Agricultural loans & maintainiblity of suit in civil courts

 Whether civil suit  filed in civil court with a relief prayed of nature coming in the preview of civil court , suit would be maintainable ?

In Rajasthan , Banks financed agricultural loan to borrowers with charge of agri land and charge created over land under special statute Rajasthan credit operation removal of difficulties act 1974  and rules framed therein of rule 1976 

The question was  a very legal issue when bank filed a suit in civil court of Revovery against  finance to agriculturist with the charge / mortgage in guarantee 

The point for determination was when Rajasthan tenancy act specifically shows about suits related to mortgages are under preview of  jurisdiction of Rajasthan tenancy act 

Sec 43 of Rajasthan tenancy act reproduced here 

1)  khatedar  tenant or with the general or special permission of the state govt or any officer authorized by it in this behalf , s Gair khatedar tenant May hypothecate or mortgage his interest in the whole or part of his holding for the purpose of obtaining loan from the state govt or a land development bank as defined in the Raj cooperative societies Act 1965 or a cooperative society registered or deemed to be registered as such under the said Act or any scheduled bank  or any other institution notified by the state govt in that behalf 

Further in pursuance of section 43 of tha Act if mortgage is created residuary entry 35 of the Third schedule of Act is attracted 

The question whether bsnk mortgage is outside the scope of the Act ? 

Supreme Court in a reported case title Bsnk of Baroda v/s Moti Bhai ors decided on 29/01/1985 AIR 1985 Supreme Court page 545 clarified the jurisdiction of civil court and set aside the judgement of High court while holding that no doubt the mortgage was executed in the case was in persuance to sec 43 of Raj tenancy Act but the business of the Bank is not to lend money on mortgage but the business is only to lend money and property is  mortgaged under guarantee / mortgage deed and it is a commercial transaction 

Further Supreme Court observed that a suit should be perused in the substance of the matter not in the form of the suit 

On perusal it has been found that suit is basically for recovering the amount which is due to respondents on the basis of Promissory note executed by respondent and guarantee by redd Ad pkndeng number 2& 3

The relief in suit sought by Bank is that the suit should be decreed for the re payment of amount due from the respondents by the second prayer the Bank has asked that in case of non payment of the decretal amount the mortgaged property should be brought to sale and if proceeds of sale is not enough yo meet the decretal liability , the other movable and immovable property of respondent should be put at sale 

Further it was held that the suit is not to enforce mortgage if the mortgage not having been executed under sec 43 of Raj tenancy Acf the residuary entry 35 mentioned in schedule can have no application   When the entry is out of way there is no other provision in the Acf which would apply to the instant suit thus the civil court had jurisdiction 

 

Schedule iii  

Fertiliser control order 1985 read with EC Act

 Law insights revealing a depth study and collection of facts accruing from judgements , the book named relief strategy in fertiliser control order might help upon law point to researcher , academician   advocates dealing cases   This book is not advice but it simply shows when particular facts arises , relief strategy can be prepared to get justice if really injustice being caused in technically and breach of clause of order , that vitiate the whole proceedings of sampling 

This e -book available upon various ebook store  The book bring ist book May have some error in publishing but it has given a good experience to me in how e book publication reveals a different path where a different atmosphere creating a different feelings  as we have an different atmosphere and feelings in blogging , taste is quite different 

This is like satisfaction in expressing few words and lot of sentence a task where we read  to understand few words , journey  is same but blogger shows the destination like riding in aircraft , however it’s a test of mind , some may found good in book as a best friend no doubt , some are so speedy used to reach fast 

Intelligent blogger

 To say things in few words ,requires through study and gives to reader few minutes to read  it’s a  time saving , worth interesting and easy to read inspite of lengthy materials , this is my beginning in sharp and it would give benefit to researcher , searching to the point issues   who try to understand things in few words of legal  interpretation  ,who are already mature in grasping and they used to become up date in the subject within a few minutes , this blog would help

Dying declaration

 Sec 32 (1) of Indian evidence Act  1872  now restructured in sec 26 of BSA 2023

When it relates to cause of death : when the statement is made by a person as to the cause of his death , or as to any of the circumstances of the transaction which resulted in his death , in cases in which the cause of that person’s death comes in to question , such statement are relevant whether the person who made them was or was not , at the time when they were made , under expectation of death and whatever may be the nature of proceeding in which the cause of his death comes in to question 

Corpus Juris Secundum vol XL page 1283 & American jurist also interpret weighting of dying declaration in what circumstances under which they were made , whether it was outside influence ,sprit of  revenge , deceased not cross examined  ,under  expectation of death or not , these are the questions raised for the cause of death 

The principle on which dying declaration is admitted in evidence “ 

Statement having truth ness and also said voluntarily are the factors for making conviction by court 

Hon’ ble supreme court in his judgement  2023 INSC 758 Irphan @ Naka v state of UP explained that there is no hard & fast rule for determining when a dying declaration should be accepted the duty of court is to decide this question of  in the facts and surrounding and be fully convinced of the truthfulness of the same 

Certain factors considered to determination , however they will only affect the weight of dying declaration and not its admissibility

1) whether the person making them was or statement was in expectation of death ?

7)

2) whether the dying declaration was made at the earliest opportunity ?

3! Whether there is any reasonable suspicion to believe the dying declaration as put in the mouth of the dying person ?

4)whether there is any dying declaration was a product of prompting , tutoring or leading at the instance of police or any interested party ?

5) whether the statement was not recorded properly ?

6! Whether there is any dying declarant  had opportunity to clearly observe the incident ?

7) whether there is any dying declaration has been consistent throughout ?

8) whether there dying declaration in itself is a manifestation of/ fiction of the dying persons imagination of what he thinks transpired ?

9) whether the dying declaration was itself voluntary ?

10) in case of multiple dying declarations , whether there is any first one inspires truth and consistent with the other dying declaration was a?

11) whether as per the injuries it would have been impossible for the deceased to make a dying declaration ?

Supreme Court in this judgement further relied the reported judgement title Sujt Biswas v state of Assam (2013)12,SCC 406 in which it was held that :

The court has a duty to ensure that mere conjunctures or suspicion don't take place of legal proof 

The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand , then the benefit of doubt must be given to accused keeping in mind that a reasonable doubt is not an imaginary , trivial or merely probable doubt but a fair doubt based upon reason and common sense 

To Think & To understand

 These phrases have immense effect upon our life , Our life rounds between two phrases and we spend our life to understand the real things 

In our Hindu joint family our relations are so interrelated some time we surrender our emotions and even rights for the pious tie of joint family 

The principle to think and to understand applies in our every  area of life , this principle is not related to our joint family only  but it applies in each and every step we proceed in our daily life 

Our logics are some related to principles and some are  very practical   Some time our logics are tried by courts and the battle comes in last when we take last breath of judgement of final court 

This process to think and to understand is time consuming but it gives a satisfaction when resolved by the principle of understanding 

The gap between to think and to understand resolved some time by our mutual consent and this is a principle where we surrender our logics for the shake of solution of “To understand “

Many battles in our history was fought for securing the result between to think and to understand the universal concept of justice 

Maintainability of suit against sarfaesi proceedings

 A civil suit  was filed by plaintiff third party smt  Prabha jain against Sarfaesi proceedings  initiated by central bank of india 

central bank filed application under order 7 rule 11 of CPC claiming suit is barred under section  17 of the sarfacie act and appeal is the only remedy to DRT 

Trial court rejected application under order 7 rule 11 and bank went to high court against rejection of application &  high court accepted the appeal of central Bank and held  that trial court has no jurisdiction to try the case and  accepted appeal of bank

The matter went in Supreme Court by respondent / original plaintiff and Supreme Court observed the relief prayed in suit and documents pertaining to and  concluded that suit is maintainable as the sale deed and mortgage deed was executed without making partition of share in property and prayer in suit was prayed of document of sale to be declared  nullity and sec 17 of Sarfaesi act does not oust the jurisdiction of “ any  person” The question of validity of sale deed can not be decided by DRT The only argument posed by bank  that under sec 34 of Sarfaesi civil court has no jurisdiction to try the suit The jurisdiction to declare sale deed or a mortgage deed illegal is vested with civil court under sec 9 of cpc 

DRT can never have the jurisdiction to decide such civil disputes of title between a third party & borrower 

Number of appeals of Banks were also decided by common judgement where matter of adoption in title were involved and Supreme Court dismissed these appeals of bank and order of high court of Madhya Pradesh was set aside 

This was in essence  in reported case title  central Bank of India & ors v/s  Prabha jain & ors  civil appeal number 1876 of 2016 judgement delivered on dt 09/01/2025 

Rules inconsistencies to Act

 Supreme Court ordered in appeal  of dismissed writ  filed in high court , that particular rule framed in statue if is inconsistent to provisions of act , to be declared ultra virus and accepted appeal  This was held in civil appeal number 3954/2025! K Gopi v/s The sub registrar & ors  decided on 07/04/2025 

High court relied upon rule 55A(I) and dismissed writ Supreme Court found that rule making power under section  69 can not be exercised to make a rule inconsistent to registration act 1908 and declared rule 55A(I) to be ultra virus and accepted appeal