Gujarat High Court
Josephbhai Micle Patel & 2 vs Surat People Cooperative Bank ... on 19 March, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/11490/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11490 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 11493 of 2014
===================================================
JOSEPHBHAI MICLE PATEL & 2....Petitioner(s) Versus SURAT PEOPLE COOPERATIVE BANK LIMITEDSURAT &
2....Respondent(s) =================================================== Appearance:
MR JK PARMAR, ADVOCATE for Petitioner(s) No. 1 3 MR RAVINDRA SHAH, ADVOCATE for Respondent(s) No.12 =================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 19/03/2015 ORAL (COMMON) ORDER (1) As in this group of petitions identical prayers are prayed for, the same were heard together and are disposed of by this Court common order.
(2) Heard Mr.J.K.Parmar, learned advocate for the petitioners, and Mr.Ravindra Shah, learned advocate for respondent Nos.1 and 2, on caveat.
(3) By way of this group of petitions under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
"[A] xxx xxx xxx [B] Your Lordships may be pleased to issue a writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ/s, order/s and/or direction/s quashing and setting aside the auction proceedings Page 1 of 10 C/SCA/11490/2014 ORDER held by the respondent No.1 and 2, for recovery of dues of the alleged dues as per communication issued by the respondent No.2 to the petitioner No.1 dtd.17/3/2012 and sale of the property of the petitioners and to hold and declare that the auction and sale conducted by the respondents and sale of the property of the petitioners being B/13, Jivkornagar2, Bhatar Road, Surat by the respondents as per communication dtd.17/3/2012 for sale of the property in favour of the respondent No.3 is illegal and further be pleased to direct the respondents to handover back the possession of the aforesaid premises of the petitioners to the petitioners forthwith.
[C] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to handover back the actual and physical possession of the property of the petitioners being B/13, Jivkornagar2, Bhatar Road, Surat, to the petitioners forthwith.
[D] Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the petitioners in the interest of justice."
(4) As rightly pointed out by the learned advocate for respondent Nos.1 and 2 that two of the petitioners herein (i.e. petitioner No.1 and 2) had filed Special Civil Application Nos.75317534/2012, copy of memo of SCA No.7531/12 is provided by the learned advocate for respondent Nos.1 and 2 for perusal of the court, wherein the petitioners therein had prayed for the following reliefs:
"[A] xxx xxx xxx [B] Your Lordships may be pleased to issue a writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ/s, order/s, and/or direction/s quashing and setting aside the order Page 2 of 10 C/SCA/11490/2014 ORDER passed by the learned Gujarat State Cooperative Tribunal, Ahmedabad in Miscellaneous Application No.345 of 2009 dtd.22/7/2011 as well as judgment and decree passed by the learned Board of Nominees, Surat in Lavad Suit No.69 of 2002 dtd.18/10/2005.
[C] Your Lordships may be pleased to issue a writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ/s, order/s, and/or direction/s quashing and setting aside the auction proceedings held by the respondent No.1 and 2, for recovery of dues of the alleged dues as per communication issued by the respondent No.2 to the petitioner No.1 dtd.17/3/2012 and sale of the property of the petitioners and to hold and declare that the auction and sale conducted by the respondents and sale of the property of the petitioners being B/13, Jivkornagar2, Bhatar Road, Surat by the respondents as per communication dtd.17/3/2012 is illegal.
[D] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents not to take the actual and physical possession of the property of the petitioners being B/13, Jivkornagar2, Bhatar Road, Surat, from the petitioners and not to disturb the possession of the petitioners and further be pleased to stay the execution, operation and implementation of the order passed by the learned Gujarat State Cooperative Tribunal, Ahmedabad in Miscellaneous Application No.345 of 2009 dtd.22/7/2011 as well as judgment and decree passed by the learned Board of Nominees, Surat in Lavad Suit No.69 of 2002 dtd.18/10/2005.
(E) Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the petitioners in the interest of justice."
(5) It is noteworthy that this Court (Coram:
K.S.Jhaveri, J) admitted the aforesaid SCA Nos.75317534/2012 vide (common) order dated 10.07.2012 and had observed thus:
"Draft amendment is granted. To be carried out forthwith.
Rule returnable on 28.08.2012.Page 3 of 10 C/SCA/11490/2014 ORDER
Rule is issued only on the clear understanding that 30% of the decretal amount shall be deposited by the petitioner with the Registry of this Court within a period of four weeks from today. If the amount is not deposited by the petitioner within the stipulated period, rule issued by this Court shall stand discharged and the petition shall stand dismissed.
Further amount of 70% will be deposited as may be directed by this Court while condoning the delay. Direct service is permitted."
(6) It is also a matter of record that the petitioners did not pay anything and did not comply with the aforesaid (common) order dated 10.07.2012 and therefore the said group of petitions came to be dismissed vide (common) order dated 28.08.2012 wherein this Court observed as under:
"In spite of the order dated 10.07.2012 passed by this Court, learned advocate for the petitioner has neither carried out the amendment in the matter nor has he deposited the amount with the Registry of this Court as directed by this Court within the stipulated time. In that view of the matter, these petitions stand dismissed on the ground of non compliance of the order of this Court. Rule is discharged."
(7) Prayers prayed for in the present petition(s) as well as in the earlier round of petitions i.e. SCA Nos.75317534/2012 show that same issue is being raised after almost two years. Learned advocate for the petitioners has contended that the respondentThe Surat People Cooperative Bank Limited, Surat, Inara Housing Finance Limited and Bank of Baroda Page 4 of 10 C/SCA/11490/2014 ORDER have jointly auctioned the premises/property belonging to the petitioners and in fact possession is also given to the purchaser(s) on 30.05.2014. Learned advocate for the petitioners further contended that pursuant to the sale notice given by the competent authority the petitioners asked for time and showed willingness to pay the outstanding dues. It is further submitted that such request was not acceded to by the bank authorities and ultimately the premises/property has been auctioned. It is also submitted that the petitioners had obtained loan of Rs.5,00,000/ and out of which the petitioners could pay Rs.1.52 lakhs. Learned advocate for the petitioners has repeatedly submitted before this Court that the petitioners are ready and willing to pay the outstanding dues of the Bank.
(8) Per contra, Mr.Ravindra Shah, learned advocate for respondent Nos.1 and 2, on caveat, has raised preliminary objection to the effect that the present petitions are in the form of the second round of litigation(s) with identical prayers. It is submitted that even the earlier petitions i.e. SCA Nos.7531 7534/2012 were admitted by this Court vide order (common) dated 10.07.2012 and Page 5 of 10 C/SCA/11490/2014 ORDER thereafter upon failure to comply with the conditions imposed by this Court while admitting the said petitions, the said petitions came to be dismissed vide (common) order dated 28.08.2012 and thereafter auction proceedings were conducted and the property/ premises belonging to the petitioners was sold and possession thereof is transferred to the purchaser(s). It is also submitted that except bare words submitted by the learned advocate for the petitioners during course of hearing even after the earlier round of litigations, the petitioners have not paid anything, much less as per the conditions imposed by this Court in the earlier round of litigations. Learned advocate for respondent Nos.1 and 2, on instructions, submits that even during course of hearing before this Court, no attempt was made on behalf of the petitioners to even pay the outstanding dues. It is further submitted that the respondent Bank, on the basis of the judgment and award dated 18.10.2005 passed by Board of Nominees, Surat, in Lavad Suit No.69/2002 have recovered the amount. Attention was drawn of this Court that the said judgment and award of Board of Nominees came to be challenged by the petitioners by way of an Appeal before Gujarat State Cooperative Tribunal, Page 6 of 10 C/SCA/11490/2014 ORDER Ahmedabad, which came to be dismissed as even delay was not condoned.
No other or further submissions were raised by the learned counsel for the respective parties.
(9) On bare comparison of the prayers prayed for in the present petition(s) as well as in the earlier round of petitions i.e. SCA Nos.7531 7534/2012, it clearly transpires that the challenge which was made in the earlier petitions are virtually the same, except the fact that in the present petition(s) the prayer, inter alia, prayed for is to direct the respondents to handover possession of the aforesaid premises of the petitioners to the petitioners forthwith and have prayed for other identical prayers, which were prayed in the earlier petitions.
(10) Record indicates that Lavad Suit No.69/2002 instituted against the petitioners came to be allowed vide judgment and award dated 18.10.2005, which came to be challenged by one of the present petitioners and another by way of filing appeal, accompanied with Misc. Application No.345/2009 for condonation of delay before Gujarat State Cooperative Page 7 of 10 C/SCA/11490/2014 ORDER Tribunal, Ahmedabad, which came to be dismissed vide judgment and order dated 22.07.2011 and even delay was not condoned.
(11) It may be noted that the earlier petitions i.e. SCA Nos.75317534/2012 were filed challenging judgment and award passed in Lavad Suit No.69/2002 as well as judgment rendered in Misc. Application No.345/2009, which came to be admitted by this Court vide (common) order dated 10.07.2012. However, on noncompliance of the conditions of the said order of admission, the said group of petitions were dismissed. Thus, the judgment and award rendered by Board of Nominees, Surat, in Lavad Suit No.69/2002 dated 18.10.2005 has become final. It is noteworthy that no such challenge is made in the present petition(s). This shows that the petitioners are well aware of the fact that in the earlier petitions wherein the petitioners had also challenged order passed by the Gujarat State Cooperative Tribunal, Ahmedabad, rendered in Misc. Application No.345 of 2009 dated 22.07.2011 as well as judgment and award passed by Board of Nominees, Surat, in Lavad Suit No.69/2002 dated 18.10.2005 and therefore has very conveniently not prayed for such prayer(s) in the present petitions.
Page 8 of 10 C/SCA/11490/2014 ORDER(12) Record further indicates that having obtained loan on hypothication for a truck since nine years the petitioners are avoiding payment thereof. Record also indicates that auction is already held on 17.03.2012 and possession is already handed over to the purchaser(s). Petitions are therefore thoroughly misconceived. The contentions which are now raised by the learned advocate for the petitioners were already raised in the earlier petitions i.e. SCA Nos.7531 7534/2012, which have been dismissed by this Court vide (common) order dated 28.08.2012 and therefore the petitioners cannot be now permitted to raise same question(s) again in the second round of litigations by couching the prayers though prayed for in different manner. Having obtained loan it is incumbent upon the petitioners to repay it, as per the conditions on which the said loan is obtained by the petitioners.
(13) It is further noteworthy that as averred by the petitioners themselves in Paragraph No.12 wherein it is, inter alia, stated that even if the truck is sold then also there was shortfall and some loan amount was remaining due and therefore the petitioners had agreed to sell the house of the petitioners by Page 9 of 10 C/SCA/11490/2014 ORDER auction for repayment of the loan amount. Record further indicates that such an attempt was made in 2012 and it stood concluded in 2013.
(14) This Court finds that the present petitions are nothing but a further attempt on the part of the petitioners to throttle the recovery proceedings, which are taken on the basis of a valid award dated 18.10.2005 passed by Board of Nominees, Surat, in Lavad Suit No.69/2002. Record indicates that the petitioners are already dispossessed and therefore the prayers prayed for in the present petition(s) cannot be granted.
(15) Petitions being misconceived are hereby dismissed in limine. Considering the fact that the petitioners have stated all the facts of the earlier petitions, this Court restrains itself from imposing any costs.
(16) Registry to place a copy of this order in the connected matters.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh[pps]* Page 10 of 10