Gujarat High Court
India Denim Ltd. vs Bank Of Baroda on 9 October, 2019
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11511/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11511 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 11511 of 2019
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INDIA DENIM LTD.
Versus
BANK OF BARODA
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Appearance:
for the Petitioner(s) No. 2,3,5,6
HUNAIZA H QURESHI(8903) for the Petitioner(s) No. 1,2,3,4,5,6
MR. EKRAMA H QURESHI(7000) for the Petitioner(s) No. 1,4
MR DK NAKRANI(500) for the Respondent(s) No. 3
MR HIRAN M SHROFF(3672) for the Respondent(s) No. 1
MS KAUSHAL D NAKRANI(5121) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 2
NOTICE UNSERVED(8) for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
Date : 09/10/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 By this application under Article 227 of the Constitution of India, the petitioners - original defendants have prayed for the following reliefs:
"A. Be pleased to admit and allow the present petition.
B. Be pleased to quash and set aside the impugned order dated 22.06.19 (Annexure A) passed by the learned DRT1 at Ahmedabad and further be pleased to direct that the proceedings of Original Application Page 1 of 6 Downloaded on : Thu Oct 10 23:16:19 IST 2019 C/SCA/11511/2019 ORDER No.317 of 2018 be conducted along with Original Application No.431 of 2016 and Original Application No308 of 2019, in the interest of justice and further be pleased to permit the present petitioners to file the written submissions within a reasonable time without subjecting to any cost.
C. Pending hearing and final disposal of the present petition the impugned order dated 22.06.19 passed in OA No.317 of 2018 may kindly be stayed.
D. Any other and further relief in the interest of justice may kindly be granted."
2 The principal argument or rather the grievance redressed by the learned counsel appearing for the petitioners is that no opportunity of hearing was given by the DRT before the impugned order came to be passed. According to the learned counsel, he requested the DRT to grant him some reasonable time to file his written submissions and thereafter pass an appropriate order. However, according to the learned counsel, the DRT declined to grant him any time and proceeded to pass the impugned order. The impugned order dated 22th June 2019 reads thus:
"22.06.19 O.A.317/18Present Mr. H.M. Shroff, Ld. Counsel for the Applicant Bank Ms. E.H. Qureshi, Ld. Counsel for the Defendants No.1 to 7 Ms. Neha Panchal, Ld. Proxy Counsel on behalf of Ms. Kshma Sheth, Ld. Counsel for the Defendant No.9.
Ld. Counsel for the defendants No.1 to 7 filed one application and sought adjournment on the ground that this Original Application pertains to consortium financing and some other matters is pending on 22.07.2019 filed by Indian Bank, other consortium member.
I have considered the application so filed and I find no merit to entertain the same. It cannot be the ground for adjournment. Case is adjourned for final hearing on 25.06.2019. Defendants may file written submission in terms of earlier order dated 02.02.2019.
At this stage Ld. Counsel for the defendants No.1 to 7 Page 2 of 6 Downloaded on : Thu Oct 10 23:16:19 IST 2019 C/SCA/11511/2019 ORDER submitted that some reasonable time may be granted to file written submission. At her request, I feel fair to grant time and defendants No.1 to 7 may file written submission within two days subject to payment of Rs.50,000/ to be deposited with National Defence Fund in the Account No.11084239799 State Bank of India at New Delhi Main Branch (00691) as since February, 2019 defendants have failed to file written submission.
At shit stage Ld. Counsel for the defendants No.1 to 7 submitted that it is not the reasonable time and some more time may be granted to file written submission. Defendants were required to file written submission in February, 2019. it appears that defendants No.1 to 7 intends to delay the matter.
Case is adjourned to date already fixed on 25.06.2019."
3 Mr. Qureshi, the learned counsel pointed out that on 8th July 2019, a Coordinate Bench of this Court ordered to issue notice in this petition making it returnable on 9th August 2019. Mr. Qureshi submitted that even while this Court was ceased of the matter, he requested the DRT to grant him some time or at the most give him an opportunity of hearing, however, such request was declined. In such circumstances, Mr. Qureshi had to prefer Civil Application No.1 of 2019 praying for the following reliefs:
"A. Be pleased to admit and allow the present application.
B. Be pleased to stay the impugned order dated 01.07.19 passed in OA No.317 of 2018 by the learned Debt Recovery Tribunal - I at Ahmedabad during pendency of the captioned petition i.e. SCA no.11511 of 2019 and thereby the Tribunal below may be restrained from pronouncing any final order or judgment in the matter.
C. Any other and further relief in the interest of justice may kindly be granted."
4 The learned counsel invited our attention to the following averments made in the civil application:
Page 3 of 6 Downloaded on : Thu Oct 10 23:16:19 IST 2019 C/SCA/11511/2019 ORDER"2 That as soon as the notice was issued in the matter and the order copy was received by the petitioners, the petitioners thro. their lawyer made application dated 12.07.19 to the tribunal below and conveyed the order of this Hon'ble Court to the Tribunal below but still the tribunal below without any consideration of the said aspect is going to pass the final judgment in the OA no.317 of 2018 therefore necessity of filing the present application has arisen. For kind perusal of this Hon'ble Court the said application dated 12.07.19 is hereby annexed and marked as Annexure B to this petition.
3 The Tribunal below has totally misconstrued the facts and passed the impugned order dated 01.07.19 as if no written statement is filed. The written statement is already filed by the petitioners way back and only question of submitting the written submissions at the time of hearing was remaining. Therefore the order passed is totally perverse to the facts on record. The factum qua the passing of the said order dated 01.07.19 by the tribunal below was also kept on the record of the captioned petition by filing the draft amendment. F or kind perusal of this Hon'ble Court the Draft Amendment is hereby annexed and marked as ANNEXURE C to this petition.
4. That the applicant, pointed out to the Hon'ble Tribunal on 12.07.19 that the Hon'ble High Court has issued notice in the matter, hence matter may be preponed so that petitioners may apprise the tribunal qua the development and judgment may not be given without bearing the matter on merits. On which the Tribunal below directed the applicants to withdraw the application for preponement which was filed and asked the Petitioners' advocate below to submit the written submission if any and orally assured to give hearing on the aspect on 15.07.19. On 15.07.19 the advocate for the petitioners' submitted the written submission with a copy to the other side and requested for bearing on the aspect so that necessary order may be passed considering the pendency of the petition in the Hon'ble High Court. Though the advocate of the petitioners waited till 6:00 pm but no bearing was given and when mentioned the matter at time of rising he was asked to come on next day again. On the next day i.e. on 16.07.19 also the bearing was not given though the advocate for the petitioners' waited till 6:15 pm in the evening in the second half.
5 Therefore necessity of filing the present application for stay has arisen in as much as it appears the that the learned tribunal below is bent on passing the final judgment unnecessarily without bearing the petitioners despite the fact that the petitioners have completed all the pleadings and only written arguments are to be given which may be given at the time of bearing as well, but still the same are also now given.
Page 4 of 6 Downloaded on : Thu Oct 10 23:16:19 IST 2019 C/SCA/11511/2019 ORDER6 That if the judgment is pronounced on 18.07.19 in such manner then not only the captioned petition would become infructuous but also there would be serious jolt and prejudice be caused to the legal and fundamental rights of the applicants and the applicants would be denied the fair procedure of law and recovery certificate would be issued to the respondent no 1 bank in a cyclostyle and mechanical manner. The same would be violative of the principles of natural justice and a gross arbitrary act on the part of the learned presiding officer below. Therefore till the final outcome of the captioned petition, the order dated 01.07.19 passed by the tribunal below is required to be stayed. "
5 In such circumstances referred to above, Mr. Qureshi prays that the impugned order dated 22nd June 2019 and also the order dated 1st July 2019 passed by the DRT be quashed and set aside and the DRT may be directed to hear the petitioners and thereafter pass an appropriate order.
6 The learned counsel appearing for the respondents would submit that there should not be any difficulty in giving an opportunity of hearing to the petitioners.
7 Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that the DRT should have acceded to the request of hearing made on behalf of the petitioners. If the learned counsel for the petitioners wanted time to file his written submissions, then the DRT should have granted some reasonable time.
8 In such circumstances referred to above, the two impugned orders referred to above dated 22nd June 2019 and 1st July 2019 respectively are hereby quashed and set aside. The matter is remitted to the DRT, Ahmedabad for fresh hearing. The DRT shall give an opportunity of hearing to the learned counsel appearing for the petitioners, and if the Page 5 of 6 Downloaded on : Thu Oct 10 23:16:19 IST 2019 C/SCA/11511/2019 ORDER learned counsel wants to place his written submissions on record, he may do so. At this stage, Mr. Qureshi pointed out that although his written submissions were ready and he wanted to place them, the DRT declined to accept the written submissions. Be that as it may, we direct the DRT to hear the matter a fresh after giving reasonable opportunity of hearing to the petitioners and thereafter pass an appropriate order in accordance with law. We clarify that we have otherwise not gone into the merits of the matter. We have been constrained to pass this order only on account of very obstinate attitude adopted by the DRT.
9 With the above, this application stands disposed of. The connected civil application also stands disposed of. Direct service is permitted.
(J. B. PARDIWALA, J) (VIRESHKUMAR B. MAYANI, J) CHANDRESH Page 6 of 6 Downloaded on : Thu Oct 10 23:16:19 IST 2019