Gujarat High Court
Smitaben Mahin Modi vs State Of Gujarat on 4 January, 2021
Author: Vineet Kothari
Bench: Vineet Kothari, Gita Gopi
C/LPA/1011/2015 ORDER
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/LETTERSPATENTAPPEALNO. 1011of 2015
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R/SPECIALCIVILAPPLICATIONNO. 11088of 2014
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SMITABENMAHINMODI Page 2 of 5 Downloaded on : Thu Jan 07 20:44:45 IST 2021 C/LPA/1011/2015 ORDER Versus STATEOF GUJARAT& 1 other(s) ========================================================== Appearance:
MRMAUNISHT PATHAK(5892)for the Appellant(s)No. 1 GOVERNMENTPLEADER(1)for the Respondent(s)No. 1 MRH.M. PARIKHfor the (64) for the Respondent(s)No. 2 ========================================================== CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MS. JUSTICE GITA GOPI Date: 04/01/2021 COMMONORALORDER (PER: HONOURABLEDR. JUSTICEVINEETKOTHARI)
1. The matters have been argued at some length. The learned counsel for the appellants has relied upon the judgment of learned single Judge of this Court in the case of Bhavnagar District Co-operative Bank Ltd. Vs. H.M. Joshi reported in 1985 (2) G.L.R. 1087, which is said to have been affirmed by the Division Bench of this Court, in the case of Bhavnagar District Co-operative Bank Ltd. Vs. State of Gujarat, reported in the same volume of Gujarat Law Reporter, namely, 1985 (2) G.L.R. 1380. The learned counsel for the appellants has contended that the liquidation proceedings under Section 114 of the Gujarat Co-operative Societies Act, 1961 shall be deemed to have been terminated upon the expiry of the outer limit of seven years from the date of the winding-up order.
2. However, the above contention is opposed by the learned counsel Mr. H.M. Parikh appearing for the respondent-Registrar, Co-operative Societies, by submitting that since no final report of the Official Liquidator providing details of the sale proceeds has been received in the present case, as envisaged under Section Page 3 of 5 Downloaded on : Thu Jan 07 20:44:45 IST 2021 C/LPA/1011/2015 ORDER 114(2) of the said Act, the proceedings cannot be said to have been terminated upon expiry of seven years from the date of the winding-up order by virtue of the deeming fiction of law. He submitted that the said judgment of the Division Bench of this Court in the case of Bhavnagar District Co-operative Bank Ltd.
(supra) shall not apply to the present case as no final report has been filed by the Official Liquidator.
3. The present appeals have been filed by the writ petitioners, who are borrowers/guarantors of the respondent-society and similar other co-operative banks. It was submitted by the learned counsel for the appellants that even if some dues were outstanding on the date of expiry of the aforesaid period of seven years, which, by amendment of law, has been extended to 10 years from the date of the winding-up order, the deeming fiction of law will operate and therefore, the learned single Judge has erred in dismissing the writ petitions by way of the impugned judgment and order dated 05.05.2015.
4. Prima facie, for a harmonious reading of the entire provision of Section 114 read with Section 161 of the said Act, the matters would require further consideration, specially in view of Section 161 of the Act to consider whether the State Government has the power to exempt the applicability of the whole or a part of the provisions of this Act to any society or not and whether it has been so done in these cases or not ?
5. The learned counsel for the respondents, Mr. H.M. Parikh and Mr. Utkarsh Sharma for the State may place on record the orders passed by the competent authority of the State under Section 161 of the Act in the case of the present societies. Both Page 4 of 5 Downloaded on : Thu Jan 07 20:44:45 IST 2021 C/LPA/1011/2015 ORDER the sides may also prepare Brief Synopsis, List of Dates and Events and the compilation of case laws to be relied upon by them and the relevant statutory provisions.
6. Besides the aforesaid, during the course of arguments, it was also submitted by learned counsel for the appellants that the appellants, who are the borrowers/guarantors, are even now ready to settle the loan accounts of the respondent-Banks, which have, so far, not been de-registered as society by the Registrar, on similar lines as has been done in the cases of some other such borrowers. To this proposal, the learned counsel for the respondents submitted that unless a concrete proposal is made by such borrowers/guarantors, the respondent-societies cannot consider any such offers or proposals. However, both the learned counsel prayed that they may be allowed some time to make efforts in this direction also.
7. We grant a period of four weeks time. The appellants may give concrete proposals to the respondent-banks for settlement of their dues within a period of One Week from today, which may be considered by the respondent Cooperative Banks within a period of Two Weeks from the receipt of such proposal. Both the sides may try to negotiate the settlement. This may be done without prejudice to their rights to raise legal contentions before this Court in the present Writ Appeals.
8. List the matters on 10.02.2021, as prayed.
(DR. VINEET KOTHARI,J) (GITAGOPI,J) Pankaj Page 5 of 5 Downloaded on : Thu Jan 07 20:44:45 IST 2021