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Gujarat High Court

Dineshbhai Jamnadasbhai Jasani vs Veraval Mercantile Cooperative Bank ... on 28 March, 2022

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

     C/SCA/18778/2018                                      ORDER DATED: 28/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 18778 of 2018

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            DINESHBHAI JAMNADASBHAI JASANI
                         Versus
VERAVAL MERCANTILE COOPERATIVE BANK LTD. RAJKOT BRANCH &
                        3 other(s)
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
MR ASHISH H SHAH(2142) for the Respondent(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 2,3,4
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                 Date : 28/03/2022

                                  ORAL ORDER

1. By this petition under Article 227 of the Constitution of India, the petitioner has approached for the following reliefs:-

"(A) Your Lordships be pleased to issue writ of mandamus or certiorari, or any other appropriate writ, order and/or direction, quashing and setting aside the order dated 18.10.2012 passed by Ld. Board of nominees, Rajkot below Application Ex. 18 in Summary Lavad Case no. 38/2012 (Annexure A) and the order dated 20.04.2018 passed by the Hon'ble Gujarat State Cooperative Tribunal in Revision Application No. 108/2017 (Annexure B), and consequently be pleased to direct the Respondent No. 1 Bank to remove the seal applied by it on the shop no. 218, situated on the second floor of Satguru Arcade, Dhebar road, Rajkot belonging to the petitioner, in the interest of justice; (B) Pending admission and final hearing of the Page 1 of 5 Downloaded on : Sat Dec 24 13:45:03 IST 2022 C/SCA/18778/2018 ORDER DATED: 28/03/2022 present petition, Your Lordships be pleased to grant stay of operation, execution and implementation of impugned order passed by Ld. Board of Nominees, Rajkot below Application Ex. 18 in Summary Lavad Case no. 38/2012 (Annexure A) and the order dated 20.04.2018 passed by the Hon'ble Gujarat State Cooperative Tribunal in Revision Application No. 108/2017 (Annexure B) and be pleased to issue appropriate directions to the Respondent no. 1 bank for removing the seal applied by it on the 218, situated on the second floor of Satguru Arcade, Dhebar road, Rajkot belonging to the petitioner, on such terms and conditions at this Hon'ble Court may deem it just and proper, in the interest of justice; (C) Your Lordships be pleased to grant such other and further reliefs in favour of the petitioner, as deemed fit, just and proper in the interest of justice;"

2. It is the case of the petitioner that the petitioner is the owner of the Shop No. 218, Satguru Arcade, Dhebar road, Rajkot. The petitioner purchased the said shop on 17th March, 2008 along with Shop No. 219 by registered sell deed. The Respondent Nos 2 and 3, who happens to be the neighbors, were in possession of Shop No. 210 in the said shopping complex.

3. It is the case of the petitioner that the respondent Nos. 2 & 3 requested the petitioner for using the shop No. 218 of the petitioner for some period. According to the petitioner, on 5.07.2011, the officer of the respondent No. 1 - Bank applied Page 2 of 5 Downloaded on : Sat Dec 24 13:45:03 IST 2022 C/SCA/18778/2018 ORDER DATED: 28/03/2022 the seal on Shop No. 218 stating that respondent No. 1 has preferred Lavad Case No. 38/2012 before the Board of Nominees, Rajkot against respondent Nos. 2 to 4 and pursuant to the order passed in the said suit, the seal was applied. The petitioner has, therefore, approached this Court for aforesaid reliefs.

4. Learned Advocate Mr. Pratik Jasani submitted that the respondent No. 1 - Bank has no lien over the shop No. 218. Learned Advocate Mr. Jasani invited the attention of the Court to Ex. 19 filed by the respondent No. 1 - Bank before the Board of Nominees in Summary Lavad Case No. 38/2012 at Annexure G to point out that in the reply to the application filed by the petitioner, it was agreed by the respondent No. 1 - Bank that only the goods lying in the shop No. 218 was hypothecated with the respondent No.1 -Bank. It was, therefore, submitted that the respondent No. 1 is required to remove the goods from the shop and handover the possession of the shop No. 218 to the petitioner.

5. On the other hand, learned Advocate Mr. Ashish Shah submitted that respondent No. 1 bank never applied the seal on its own on the shop No. 218 as it was pursuant to the order passed by the Board of Nominees, the seal was applied.

6. The Board of Nominees vide 18.10.2012 has rejected the application of the petitioner after considering the Panchnama drawn by the Court Page 3 of 5 Downloaded on : Sat Dec 24 13:45:03 IST 2022 C/SCA/18778/2018 ORDER DATED: 28/03/2022 Commissioner on the ground that goods in the Shop No. 218 was hypothecated with the respondent No. 1 and the petitioner was not in possession of the Shop No. 218 when the seal was applied on the said shop. The Board of Nominees further observed in the said order that as the original borrowers did not remain present before the Board of Nominees, the seal cannot be opened.

7. On perusal of the order passed by the Board of Nominees as well as the Tribunal rejecting the application of the petitioner to open the seal on the shop no. 218, it appears that it is not the case of the respondent No.1 that the Shop No. 218 was mortgaged with the respondent No. 1-Bank. Respondent No. 1-Bank is only concerned with the goods lying in the Shop No. 218 which was hypotecated by respondent Nos. 2 to 4.

cannot be permitted to apply seal on the ground that the goods hypothecated to respondent No. 1- Bank is lying therein. The Board of Nominees has, therefore, committed an error by rejecting the application filed by the petitioner to remove the seal and to permit the respondent No.1-Bank to remove the goods lying in the Shop No. 218.

9. The petition is therefore allowed. Board of Nominees, Rajkot is directed to appoint a Court Commissioner to remove the seal applied upon the Shop No. 218 situated on the second floor of Page 4 of 5 Downloaded on : Sat Dec 24 13:45:03 IST 2022 C/SCA/18778/2018 ORDER DATED: 28/03/2022 Satguru Arcade, Dhebar road, Rajkot by drawing a Panchnama in presence of the petitioner and the responsible Officer of the respondent No.1-Bank. Respondent No.1-Bank, thereafter, is permitted to remove the goods lying in the Shop No. 218 and handover the possession of Shop No. 218 to the petitioner.

10. Such exercise shall be completed within four weeks from the date of receipt of this order. Notice is discharged.

(BHARGAV D. KARIA, J) MANISH MISHRA Page 5 of 5 Downloaded on : Sat Dec 24 13:45:03 IST 2022