Gujarat High Court
Mahin Rameshchandra Modi vs Bhagyoday Co Op Bank Ltd on 5 March, 2020
Equivalent citations: AIR 2021 (NOC) 191 (GUJ.), AIRONLINE 2020 GUJ 713
Author: R.P.Dholaria
Bench: R.P.Dholaria
C/SCA/15605/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15605 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MAHIN RAMESHCHANDRA MODI
Versus
BHAGYODAY CO OP BANK LTD & 6 other(s)
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Appearance:
MR PRABHAV MEHTA, ADVOCATE FOR MR MAUNISH T PATHAK(5892)
for the Petitioner(s) No. 1
MR UI VYAS(1000) for the Respondent(s) No. 1
MR. KARAN U VYAS(6992) for the Respondent(s) No. 1
MS DHRUMA U VYAS(6850) for the Respondent(s) No. 1
NOTICE UNSERVED(8) for the Respondent(s) No. 2,3,4,5,6,7
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 05/03/2020
ORAL JUDGMENT
1. Heard Mr.Prabhav Mehta, learned advocate Page 1 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020 C/SCA/15605/2018 JUDGMENT for Mr.M.T.Pathak,learned advocate for the petitioner and Mr.U.I.Vyas, learned advocate for respondent No.1.
2. Brief facts of the case may be stated that the petitioner is a judgment debtor, whereas respondent No.1 is a decree holder. The Record and Proceedings indicates that as the loanee failed to deposit the amount advanced to him, in consequence thereof, the bank filed the Lavad Suit before the learned Board of Nominees appointed under the provisions of the Gujarat Cooperative Societies Act 1961 ("the Cooperative Act" for short). The said Lavad Suit came to be decreed for the amount of Rs.17,40,166/- and the execution petition was also filed for recovery of decreetal amount along with interest. The Record and Proceedings also indicates that learned Board of Nominees delivered the judgment on 16.1.2001 and the Registrar, Cooperative Societies, Gujarat State issued the recovery certificate on 18.6.2001. Thereafter also, the loanee failed to deposit the entire decreetal amount and in consequence thereof, the decree holder presented the execution petition before the learned Civil Court after obtaining necessary certificate under section 103 of the Cooperative Act on 13.6.2013.
3. Against the aforesaid execution petition, the present petitioner filed objections and contended that period of limitation would Page 2 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020 C/SCA/15605/2018 JUDGMENT commence from the date of the order passed by learned Nominees under section 101 and not from the date of the order passed under section 103 of the Cooperative Act whereunder the recovery certificate was issued by the Registrar. Learned Executing Court elaborately dealt with the objections raised by the judgment debtor and pleased to reject the objections and held that the decree is not barred by period of limitation and it is executable decree. Precisely, the aforesaid order has been challenged by invoking the provisions of Article 227, though the petition is titled as under Article 226 of the Constitution of India, inter alia, contending that learned Executing Court failed to consider that period of limitation commences from the date of the order passed by learned Nominees and not from the date of recovery certificate issued by the Registrar. Precisely, such controversy is involved in the present petition.
4. It is the main contention of Mr.Prabhav Mehta, learned advocate for the petitioner that period of limitation would commence from the date of the order passed by learned Nominees under section 101 and not from the date of the order passed under section 103 of the Cooperative Act whereunder the recovery certificate was issued by the Registrar. In support of his submissions, Mr.Mehta also places reliance upon unreported judgment delivered in Special Civil Application Page 3 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020 C/SCA/15605/2018 JUDGMENT No.9701 of 2005 with Special Civil Application No.9702 of 2005, the decision in the case of W.B.Essential Commodities Supply Corporation Vs Swadesh Agro Farming & Storage Private Limited, reported in (1999) 8 SCC 315 and the decision in the case of Dr.Chiranjilal (D) By Lrs Vs Haridas (D) By Lrs., reported in (2005) 10 SCC 746.
5. On the other hand, Mr.U.I.Vyas, learned advocate for respondent No.1 has vehemently opposed the present petition and contended that period of limitation would commence from the date of the order passed by learned Registrar under section 103 of the Cooperative Act whereunder the recovery certificate was issued. In support of his submission, Mr.Vyas has placed reliance upon the decision in the case as reported in 1985 GLR 1039 in the case of Jethabhai Chhaganbhai Chamar and others Vs A.K.Shah and requested this Court to dismiss the present petition.
6. Indisputably, there appears no dispute that execution proceedings could be initiated within a period of 12 years only. In the present case, controversy involved is as to whether period of limitation would commence from the date of the judgment delivered by learned Nominees under section 101 or from the date on which certificate of recovery was issued by the Registrar, Cooperative Societies, Gujarat State under section 103 of the Cooperative Act.
Page 4 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020C/SCA/15605/2018 JUDGMENT 7. In order to consider the rival
submissions, it would be fruitful to refer to section 103 of the Cooperative Act which reads as under.
"Section 103 :
Every order passed by the Registrar or a person authorised by him under section 93, or by the Registrar, his nominee or board of nominees under section 100 or 101, every order passed in appeal under section 102, every order passed by a Liquidator under section 110, every order passed by the State Government in appeal against orders passed under section 110, and every order passed in revision under section 155, shall, if not carried out,- V of 1908
(a) on a certificate signed by the Registrar or a Liquidator, be deemed, to be a decree of a Civil Court, as denned in clause (2) of section 2 of the Code of Civil Procedure, 1908(V of 1908) and shall, be executed in the same mannas as a decree of such Court, or
(b) be executed according to the provisions of the Land Revenue code and the rules there under for the time being in force for the recovery of arrears of land revenue:Page 5 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020
C/SCA/15605/2018 JUDGMENT Provided that, any application for the recovery in such manner of any such sum shall be made to the Collector, and shall be accompanied by a certificate signed by the Registrar, or by any Assistant Registrar to whom they said power has been delegated by the Registrar. Such application shall be made within twelve years from the date fixed in the order and if no such date is fixed, from the date of the order."
8. Mr.Mehta, learned advocate for the petitioner has tried to convince this Court that in the decision relied upon by Mr.Vyas, learned advocate for the respondent No.1 in the case of Jethabhai Chhaganbhai Chamar (supra), this Court considered the date of commencement of period of limitation from the date of pronouncement of the judgment by learned Nominees.
9. This Court has thoughtfully considered the provisions of law as well as factual scenario. This Court has also considered the decisions relied upon by Mr.Mehta, learned advocate appearing on behalf of the petitioner but the aforesaid three decisions relied upon by Mr.Mehta has no bearing with the factual scenario emerging out for consideration of this Court. In the aforesaid decisions, there was consideration Page 6 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020 C/SCA/15605/2018 JUDGMENT before the Honourable Apex Court and the High Court as regards to the drawl of decree after delivering the judgment by the Civil Court and due to some formalities, decree could not have been drawn, in that eventuality, in case of decree of the Civil Court, the date of the judgment is required to be reckoned for commencement of limitation. Here, in the instant case, the decree is not the decree of the Civil Court but the decree by virtue of the special provisions made under section 103 of the Cooperative Act as extracted above deems to have become decree by virtue of the aforesaid provisions of law and for becoming decree from the judgment rendered by learned Nominees under section 101 of the Cooperative Act, requisite certificate as envisaged under section 103 of the Cooperative Act is either required from the Registrar or the Liquidator as the case may be as provided above. Unless such certificate is issued by the authority as envisaged under section 103 of the Cooperative Act, the judgment rendered by learned Nominees remains merely a piece of paper and it would not be termed to be a "decree" and therefore, this Court while considering the direct issue as regards to period of limitation in the case of Jethabhai Chhaganbhai Chamar (supra), more particularly, paragraphs 2 and 4 clearly held that in either case, therefore, recovery proceedings become barred by limitation on expiry of 12 years from the date of issuance Page 7 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020 C/SCA/15605/2018 JUDGMENT of the certificate under section 103 of the Act and that finding is also based upon the provisions of law as contained in section 103 of the Cooperative Act wherein from section itself titled as "money how recovered", if any order made by any competent authority under the provisions of the Cooperative Act either under sections 93, 100, 101, 102, 110 or 115 only it becomes executable decree on the certificate signed by the Registrar and it is deemed to be a decree of Civil Court as defined under clause (2) of section 2 of the Code of Civil Procedure 1908 and shall be executable in the same manner of decree of such Court and therefore, unless the Registrar signs any order of money passed under the provisions of the Cooperative Act, it would not become executable decree as defined under the provisions of the CPC and it remains only an order and not "decree", whereas section 103 of the Cooperative Act clearly provides that such certificate signed by the Registrar shall be made within 12 years from the date either fixed by the Registrar or if not date is fixed, then from the date of issuance of certificate by the Registrar.
10. In view of the aforesaid clear position of law, since an individual statute i.e. Gujarat Cooperative Societies Act 1961 under which the authority passed an order as well as decree and its execution is in question and therefore, the decisions relied upon by Mr.Prabhav Mehta, Page 8 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020 C/SCA/15605/2018 JUDGMENT learned advocate for the petitioner, as referred above, would not be applicable to the peculiar facts and circumstances of the present case. Therefore, the petition is devoid of any merits and deserves dismissal.
11. In the result, the petition fails and the same is dismissed. Notice is discharged. No costs.
12. After dismissal of the present petition, a request is made by Mr.Mehta, learned advocate for the petitioner to continue interim arrangement made earlier by this Court. On the other hand, Mr.Vyas has vehemently opposed such request. In view of the above, interim arrangement made earlier while entertaining the present petition shall continue to operate for a period of 30 days from today.
(R.P.DHOLARIA, J) H.M. PATHAN Page 9 of 9 Downloaded on : Sun Jun 14 07:40:44 IST 2020