Gujarat High Court
Adarsh vs Dhirajlal on 15 June, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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SCA/7116/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7116 of 2011
=========================================================
ADARSH
MULTI STATE CO OP BANK LTD - Petitioner(s)
Versus
DHIRAJLAL
PURSHOTAMDAS KANABAR & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MANISH S SHAH for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 15/06/2011
ORAL
ORDER
Leave to amend.
The petitioner - Co-operative Bank, who was applicant in Revision No.35 of 2011, preferred before the Gujarat State Co-operative Tribunal, Ahmedabad has approached this Court under Article 227 of the Constitution of India, challenging the order passed by the Gujarat State Co-operative Tribunal, Ahmedabad on 13.05.2011, rejecting the revision application preferred by the Bank, challenging the order passed by Board of Nominees in Summary Lavad Suit No.721 of 2005 below Exh.70 on 30.03.2011, ordering opening of the seal put-up by the Bank on the property in question and the Gujarat State Co-operative Tribunal, Ahmedabad did not interfere with the said order, however, imposed additional condition on the respondent that respondent shall not in any manner alienate the property in question.
The petitioner - Bank filed Lavad Suit No.633 of 2001 against the original borrower and present respondents. The said Lavad Suit decreed against all and thus, sum of Rs.3,97,037/- became due and payable by all the defendants. The Bank at the relevant time, acting pursuant to the decree, had attached the property of present respondent Nos.1 and 2. Present respondents preferred appeal challenging the decree and order passed by the Board of Nominees alongwith the Miscellaneous Application No.134 of 2005. The delay was not condoned, therefore, writ being Special Civil Application No.6687 of 2005 was preferred, wherein this Court vide order dated 15.04.2005, allowed the said petition and ordered that the appeal be decided, within the stipulated time. Therefore, the Tribunal partly allowed the appeal qua present respondent Nos.1 and 2 and remanded the matter back to the Nominees' Court for adjudication and in those proceedings, the application being Exh.70 came to be filed by respondent Nos.1 and 2 for seeking lifting of attachment and opening of the seal as the decree did not survive qua them. The Board of Nominees passed order on 30.03.2011 to open the seal from the property in question. Being aggrieved by the order of the Board of Nominees, present petitioner preferred Revision Application No.35 of 2011, which came to be disposed of, without interfering with the order dated 30.03.2011 passed by the Board of Nominees Court and by imposing additional condition not to alienate the property.
Learned advocate for the petitioner submitted that Guarantor could not have been permitted to enjoy the property as they were equally liable to make the payment. However, he has very fairly submitted that the original order where under the matter was remanded qua present respondent Nos.1 and 2 was the subject matter of writ petition being Special Civil Application No.17790 of 2005, which came to be rejected on 11.12.2008. Now, if the suit is prolonged then, the petitioner will left with nothing to realise his debts as his principal borrower has nothing to offer nor he has anything where from decreed amount could be recovered.
Learned advocate Mr.G.R.Thacker submitted that he has instruction to appear in this matter, though caveat is not filed. He would file his Vakalatnama during the course of the day. He has submitted that he has instruction that if the Court is inclined to fix time limit, then, they shall co-operate in having suit disposed of, which is pending before the Board of Nominees.
This Court is of the view that order impugned need not be interfered with as the order cannot be said to be illegal and contrary to the provisions of law. The Court has very limited jurisdiction under Article 227 of the Constitution of India and when it is brought on the record that the original decree qua respondent Nos.1 and 2 is quashed and set aside and the matter is remanded back for adjudication qua their responsibility, then, as on date there is no justification for continuing seals on the property. The seals on the property came to be affixed because there existed a valid decree against respondent Nos.1 and 2, but, when Exh.70 application came to be allowed, there existed no decree, which can be justified seal on the property. Therefore, in my view, when the Tribunal has not interfered with the order and imposed additional condition, where under respondent Nos.1 and 2 are directed not to alienate the property, is just and proper and therefore, the Court cannot interfere under Article 227 of the Constitution of India. However, it is submitted by learned advocate for respondent Nos.1 and 2 that the suit which is pending before the Board of Nominees is required to be expeditiously disposed of.
The Tribunal has given the direction to the Board of Nominees to disposed of the suit within 3(Three) months. All the parties directed to adhere to that and the Board of Nominees shall disposed of the suit as soon as possible, within the time limit, prescribed by the Tribunal. The matter is disposed of. No order as to costs.
[S.R.BRAHMBHATT, J.] ..mitesh..
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