONENT
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