Gujarat High Court
Ruti Rushi Modi Wd/O Rushi Sherarji Modi vs Surat Peoples Co Op Bank Ltd & 6 on 11 August, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/16247/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16247 of 2014
With
SPECIAL CIVIL APPLICATION NO. 495 of 2016
With
CIVIL APPLICATION NO. 4242 of 2016
In
SPECIAL CIVIL APPLICATION NO. 495 of 2016
With
SPECIAL CIVIL APPLICATION NO. 4275 of 2015
With
CIVIL APPLICATION NO. 3851 of 2015
In
SPECIAL CIVIL APPLICATION NO. 4275 of 2015
With
CIVIL APPLICATION NO. 4243 of 2016
In
SPECIAL CIVIL APPLICATION NO. 4275 of 2015
With
SPECIAL CIVIL APPLICATION NO. 20107 of 2015
With
CIVIL APPLICATION NO. 4241 of 2016
In
SPECIAL CIVIL APPLICATION NO. 20107 of 2015
With
SPECIAL CIVIL APPLICATION NO. 11771 of 2017
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RUTI RUSHI MODI WD/O RUSHI SHERARJI MODI....Petitioner(s)
Versus
SURAT PEOPLES CO OP BANK LTD & 6....Respondent(s)
================================================================
Appearance:
DECEASED LITIGANT, ADVOCATE for the Petitioner(s) No. 1
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1.1
MR AMIT V THAKKAR, ADVOCATE for the Respondent(s) No. 1
MR ARPIT A KAPADIA, ADVOCATE for the Respondent(s) No. 4 - 7
MR IJ DESAI, ADVOCATE for the Respondent(s) No. 1
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C/SCA/16247/2014 ORDER
RULE NOT RECD BACK for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 11/08/2017
COMMON ORAL ORDER
1. All these petitions are arising between the same parties with reference to same proceedings between the parties before the Board of Nominees of Registrar of Cooperative Societies at Surat and with reference to same property and same transaction and, therefore, though issues raised in different petitions are different, for sake of convenience, all petitions are heard together and decided by this common final order.
2. The brief facts of petitions needs to be summarized as under. For the sake of convenience, parties are referred in short form wherein Surat Peoples Cooperative Bank Limited is referred hereinafter as `Defendant Bank;' being defendant before the Board of nominees in Lavad Suit No.43 of 2011. Whereas, plaintiff of such suit being legal heirs of Shreyarji Barjorji Modi, initially, Page 2 of 71 HC-NIC Page 2 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Ruti Rushi Modi being widow of Rushi Shreyarji Modi and after her death, her daughter Ruti Rushi Modi and upon her death pending litigation Ruti Modi who will be referred hereinafter as `plaintiff - Modi'. Whereas in Special Civil Application No.16247 of 2014 there are additional litigants being third parties and, therefore, they will be referred as `respective petitioner' and `respondent' while discussing the facts and details of that petition. However, since parties to this petition has failed to proceed with the hearing of such petition, though it requires to be dismissed for want of prosecution, in the interest of justice and to avoid proceeding for restoration immediately after dismissal for want of prosecution, such petition is separated and be listed on 30.8.2017.
3. So far as facts are concerned, it seems that following details are not disputed: * There was decree in favour of the defendant - Bank against the plaintiff Modi as back as on 30.11.1936 for Rs.22,006/, Rs.7,003/ so also one another decree dated 31.12.1938 for Page 3 of 71 HC-NIC Page 3 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Rs.47,670/.
* During recovery proceedings, plaintiff Modi, instead of making payment in cash, had forgone his rights over land admeasuring 199 Acre - 01 Gunthas on or before 18.4.1941 against aggregate amount of decrees being Rs.78,251/.
* One document was executed at the relevant time to confirm such transaction. At present, the dispute is with reference to such document which is to the effect that whether such documents is a simple sale deed or whether it can be considered as conditional sale which results into mortgaging the property in question instead of absolute sale by the Plaintiff Modi in favour of the defendant Bank.
* The condition in such document is to the effect that plaintiff Modi can get the land back by making the payment within stipulated time. Plaintiff - Modi did not exercise such option of Page 4 of 71 HC-NIC Page 4 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER getting the land back by making any payment till 30.6.1981 when he died.
* In the interregnum, the defendant - Bank has entered into sale transaction of land admeasuring 163 Acre - 23 Gunthas to seven different purchasers between the year 1943 and 1963 leaving only 35 Acre - 78 Gunthas land at its disposal.
* In 2010, defendant - Bank has issued notice for sale of remaining land under reference, details of which is well described in the pleading but since there is no dispute with reference to identity of land, its details are not much material.
* The defendant Bank was in process of completing the sale transaction with the highest bidder, however, before such transaction could be completed plaintiff - Modi has, through her Power of Attorney initiated Page 5 of 71 HC-NIC Page 5 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER litigations which is subject matter of present petitions.
4. It is submitted by the defendant - Bank that plaintiff Modi or his successor had never objected to sale of the land by the defendant
- Bank during their life time because transaction by the plaintiff - Modi was an outright sale and not a mortgage as alleged in present litigation.
5. However, before reaching to the discussion of factual details of present petitions, it cannot be ignored that initially plaintiff Modi has filed one Special Civil Suit No.555 of 2010 before the Court of Civil Judge (Senior Division) at Surat for the similar reliefs which are prayed in present set of litigation in the form of Lavad Suit No.43 of 2011 before the Board of Nominees at Surat.
6. It is undisputed fact that in such Special Civil Suit No.555 of 2010 before the Civil Court, the defendant - Bank has on 3.1.2011 filed an application at Exh.10 under Oder VII Rule 11 of the Code of Civil Procedure, 1908 (For Short `Code') praying to reject the plaint in view of the express averments in Page 6 of 71 HC-NIC Page 6 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER the plaint and what is submitted in such application. At the cost of making this order lengthy, the relevant portion of such application needs to be recollected here and, therefore, reproduced as under: "By way of this application, the defendant bank herein submits as under:
1. The defendant herein is a Cooperative Bank registered under the Cooperative Societies Act, 1961 and is engaged in the business of banking including disbursement of loans etc. The plaintiff herein has filed the above captioned Special Civil Suit for the various reliefs raising the dispute about liability to repay the debt due to the defendant bank which was taken by deceased Sheriyarji Barjorji Modi. The plaintiff is the legal heir of the deceased.
1.1 The admitted position manifested from the averments in the plaint of the suit are as under.
(i) Deceased Sheriyarji Barjorji Modi had taken Rs.15,000/ from the defendant Bank on 11.12.1929 by executing a deed.Page 7 of 71
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(ii) Defendant Bank had a decree in its favour from the Board of Nominees Shri N.C. Dalal dated 12.10.1936 in the Reference Case No.2 of 1936 under the Mumbai Cooperative Societies Law.
(iii) The said decree against deceased Sheriyarji Barjorji Modi made the deceased liable to pay to the defendant Bank principal amount of Rs.15,000/ plus interest of Rs.28,08,155 and cost of Rs.2580 with 6% interest thereon. The said dues of Bank became subject matter of Execution in Regular Darkhast No.105 of 1938 before the Court of Joint First Class Sub Judge, Surat.
(iv) The said dues to the Bank remained unpaid and as a consequence on 18.4.1941, for the then due amount of Rs.78,251/, Sheriyarji executed a deed to the Bank.
(v) Deceased Sheriyarji was admittedly a member of respondent cooperative bank and held two shares in the respondent bank.
2. It is submitted that the nature of dispute raised in the suit is primarily, essentially and substantively and for all Page 8 of 71 HC-NIC Page 8 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER practical and legal purposes, is a dispute raised in respect the liability to pay the debt due to the Bank. It is a `dispute' touching the business of the defendant society and such dispute fall within the purview of section 96 of the Cooperative Societies Act, 1961. This aspect emerges as an admitted position from the averments and statements in paragraph 3, paragraph 4, paragraph 5, paragraph 8, paragraph 9, paragraph 10 and elsewhere in the plaint, as well as from the contents of the documents produced with the plaint.
2.1 Section 96 of the Gujarat Cooperative Societies Act, 1961 is reproduced herein below: PROCEDURE FOR DECIDING DISPUTES:
96. Disputes: (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a society shall be referred in the prescribed from either by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to the Registrar, if the parties thereto are from amongst the following :
(a) a society, its committee, any Page 9 of 71 HC-NIC Page 9 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER past committee, any past or present officer, any past or present any past or present servant or nominee, heir or legal representative of any deceased officer, deceased magnet or deceased servant of the society, or the Liquidator of the society;
(b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society;
(c) a person, other than a member of the society, who has been granted a loan by the society, or with whom the society has or had transactions under the provisions of section 46, and any person claiming through such a person :
(d) a surety of a member, past member or a deceased member, or a person other than a member with has been granted a loan by the society under section 46, whether such a surety is or is not a member of the society :
(e) any other society, of the Liquidator of such a society.
(2) When any question arises whether for the purposes of sub section (1) a matter referred to for decision is a dispute or not, the question shall be considered by the Registrate, whose decision shall be final.
Explanation I For the purpose of this sub section, a dispute shall include: Page 10 of 71 HC-NIC Page 10 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER
(i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, without such a debt or demand be admitted or not ;
(ii) a claim by a surety for any sum or demand due to him from the principal borrower in respect on a loan by a society and recovered from the surety owing to the default of the principal borrower, whether such a sum or demand be admitted or not ;
(iii) a claim by a society for any loss caused to it by a member, past member, or deceased member, by any officer, past officer or deceased officer, by any agent, past agent deceased agent, or by any servant, past servant or deceased servant, or by its committee, past or present whether such loss be admitted or not;
(iv) a refusal or failure by a member, a past member or a nominee, heir or legal representative of a deceased member, to deliver possession to a society of land or any other asset resumed by it nor breach of conditions of the assignment.
Explanation II. For the purposes of this section, the expression "agent" includes in the case of a housing society, an architect, engineer or contractor engaged by the society."
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3. It is submitted that in the aforesaid view of the factual position on record, the present subject matter cannot be tried before the civil court and this Hon'ble Court does not have jurisdiction to try and entertain the suit. The dispute and nature of dispute, as manifested from the express averments in the plaint, would be governed by the provisions of section 96 Gujarat Cooperative Societies Act, 1961 quoted hereinabove. It is submitted that the dispute raised by the plaintiff is triable exclusively by the competent forum created by the legislature under the Gujarat Cooperative Societies Act, 1961, to the exclusion of jurisdiction of the civil court. Applicant further submits that this position of law is no longer res integra by virtue of various judgments.
4. Applicant respectfully submits that in the above conspectus of the matter, plaint of the Special Civil Suit No.555 of 2010 is liable to be rejected under the provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908. The said provision is reproduced herein below: "11. Rejection of plaint. Page 12 of 71 HC-NIC Page 12 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of Rule 9.
[Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time Page 13 of 71 HC-NIC Page 13 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.]"
It is clear from the reading of the aforesaid provision that under subclause
(d) above, the plaint is liable to be rejected where the suit appears from the statement in the plaint to be barred by law.
It is submitted that the reading of the plaint in question as a whole, the aspects mentioned in the foregoing paragraphs emerge from unequivocal express averments in the plaint and, therefore, the suit is evidently barred having regard to the provisions of section 96 of the Gujarat Cooperative Societies Act, 1961. The plaint is, therefore, liable to be rejected. It is submitted that trying and entertaining the present suit and the kind and nature of dispute raised therein would amount to usurpation of jurisdiction by this Hon'ble Court, when the jurisdiction to try the dispute in question rests with the another competent judicial forum.
5. It is submitted without prejudice to the above, the prayer in the suit with reference to redemption of mortgage transaction as alleged by the plaintiff, is clearly beyond Page 14 of 71 HC-NIC Page 14 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER limitation in terms of Article 61(1) of the Limitation Act, 1908. The deed which is sought to be described as mortgage deed is dated 18.4.1941. The conditions incorporated therein contemplated that the money advanced under the deed was to be repaid within period of five years, and on repayment not happening within the stipulated five years, as per the conditions expressly stated, the transaction was to become converted as an outright sale. For the sake of argument without accepting and going with the case of the plaintiff on demurrer, that the transaction was a mortgage, the right to redeem arose for the plaintiff at the end of fifth year from 18.4.1941 and the period of limitation continued for 30 years thereafter in view of Article 61 of the Limitation Act. Obviously, the suit is instituted after expiry of 35 years started from 18.4.1941. Thus, on the count of limitation also, the plaint as put up and case disclosed from the averments therein, is liable to be rejected under Order VII, Rule 11(d) of the Code of Civil Procedure, 1908.
6. In the interest of justice, the present application may be allowed."
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7. Such application is supported by an affidavit by one Mr.Harish Maganlal Mistri being Assistant General Manager and authorized person of the defendant - Bank and, therefore, now, defendant - Bank has no option but to admit the contents of such application irrespective of their diverse submissions.
8. Pursuant to such application, it seems that the plaintiff - Modi has on 10.2.2011 i.e. immediately at the earliest after such application, submitted an application at Exh.21 in the said Special Civil Suit No.555 of 2010 seeking permission to withdraw the suit with a permission to file suit before the competent Court for same cause of action and reliefs. Surprisingly, defendant - Bank has endorsed on such application that withdrawal may not be permitted for filing a fresh suit but unconditional withdrawal may be permitted and prayed for cost. However, the Additional Senior Civil Judge, Civil Court at Surat had granted permission to file a fresh suit as per Order XXIII Rule 1(3) recording that since plaintiff wants to withdraw the suit for technical reasons, permission needs to be granted.
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9. Therefore, one thing is clear and certain that initially plaintiff has filed a suit before Civil Court but he withdrew such suit mainly on the ground that defendant has taken a plea in their application at Exh.10 (which is reproduced hereinabove) that dispute raised by the plaintiff - Modi is triable exclusively by the Competent Forum granted by the legislature under Gujarat Cooperative Societies Act, 1961 (For short `Act') and exclusion of jurisdiction of Civil Court. Defendant - Bank has in categorical terms disclosed in its application at Exh.10 that reading of the plaint in question as a whole, suit is evidently barred having regard to the provision of Section 96 of the Act. Therefore, defendant - Bank has prayed to reject the plaint under the provisions of Order VII Rule 11(d) of the Code which provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law.
10. Therefore, prima facie, it becomes clear that it is a stand of the defendant - Bank that dispute raised by the plaintiff - Modi cannot be adjudicated by the Civil Court being barred by the provisions of the Act since dispute squarely falls within the Page 17 of 71 HC-NIC Page 17 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER purview of Section 96 of the Act and, therefore, plaintiff has withdrawn such suit with a clarity to file the same before the Competent Court.
11. In view of above facts and circumstances, plaintiff has preferred the Lavad Case No.43 of 2011 before the Board of Nominees at Surat. Unfortunately, when plaintiff has filed the suit on the same day i.e. 10.2.2011 when suit from Civil Court was withdrawn, defendant - Bank is finding fault with the plaintiff when they were vigilant to file it immediately to avoid any other complications. However, no law restricts the plaintiff to file such suit on the same day. On the contrary, such prompt action is good rather than commenting on intention or attitude of the plaintiff, as alleged by the defendant - Bank.
12. When Lavad Case No.43 of 2011 has been proceeded, it seems that defendant - Bank has started different practices to see that such suit may not be proceeded on merits at any cost, though they have one more legal defence in their favour regarding limitation when it is their Case that suit is filed after the period of limitation because it is filed Page 18 of 71 HC-NIC Page 18 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER after the gap of 35 years from the date of mortgage which is identified by them as a sale deed in their favour.
13. As on date, the following matters are pending between the parties.
(A) Lavad Suit No.43 of 2011 before the Board of Nominees at Surat.
(B) Matters Pending in High Court:
Sr. Matter No. Particular
No.
1 Special Civil Against order dated
Application 16247 of 15.10.2014 of Co 2014 by the plaintiff operative Tribunal Modi setting aside BON order joining purchaser - as parties.
2 Special Civil Against Exh.143 Inj. Application 4275 of Order by BON (In 2015 by defendant Second Round) Bank 3 Special Civil Against order below Application 20107 of Exh.167 u/S.98(3) 2015 by defendant Bank 4 Special Civil Against Common order Application 495 of below Exh.184 (For 2016 by defendant issue of limitation) & Bank Exh.185 (to postpone hearing).
5 Special Civil Against order below Application No.11771 Exh.234 u/S.96(2) of of 2017 by defendant Cooperative Societies Page 19 of 71 HC-NIC Page 19 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Bank Act.
6 Special Civil Against order below Application No.12352 Exh.251 regarding of 2017 by defendant cross examination of Bank P/A holder.
(C) Matters Pending in Cooperative Tribunal :
Sr. Matter No. Particular
No.
1 Revision Application Against order below No.100 / 2015 by the Exh.85 dated 27.7.2015 defendant Bank whereby app. To amend.
Issues not fully entertained.
2 Revision Application Against order below 98 of 2015 by Exh.68 dated 27.7.2015 defendant Bank whereby amend. Appl of plaintiff allowed.
3 Revision Application Against order below 99 of 2015 by Exh.74 dated defendant Bank 27.7.2015. plaintiff application seeking discovery / inspection of documents allowed.
14. Amongst all above litigations before discussing any other issues, it is required to be noted that, at present, by order dated 4.5.2017 in Special Leave to Appeal No.26201 of 2016 arising out of judgment and order dated 4.5.2016 in Civil Application No.4242 of 2016 in Special Civil Application No.495 of 2016 by this High Court, the Hon'ble Page 20 of 71 HC-NIC Page 20 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Supreme Court has passed following order: "While keeping this Special Civil Petitions pending we direct the authority, namely, the Board of Nominees, Surat before whom Arbitration Case No.43 of 2011 is pending to decide the said arbitration case within a period of 4 months from today. List the matters after 4 months."
15. Therefore, there is a mandate and direction upon the Board of Nominees to decide the Arbitration Case No.43 of 2011 on, or before 4.9.2017. Considering such direction, these matters are taken up for immediate hearing irrespective of heavy admission Board and all the matters are dealt with by this common order irrespective of different issues raised in it because ultimately, the parties, facts and pleadings are common.
16. Amongst above referred different litigations, at present, we are concerned with Special Civil Applications preferred by the defendant Bank against different orders below different applications, whereas, learned advocates for the respondents in Special Civil Application No.16247 of 2014 preferred by the plaintiff Modi, being purchaser of piece of land of defendant Bank have failed to cooperate with Page 21 of 71 HC-NIC Page 21 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER the early hearing of the matter, taking disadvantage of heavy admission Board, by remaining absent at the relevant time and seeking adjournment. Therefore, at present, such Special Civil Application is kept out of the scope of the present order.
17. Coming to the merits of each petition, it would be appropriate to take it one after another.
Special Civil Application No.4275 of 2015:
18. The defendant Bank has challenged the order dated 27.2.2015 below Exh.143 in Lavad case No.43 of 2011. Such application at Exh.143 is preferred by the plaintiff before the Board of Nominees seeking prohibitory order against the defendant Bank so as to restrain them from transferring and assigning the suit property or to construct or to create any lien on such property. By order dated 27.2.2015, the Board of Nominees has allowed such interim relief in favour of the plaintiff Modi and, therefore, defendant Bank has challenged such order directly before this Court in writ jurisdiction contending that though similar relief prayed in application at Exh.5 was refused in a Page 22 of 71 HC-NIC Page 22 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER proceeding between the parties, wherein, order dated 8.8.2011 below Exh.5 has been rejected by Gujarat State Cooperative Tribunal in Revision No.134 of 2011 on 18.4.2012 and such order was confirmed by judgment dated 11.6.2012 in Special Civil Application No.6144 of 2012 by this High Court and by order dated 7.4.2014 in Special Leave Petition No.1812 of 2013 by Hon'ble Supreme Court of India, now, Board of Nominees should not have granted such interim relief.
19. However, the fact remains that prayer for interim relief even if once rejected, on given facts and circumstances and, more particularly, because of some further development in factual or legal position thereafter any party can certainly pray for similar relief at relevant time but at that stage, it would be the duty of the concerned Court / Authority to decide such application in accordance with law and considering the result of previous application for the same relief. However, in such Special Civil Application, the impugned order is stayed by order dated 10.3.2015 and since it is continued till date, there is no prejudice caused to the defendant Bank. However, Page 23 of 71 HC-NIC Page 23 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER pursuant to further orders, thereafter, and more particularly, order dated 4.5.2017 by Hon'ble Supreme Court of India to decide the main Lavad case on or before 4.9.2017, at this stage, I do not see any reason to discuss the factual or legal merits of this Special Civil Application. It is also clear that after the first order dated 10.3.2015 issuing notice with interim relief of staying the impugned order below Exh.143, matter has not been heard till date. In the meantime, one Civil Application No.4243 of 2016 is preferred by the defendant Bank to stay the further proceedings of the Lavad suit No.43 of 2011 wherein by order dated 4.5.2016, the coordinate Bench has considered the facts and circumstances of the case and passed following order, when probably Bank has started to dispose of the remaining part of the land by auction proceedings.
"In the meanwhile, all parties are directed to maintain the status quo regarding the auction and proceeding of Lavad suit."
20. Thereby, virtually relief in Civil Application regarding staying the Lavad suit was granted. It is this order which is challenged before the Hon'ble Supreme Court Page 24 of 71 HC-NIC Page 24 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER in Special Leave to Appeal No.26201 of 2016 wherein on 4.5.2017, Hon'ble Supreme Court has passed the order which is referred hereinabove to expedite the hearing of the suit. However, when Hon'ble Supreme Court has not stayed the order dated 4.5.2016 which is quoted hereinabove and which is having two different directions; (1) against the plaintiff Modi so far stay of further proceedings and (2) against the defendant Bank so far stay against auction and when Hon'ble Supreme Court has directed for the early disposal of the suit, it appears that the direction regarding maintenance of status quo regarding the auction would remain in force till disposal of the main petition.
21. As aforesaid, when such Special Civil Application is yet not admitted, at this stage, considering the order of Hon'ble Supreme Court dated 4.5.2017, I am of the opinion that no purpose would be served by admitting this matter or disposing it at this stage when main suit is directed to be decided on or before 4.9.2017. Therefore, Special Civil Application No.4275 of 2015 shall be listed separately hereinafter with Special Civil Application No.16247 of 2014 for necessary orders at the relevant time. It Page 25 of 71 HC-NIC Page 25 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER may so happen that after the decision in the suit both these Special Civil Applications may become infructuous but that would not require any decision or determination at this stage for the simple reason that pursuant to what is discussed hereinabove when original suit is to be decided in stipulated time period and when there are some directions by Hon'ble Supreme Court limited to observation regarding disposal of the suit only, there is no reason to interfere in the interim decision on any such subject, considering the fact that issue is subjudice with Hon'ble the Supreme Court of India in Special Leave to Appeal No.26201 of 2016.
Special Civil Application No.20107 of 2015:
22. The defendant - Bank has preferred this petition challenging the order dated 23.11.2015 below Exh.167 in Lavad suit No.43 of 2011. Here again, the application by the Bank at Exh.167 has been rejected by the Board of Nominees which is preferred by the defendant Bank to stay the proceedings of the Lavad suit No.43 of 2011 with a direction to the plaintiff Modi to get the issue resolved from the Civil Court pertaining to the interpretation of document in question that Page 26 of 71 HC-NIC Page 26 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER whether it is a mortgage deed or a sale deed pursuant to provisions of Section 98(3) of the Cooperatives Societies Act, 1961. For the purpose, reference to such provision is material which reads as under: "98. Settlement of Disputes: (1) If the Registrar is satisfied that any matter, referred to him is a dispute, within the meaning of section 96 the Registrar shall, subject to the rules, decide the dispute himself, or refer it for disposal to a nominee, or a board of nominee, appointed by the Registrar :
Provided that no person who is connected with a dispute or with the society at any or has previously inspected the society or audited its accounts shall be appointed as a nominee or as member of the board of nominees to settle the dispute.
(2) Where any dispute is referred under sub section (1) for decision to the Registrar's nominee or board of nominees, the Registrar may at any time, for reasons to be recorded in writing withdraw such dispute from his nominee, or board of nominees, and may decide the dispute himself, or refer it again for decision to any other nominee, or board of nominees, appointed by him.
(3) Notwithstanding anything
contained in section 96, the
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C/SCA/16247/2014 ORDER
Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated question of law of or fact, until the question has been tried by a regular suit instituted by one of the parties or by the society. If any such suit is not instituted within two months from the Registrar's order suspending proceedings, the Registrar shall take action as is provided in SubSection (1)."
The bare reading of the provision makes it clear that it is not mandatory for the Board of Nominees before whom proceedings under Section 96 i.e. Lavad suit is initiated, to suspend proceedings even if the issue is involving complicated question of law or fact. At this stage, it would be appropriate to recollect the discussion in previous part of this judgment wherein it is made clear that infact it was the case of the defendant Bank only before the Civil Court in Special Civil Suit No.555 of 2010 that Civil Court has no jurisdiction to decide such issue which is purely within the purview of the Act and, thereby it is to be handled by the competent authorities of the Act i.e. Registrar or Board of Nominees to it. Therefore, though it is submitted that Page 28 of 71 HC-NIC Page 28 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER principle of estopple would not apply to the defendant Bank, the fact remains that defendant Bank has tried to change its stand whereby before the Civil Court, they have contended that Civil Court has no jurisdiction but the Board of Nominees only has jurisdiction and now before the Board of Nominees, they come up with a case that so far as interpretation of document is concerned, the issue needs to be referred to the Civil Court and till then Lavad suit is to be stayed. Therefore, irrespective of technical issue regarding maintainability of writ petition directly against the order of Board of Nominees without preferring Revision before the Tribunal, if we peruse the impugned order dated 23.11.2015 by the Board of Nominees, it transpires that the Board of Nominee has while discussing such application to stay the suit before it has taken care of all relevant facts and circumstances so also decision of different Courts cited before it for coming to the conclusion that the dispute raised by the plaintiff Modi is certainly required to be dealt with and that it can certainly be decided in view of its jurisdiction under Section 96 of the Act. The provision of Section 96 is already reproduced hereinabove which makes it clear that the Page 29 of 71 HC-NIC Page 29 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Board of Nominees has to decide dispute between Society and its members with reference to debt or demand. It is undisputed fact that dispute between parties at present is certainly with reference to the activity in recovering the amount of debt by the defendant Bank. It is also undisputed fact that the dispute is also touching the management of business of the defendant Bank, a Cooperative Society and, therefore, it was referred to the Board of Nominees only because of such stand was taken by the defendant Bank. Otherwise plaintiff had already preferred a suit before the Civil Court.
23. Therefore, irrespective of all other technicalities, legal or otherwise, the fact remains that noone should be refused by the statute so as to deny to resolve his dispute. For the purpose, technicalities should not come in way of doing justice. It cannot be ignored that ultimately all the rules of the procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no Page 30 of 71 HC-NIC Page 30 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice (AIR 2008 SC (Supp) 767 between Sambhaji and Ors. Vs. Gangabai & Ors.). The procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed (AIR 1998 SC 1827(1) between Shreenath and Anr. Vs. Rajesh and Ors.). Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal,property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice (2003)3 SCC 272 Sardar Amarjit Singh Kalra (Dead) Vs.Smt.Pramod Gupta (Dead)), the said judgment is recently reconfirmed in Civil Appeal no.6567 of 2015 (Arising out of SLP Page 31 of 71 HC-NIC Page 31 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER (C) no.22468 of 2013 between Banwari Lal (D) by Lrs. & Anr. Vs. Balbir Singh.
24. In view of what is stated hereinabove and, more particularly, when Hon'ble Supreme Court has directed to decide the suit before 4.9.2017 and as disclosed at bar that during such exercise, practically now evidence of both the sides is over before the trial Court and matter is lastly listed on 3.8.2017 for submitting argument of both the sides and, thereafter, Board of Nominees would be in a position to decide the suit finally which is to be done on or before 4.9.2017 at this stage, I do not see any reason to interfere with in the impugned order and to disturb the disposal of the suit as per direction of the Hon'ble Supreme Court. There is one another reason that when suit is at the verge of the disposal, it is settled legal position that issue, if any, raised but decided against any party at interim stage can be raised again in appellate jurisdiction while challenging against the final judgment, if the final judgment is against the same party. Thereby, in simple words, when it is clear and certain that if at all suit is decreed against the defendant Bank and if at all defendant Bank has to challenge such decree, the defendant Page 32 of 71 HC-NIC Page 32 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Bank is certainly entitled to raise the same issue in appeal also and, therefore, at this stage, there is no reason to interfere with any impugned order. At the most, there may be an observation that since this Court has not decided the issue finally both on merits and law point but decided it in favour of the plaintiff Modi; considering the factual details and circumstances emerging on record at this stage, at the most, defendant Bank may be permitted to raise the similar issue in appeal against final judgment if at all it is to be filed by the defendant Bank. Therefore, I do not find any substance to entertain or to allow this Special Civil Application and hence it requires to be dismissed and accordingly dismissed. Pursuant to disposal of main petition, now, Civil Application No.4241 of 2016 seeking stay of further proceedings of Lavad Suit No.43 of 2011 does not survive and hence the same stands disposed of accordingly.
Special Civil Application No.495 of 2016:
25. The petitioner herein is again defendant Bank which has challenged order by the Board of Nominees below application at Exh.184 and 185 dated 7.1.2016. Both such applications are Page 33 of 71 HC-NIC Page 33 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER preferred by the defendant Bank before the Board of Nominees. By application at Exh.184, the defendant Bank has prayed to decide the issue No.9 regarding limitation as a preliminary issue whereas by an application at Exh.185, the defendant has prayed to stay the suit till preliminary issue is decided.
However, by impugned judgment the Board of Nominees has while rejecting both the applications held that when there is no stay granted by any superior Court it has no reason to stay the proceedings of the suit and that since, suit is pending for more than 4 years and when it is at the verge of final decision, at such stage, suit cannot be stayed as prayed for by the defendant only on the ground of deciding any issue as a preliminary issue. Whereas, so far as deciding the issue of limitation as a preliminary issue is concerned, the Board of Nominees has observed that instead of now deciding only the issue of limitation which is otherwise also not dealing with the law point alone, but also requires consideration of factual details and evidence, it would be inappropriate to decide only such issue initially as a preliminary issue but to decide the entire suit together so as to put an end to such old litigation.
Page 34 of 71HC-NIC Page 34 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER
26. Prima facie, on face of the facts and circumstances and available record, I do not find any irregularity or illegality or arbitrariness in such order. It cannot be ignored that we have to deal with the powers vested by Article 226 of the Constitution and this is not a statutory appeal or revision. We have to verify irregularity and illegality that may have resulted because of arbitrariness or discrimination only. Thereby, the fact remains that so far as procedural part of such lower Courts is concerned, if it is not resulting into arbitrariness, discrimination and, thereby, irregularity or illegality then only because second view is possible, decision of lower Court cannot be modified in such Writ petitions. It is quite clear and obvious that such interlocutory order does not prejudice the present petitioner being the defendant Bank in any manner whatsoever. Thereby, if entire suit is decided on its own merits, then, issue of limitation would certainly be decided by the Board of Nominees because it is certainly one of the issues which are already framed and such issue would be decided in course of final adjudication by the Board of Nominees. It is also undisputed Page 35 of 71 HC-NIC Page 35 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER fact that irrespective of challenging the impugned order by present litigation, if defendant Bank has to challenge the final judgment by the Board of Nominees, then, certainly, it is an error and concerned parties are entitled to raise all the issues including challenging the decision on the issue regarding limitation in such final appeal. Therefore, all such interlocutory applications and challenge of impugned order below such application is nothing but an attitude and attempt by the defendant Bank to drag the matter unnecessarily for a long time and, thereby to make the cause of justice frustrated or to frustrate the result of the litigation if at all it is in favour of the plaintiff Modi who is seeking justice. In any case, irrespective of technicalities, every litigant is entitled to a judicial order for the dispute raised by him irrespective of decision which may be against him.
27. Though facts and circumstances and law point is confirming above discussion, let us deal with relevant submissions on the subject which is raised in this petition.
28. It is contended by the learned counsel for the defendant Bank that when property under Page 36 of 71 HC-NIC Page 36 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER consideration was mutated pursuant to decree of the year 1936 in favour of the defendant Bank against the predecessor of plaintiff Modi, somewhere in the year 1941, by executing a sale deed on 18.4.1941, the suit filed on 10.2.2011 is certainly beyond the period of limitation. Though, it can be said that the suit is filed after 70 years from the date of sale deed, the core issue is with reference to the interpretation of the deed dated 14.2.1941 that whether it is a sale deed for absolute transfer of the property in question or a conditional sale deed which results into effect of mortgaging the property with some conditions. In that case, a suit to redeem the mortgage can be filed after 12 years or after 30 years based upon the averments in the deed for the purpose. Though, I do not want to enter into factual details and discussion thereof so as to ascertain or decide that whether suit is within limitation or not, so as to avoid prejudice to either side in final trial before the Board of Nominees, it is quite clear and certain that the period of limitation of 12 or 30 years as per Article 63 of Limitation Act, 1963 is to be counted not from the date of the deed but from the date when money secured by the mortgagee Page 37 of 71 HC-NIC Page 37 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER becomes due or when the mortgagee becomes entitled to possess as the case may be considering the factual details of the transaction between the parties. Therefore, only because suit is filed after 70 years from the date of deed which is under scrutiny, prima facie, it cannot be said that the suit is barred by law of limitation. As discussed above, for considering the issue of limitation factual details needs to be ascertained. If it is so, the issue regarding limitation cannot be determined as a preliminary issue, when mixed question of law and facts are involved in deciding any such issue. When application for deciding the issue of limitation as preliminary issue and thereby to reject the suit as provided under Order VII Rule 11 of the Code, then, it cannot be ignored that under Order VII Rule 11, the plaint can be rejected only when (a) it does not disclose a cause of action (b) the relief claimed is invalid (c) sufficient stamp is not paid and (d) from the statement in the plaint, suit is barred by any law and so far as remaining two grounds are concerned, it is purely procedural i.e. (1) non supplying of plaint in duplicate and (2) non supplying of requisite number of copies as per total number of respondents.
Page 38 of 71HC-NIC Page 38 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Therefore, though one of the ground for rejection of the plaint provides that if suit is barred by any law, then, it may be rejected. It cannot be said that only because of such ground or any such provision when defendant Bank has took plea or defence about limitation, the suit is barred by law of limitation and, therefore, required to be rejected. Litigant who is taking shelter of such provision has to prove it by proper evidence before the Court that how suit is barred by particular law. Taking the plea is not enough for decision.
29. As discussed hereinabove, so far as limitation to file such suit is concerned, it is certainly a mixed question of fact and law, inasmuch as, as discussed hereinabove, period of limitation would not start from fixed date but it would start from some date which is to be considered from the averments in the document executed between the parties for the transaction under reference. In the present case, when such document itself is under scrutiny that whether it is a sale deed or result into mortgaging the property then unless that issue is decided and thereby unless the date is ascertained that from which date, limitation is to be counted, Page 39 of 71 HC-NIC Page 39 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER there is no question of deciding issue of limitation as a preliminary issue without permitting the plaintiff to adduce evidence to prove his case even on the issue of limitation. Therefore, there is no substance in the petition so as to quash the interlocutory order and to direct the Board of Nominees to decide the issue of limitation as preliminary issue or to stay the proceeding of the suit till then.
30. Though provision of the Code is to be applied so far as if it is possible in the proceeding before the Board of Nominees, the fact remains that the issue are always of two kinds; (1) issues of fact and (2) issues of law and notwithstanding that the case may be disposed of on a preliminary issue as provided in Rule 2 of Order XIV, the Court shall, subject to the provisions of Sub Rule 2 pronounce the judgment on all issues. Therefore, though sub Rule (2) of said Rule provides that the Court may postpone the settlement of other issues until the issue relates to the jurisdiction of the Court or barred by law in filing such suit is determined, and may deal with the suit in accordance with decision on such preliminary issue and, thereby, permitting the Court to Page 40 of 71 HC-NIC Page 40 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER dispose of the suit on an issue of law only, the fact remains that when the issue is with regard to facts then irrespective of deciding preliminary issue alone, the Court shall pronounce the judgment on all issues. It is undisputed fact that issue regarding limitation is not expressly disclosed either in Order VII, Rule 11 or Order XIV, Rule 2 of the Code and, therefore, when issue of limitation is involving issues on facts as well as law, such issue cannot be taken as a preliminary issue to dispose of the suit and even if it is so disposed, the Court shall pronounce the judgment on all issues. Therefore, when there is no dispute that issue of limitation has already been incorporated in the issues framed and then to be determined by the Court, then, Court is certainly going to decide such issue in its final judgment and, therefore, when remedy is available to the defendant Bank to challenge such issue in final judgment, I do not find any reason to interfere with in the impugned order.
31. In view of above facts and circumstances, though, there may be further discussion on the issue based upon rival submissions, the above position makes it clear that there is Page 41 of 71 HC-NIC Page 41 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER no substance in the petition and, therefore, petition deserves to be dismissed and is hereby dismissed which results into dismissal of Civil Application No.4242 of 2016 also wherein similar interim relief is prayed for to stay the further proceedings of Lavad Suit No.43 of 2011.
Special Civil Application No.11771 of 2017:
32. This is also a petition by defendant Bank challenging an order dated 17.6.2017 below Exh.234 by the Board of Nominees at Surat in same Lavad Suit No.43 of 2011, now, raising one another legal issue under the provisions of the Act. This application is preferred under Sub Section (2) of Section 96 of the Act for considering a question for decision that whether for the purpose of Sub Section (1) of Section 96 of the Act, the matter referred to the Board of Nominees for decision is a dispute or not. The application runs into as many as 15 pages with a prayer that the suit be dismissed declaring that for the purpose of Sub Section (1) of Section 96 of the Act, no dispute is arising between the parties within the meaning of Section 96(1)
(b) of the Act and, therefore, plaintiff is not entitled to any relief in such suit and Page 42 of 71 HC-NIC Page 42 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER to award heavy cost for filing false, frivolous and vexatious case.
33. At the outset, once again it is to be recollected here that infact the plaintiff Modi has initially preferred Civil suit before the Civil Court wherein it was the stand by the defendant Bank that the dispute raised by the plaintiff Modi in such Civil suit is a dispute within the meaning of Section 96 of the Act, and, therefore, only competent authority under the Act has jurisdiction to resolve such dispute and not the Civil Court. In fact, when defendant Bank has filed a separate application for rejection of the plaint by the Civil Court on such plea and ground, the plaintiff Modi has preferred present suit by withdrawing that suit.
34. Though it is submitted that such activity is preplanned and needs to be looked into seriously because the suit was filed on the very same day i.e. 10.2.2011 when Civil suit was withdrawn and wherein Board of Nominees has granted ex parte injunction. It is also submitted that the filing of the 2nd suit is not in accordance with law or as permitted by the Civil Court because the permission to Page 43 of 71 HC-NIC Page 43 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER file a fresh suit if any granted by the Civil Court, it is only for filing suit before the Civil Court and not before any other authority. For the purpose, reference is made to the provision of Order XXIII, Rule 1 of the Code submitting that though Court can grant the permission to withdraw the suit or part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim, it does not apply for filing of a suit before the Board of Nominees but such permission is only regarding filing of the suit before the same Court. The bare reading of the provision of Order XXIII, Rule 1 does not make any such sense so as to restrict the litigant to file appropriate proceedings before appropriate forum in appropriate manner when previous suit is allowed to be withdrawn with a liberty to file a fresh suit. Irrespective of such observation, it is also clear that in that case, withdrawal of suit from the Civil Court would certainly not result into resjudicata in filing fresh suit before the Board of Nominees.
35. Whereas, so far as consideration of dispute between the parties is concerned to scrutinize that whether it falls within the Page 44 of 71 HC-NIC Page 44 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER purview of Section 96 of the Act or not, the same set of discussion makes it clear that infact it was a plea and defence by the defendant Bank before the Civil Court which obliged the plaintiff Modi to file present suit before the Board of Nominees and, therefore, though I do not want to enter into further scrutiny and discussion on the principle of estopple that whether it applies to the defendant Bank, considering the meaning of word `estopple' I have no hesitation to say that the plea and defence by the defendant Bank before the Civil Court that the dispute raised by the plaintiff Modi before the Civil Court is pertaining to a dispute within the meaning of Section 96 of the Act and, therefore, Civil Court has no jurisdiction to entertain such suit would certainly debarred the defendant Bank to take such plea in the present suit which would otherwise result into refusing to entertain the grievance of the plaintiff Modi. It is settled legal position that every litigant should have right to resolve his dispute or problem through proper adjudication of it irrespective of result of such dispute which may be either in favour of such litigant or not.
Page 45 of 71HC-NIC Page 45 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER
36. If we consider the minute details to some extent, though it is avoided to be discussed herein, so as to avoid prejudice to either side in a pending trial before the Board of Nominees, for the same issues, atleast it is necessary to record here that the transaction between the plaintiff and the defendant was with reference to the business of the defendant Bank, inasmuch as, the property in question was dealt with in repayment of debt to the Bank which is the basic business of the defendant Bank and, therefore, reading of Section 96 makes it clear that it certainly requires to be adjudicated by the Board of Nominees. However, such observation is only prima facie and to decide the present petition only when such issue is already raised as a regular issue in the issues framed by the Board of Nominees in the pending Lavad Suit No.43 of 2011 and, therefore, that Court is free and empowered to decide such issue, therefore irrespective of all above observation but purely in accordance with law and facts and not by influencing itself by any pending proceeding or observation herein. If we peruse the impugned judgment, it is clear that the Board of Nominees has taken care of all the facts and circumstances before rejecting Page 46 of 71 HC-NIC Page 46 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER application by a reasoned order in 27 pages. The Board of Nominees has also considered the citations referred by the parties and as already discussed with reference to previous petition that this is petition under Article 226 and not a statutory appeal or revision and, therefore, though there is extra ordinary jurisdiction vested in the Court, it is clear and certain that this Court is not required to entertain all such petitions which can be avoided and when impugned order can be assailed in final appeal also. Therefore, this petition is also lacks merits even for further consideration and hence summarily dismissed.
37. Learned counsel for the defendant Bank has with chronology of events submitted that the Court shall also examine the attitude by the plaintiff Modi in filing two different suits in short span but through two different Power of Attorney Holders. It is submitted that Civil Suit No.555 of 2010 was preferred through one Power of Attorney Holder namely; Mr.Katpitia which was withdrawn on 10.2.2011 and on the very same day, Lavad Suit No.43 of 2011 is preferred through another Power of Attorney Holder namely; Pankaj Vanravan Nathvani. However, only because original Page 47 of 71 HC-NIC Page 47 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER plaintiff has changed his Power of Attorney Holder for filing another suit, the legal right cannot be jeopardized or blamed so as to decide against them that they have no right to agitate and to get justice in accordance with law.
38. It is also submitted that interim relief against defendant Bank granted by the Board of Nominees was negativated by the Tribunal and such rejection of interim relief was confirmed by the High Court in Special Civil Application No.6144 of 2012 but again 2nd application was filed for similar relief which is not permissible and therein High Court has directed to maintain status quo by both the sides which speaks for itself. However, when such orders were dragged to Hon'ble Supreme Court of India and ultimately in such proceedings when Hon'ble Supreme Court of India has not interfered with the order of status quo but directed the Board of Nominees to decide the suit within four months, it would be out of space or unnecessary to deal with such issue at this stage in the present petitions wherein practically such interim relief is not under challenge and when other interlocutory orders are under challenge. It cannot be ignored Page 48 of 71 HC-NIC Page 48 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER that different interlocutory applications by the defendant Bank for avoiding the adjudication of the suit and though it is legal right to challenge any interlocutory orders before the higher authority when such orders can be challenged in final appeal also and, more particularly, when defendant Bank is seeking to scrutinize the attitude of the plaintiff Modi in filing such suit after long time gap and through different Power of Attorney holder, then, attitude of defendant Bank is also required to be scrutinized. However, at this stage, when I am dealing with all other points based upon facts so also applicable law, it is made clear that determination of dismissing of these petitions is not based only upon such attitude of the defendant Bank to take diverse and contradictory stand and to dragged the proceedings in High Court from every interlocutory orders to see that suit does not proceed either before the Civil Court or before the Board of Nominees, for which defendant Bank has ample financial support at the cost of its members.
39. Learned advocate for the defendant Bank has also submitted that by its judgment and order dated 11.6.2012 in Special Civil Application Page 49 of 71 HC-NIC Page 49 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER No.6145 of 2012, such petition is preferred by the plaintiff Modi against the order dated 18.4.2012 by the Tribunal in Revision No.98 of 2011 whereby the Tribunal has set aside the order dated 4.7.2011 passed by the Board of Nominees below Exh.19 in Arbitration Suit No.43 of 2011 preferred by the defendant Bank for dismissal of the suit under Order VII, Rule 11(d) of the Code contending that it is time barred, the Coordinate Bench of this High Court has observed that when issues are cast, it would be open for the concerned party i.e. defendant Bank to submit an application to Board of Nominees requesting to decide issue of limitation as preliminary issue and, therefore, defendant Bank has preferred such application and it requires to be decided as preliminary issue. However, it is quite clear that only because some observation by High Court in previous litigation regarding possibility of filing an application to decide any issue as a preliminary issue does not mean that as and when such application is preferred, it is to be allowed without considering relevant facts and circumstances and law applicable at the relevant time. For the discussions made in this judgment, when it is clear that such application cannot be decided as preliminary Page 50 of 71 HC-NIC Page 50 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER issue, only because of some observation by the coordinate Bench in some orders, such application cannot be entertained as such.
40. It is also submitted by the defendant Bank that from sale deed dated 18.4.1941 till predecessor of plaintiff expired i.e. in the year 1996, none of them had ever challenged the sale deed or the possession by the Bank and it was only in the year 2011 when Bank has pursuant to Public Notice tried auction of piece of land, two different Power of Attorney Holders had mushroomed to disturb the right of the defendant Bank based upon Power of Attorney deed executed on the same date i.e. 24.1.2011 and, therefore, it is to be looked into in proper perspective and strictly against the plaintiff. However, so far as limitation is concerned, since it is one of the major issue under adjudication by the Board of Nominees, wherein, decision can be taken relying upon both; facts and law, it would not be appropriate for this Court either to discuss factual details on such issue or to decide the issue of limitation at this stage and, therefore, I leave it for appropriate decision to be taken by the Board of Nominees based upon the facts, circumstances, evidence and applicable law on Page 51 of 71 HC-NIC Page 51 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER the subject.
41. So far as assigning power to two different persons on the same day and filing two different suits by different Power of Attorney Holders are concerned, I do not find any substance in any such averments or submissions by the defendant Bank against the plaintiff Modi for the simple reason that there is no bar or ban in assigning powers to more than one person at a time. It is quite clear and obvious that assigning of powers is only subject to a condition that the act or omission done by the Power of Attorney Holder shall be considered as an act done by the person who has assigned such powers. In any case, one may assign his powers to different persons either for same activity or for different activities and only because of assigning of powers on same day, it cannot be said that there is any illegality and, thereby, adverse inference cannot be drawn against such person.
42. So far as facts, details and issue with reference to joining purchaser as well as proposed purchaser of piece of land of defendant Bank is concerned, though it is incorporated in chronology of list, when I am Page 52 of 71 HC-NIC Page 52 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER not dealing with such issue which is subject matter of Special Civil Application No.16247 of 2014, neither reference nor discussion or even determination on such fact is relevant at present.
43. It is also irrelevant at this stage pursuant to the direction of Hon'ble Supreme Court of India to decide the suit within four months when plaintiff Modi has prayed for prohibitory order against transfer of land in question by Public Notice issued in the year 2015 and proceeding thereafter till date. It is also contended by the defendant Bank that pursuant to pending Revision Petitions before the Tribunal, details of which is listed hereinabove, the hearing of suit requires to be stayed. However, for such relief, defendant Bank has to initiate appropriate proceedings before the Hon'ble Supreme Court of India, when Hon'ble Supreme Court of India has already directed to expedite the hearing of the suit and, therefore, such ground is now not available to the defendant Bank at least before this Court. For the same reasons, it cannot be said, as argued by the petitioner that the Board of Nominees is proceeding in Lavad suit in hot haste inspite of pendency of several petitions. On the Page 53 of 71 HC-NIC Page 53 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER contrary, it is evident that when Bank has moved the Civil Application for staying the further proceedings of the Lavad suit and when Coordinate Bench of this Court has stayed the proceeding of the suit, in fact, when such order was challenged, before the Hon'ble Supreme Court of India, Hon'ble Supreme Court of India has, on the contrary, directed the Board of Nominees to expedite the suit and to decide it within four months and thereby rejected the prayer of staying the suit by the defendant Bank and, therefore, such prayer cannot be granted in any manner whatsoever in any of such petitions for any reason whatsoever by any Court subordinate to the Hon'ble Supreme Court of India.
44. It is undisputed fact that plaintiff Modi has preferred the suit for redemption of mortgage and, therefore, unless such issue is decided by judicial pronouncement, it cannot be said that the suit is not maintainable in absence of specific bar against such suit in any enactment. It is also clear and certain that limitation for such suit is not prescribed as fixed period but it would vary as per prescribed period of limitation based upon and agreement between the parties at the time Page 54 of 71 HC-NIC Page 54 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER of mortgage and, therefore issue of limitation in such suit is obviously a combined issue of facts and law and, therefore, it cannot be decided in summary manner. As already discussed hereinabove though issue of limitation needs not to be dealt with or decided by this Court, the fact remains that it is to be considered with reference to the terms and conditions of deed in question and bare reading of some part of the deed which is reproduced in the suit and in proceedings gives an impression that probably there is contradiction in the averments in the deed and, therefore, proper interpretation of such deed is necessary and in view of such factual position also suit cannot be stayed but requires final adjudication so as to avoid multiplicity of litigation. It cannot be ignored that in judgment and order dated 22.8.2012 in Letters Patent Appeal No.872 of 2012, Division Bench of this High Court has observed as under: "9. In our view, when it is undisputed position that the sale deed has been executed and the property has been transferred, nothing is required to be done further except observing that the legality and validity of the sale if any is brought under challenge before the learned Nominee in the pending suit, the learned Nominee should be at the liberty to examine the said aspects and should be Page 55 of 71 HC-NIC Page 55 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER in a position to pass appropriate orders at the time of final disposal of the suit. Hence, it is observed that the appellantorig. Plaintiff shall be at the liberty to raise the contention on the aforesaid aspect, and if such challenge is raised before the learned Nominee, the learned Nominee shall be at the liberty examine and decide the same in accordance with law together with disposal of the suit."
45. Thereby, it is necessary for the Board of Nominees to decide the suit finally whereas so far as other observations regarding raising of issue before the the Board of Nominees is concerned, though every litigant has a right to raise any issue, the fact remains that such issue is to be decided in accordance with law, facts and circumstances on given date but cannot be decided in favour of particular litigant only because of any such observation permitting the litigant to raise such issue.
46. It is also necessary to recollect the following passage from the judgment and order dated 11.6.2012 in Special Civil Application No.6145 of 2016 against which Letters Patent Appeal No.872 of 2012 was preferred but it was disposed of in terms of observations and directions in its order dated 22.8.2012.
Page 56 of 71HC-NIC Page 56 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER "16. It is true that in light of the pleadings one of the important issues which would arise for decision by the Board of Nominees will be about limitation.
16.1. However, it would be one of the diverse issues and that therefore the Board of Nominees will have to proceed to cast all issues which arise from the pleadings filed by the parties and the issues so cast may include the issue about limitation.
16.2. The Board of Nominees may, thereafter, proceed, in accordance with law, to decide any issue (out of the total issues cast in the proceedings) as preliminary issue and for such purpose any of the parties to the proceedings may make appropriate application.
16.3. Ordinarily if the issue is pure question of law and if it is such which can be decided without recording evidence then it may be decided as preliminary issue.
17. From the foregoing discussion and from the facts of the case the issue about limitation seems to be connected with the issue related to the nature of document (i.e. as to whether it is a sale deed or deed of mortgage) and to decide the former, latter also will have to be simultaneously considered.
18. When the pleadings are filed the obligation is on the Court to frame issues and to decide the said issues. If any or more issues are pure Page 57 of 71 HC-NIC Page 57 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER questions of law and is/are such which can be decided without recording evidence then Court may consider the request to decide such issue/s as preliminary issue/s, whereas the issues, which may require evidence should, ordinarily, be tried together so that the parties may not have to lead evidence in two stages phases.
18.1. In view of the foregoing discussion the order of the learned Tribunal remitting the case to the Board of Nominees is not disturbed, however, the direction to the Board of Nominees to decide the issue of limitation as preliminary issue is set aside and modified with clarification that the Board of Nominee shall proceed, expeditiously, to cast all issues in light of the pleadings available on record which may include the issue about limitation (depending on the pleadings filed by the parties). When the issues are cast it would be open to the concerned party to submit an application to the Board of Nominee requesting the Board of Nominee to decide the issue of limitation as preliminary issue. If such application is filed by the respondent then such application shall be expeditiously decided by the Board of Nominees on its own merits and in accordance with law. The Board of Nominee shall take appropriate independent decision in accordance with law and in light of the facts of the case and the pleadings submitted by the parties and applicable provisions and settled legal Page 58 of 71 HC-NIC Page 58 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER position, however without being influenced by the order passed by the learned Tribunal. The Board of Nominee shall endeavor to decide the suit as expeditiously possible and preferably within three months. The Board of Nominee shall also proceed to cast the issues expeditiously and the said process will not be deferred beyond 7 days from service of certified copy of this order."
47. The above observation shows that infact the learned Single Judge has, as back as on 11.6.2012 observed that the Board of Nominees shall endeavor to decide the suit as expeditiously as possible and preferably within three months. Therefore, if defendant Bank had cooperated for expeditious disposal of the suit at the relevant time, then, probably, there would be an end of different proceedings rather than multiplicity of litigation at interim stage against several different interlocutory orders.
48. It is also evident from the record that in Lavad suit No.43 of 2011 as many as 13 issues were already framed at Exh.76, as back as on 27.7.2012. The list of issues at Annexure `S' shows that there is specific issue regarding limitation as issue No.9 that whether defendant proves that the suit is barred by Page 59 of 71 HC-NIC Page 59 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER law of limitation ? There is also specific issue with reference to the provision of Sections 96, 97 and 99 so also 167 of the Act that whether plaintiff proves that dispute raised in the plaint is within the purview of the Act and that whether defendant proves that plaintiff suit is barred by the provision of the Act. There is also specific issue that whether defendant proves that the deed dated 18.4.1941 is sale deed only, in addition to other relevant issues based upon the pleadings by both the parties. Therefore, when relevant issues are already framed and when Board of Nominees otherwise going to decide such issues in accordance with law, there is no reason to interfere with any proceedings of the Court which is directed to decide the suit within four months by Hon'ble Supreme Court of India.
49. So far as litigations pending before the Tribunal is concerned, the discussion herein makes it clear that only because of pendency of such litigation, proceedings of suit cannot be stayed by this Court. Learned advocate for the defendant Bank has also referred paragraph 2 on page No.51 which is part of impugned order on page No.49 submitting that there is observation by the Page 60 of 71 HC-NIC Page 60 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Board of Nominees which prejudices the right of the defendant Bank in final determination of the suit. It is also submitted that such finding was not necessitated and beyond the scope of ambit of application at Exh.184 which is decided by such impugned order dated 7.1.2016 against the defendant Bank. It is also submitted that in same paragraph there is contradictory findings that without referring to the evidence, the tenure of the deed cannot be decided and, therefore, the issue of limitation cannot be decided as a preliminary issue. The reading of entire order, however, makes it clear that in fact there is no contradictory findings but in any case which is an observation by the Court at interlocutory stage to decide an interlocutory order and, therefore, at the most, it can be observed while disposing such petitions, the Board of Nominees shall decide the suit in accordance with law without being influenced by any such observation in any such interlocutory order.
50. Though defendant Bank has raised the issue of authority of Power of Attorney Holder, the fact remains that on one hand, such issue is also required to be dealt with while deciding the suit finally i.e. after evidence is Page 61 of 71 HC-NIC Page 61 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER recorded and factually when document of Power of Attorney Holder deed is already produced on record, there is no reason to object the judicial proceeding on such ground.
51. It is submitted by the plaintiff Modi that in fact, there is no provision to dismiss the suit under the Act as against the issue raised by the defendant Bank that pursuant to provision of Section 96 of the Act, the Board of Nominees even if having powers of Registrar pursuant to government notification dated 21.7.2010 to exercise the powers under Sections 96, 97, 98, 99, 100 and 101 so also under Sections 41 to 43, initially, either Registrar or the Board of Nominees, as authorized by the notification has to arrive at a conclusion that there is a dispute in existence between the parties under Section 96 of the Act and then and then, he can refer such issue to the Board of Nominees.
52. It is also submitted that though there is a practice to accept the plaint as a suit and to proceed further without deciding the preliminary issue that whether dispute is falling within the provision of Section 96 of the Act or not; the Board of Nominees had, may be because of practice, accepted the Page 62 of 71 HC-NIC Page 62 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER plaint and admitted the suit even without offering an opportunity to the defendant to explain that there is no dispute within the Section 96 of the Act. However, though law point can be raised at any point of time, the fact remains that such issue is raised first time by the defendant Bank and that too after taking a plea before the Civil Court, that the dispute is within the purview of the Act and, therefore, Civil Court has no jurisdiction. Therefore, as already discussed hereinabove, the stand of the defendant is not correct and in any case, dispute raised by the litigant needs to be adjudicated in accordance with law instead of tossing it taking shelter of technicalities.
53. In support of its submission, defendant Bank is relying upon the decision between Popatlal Ravchand Bhau v. Dasha Porwad Jain Cooperative Housing Society Limited reported in 1970 GLR 147. No doubt that at the relevant time, the learned Single Judge has observed that if the Registrar under the Act proceed to adjudicate upon the dispute himself, then, it is applicable upon him first to hear the parties as to existence of dispute and then after having done so, he Page 63 of 71 HC-NIC Page 63 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER must record first the finding that he is satisfied that the dispute exists and then again proceed to call upon the parties to appear before him and adjudicate upon the dispute on its own merits. However, such sentence is to be read properly because it is starting with the word "assuming" that and conclusion thereafter reads thus; Section 96 read with Section 98 does not admit of such a construction. If the Registrar, on receipt of a reference which is to be made in the prescribed format in respect of a dispute of a party contemplated by Section 96 is satisfied on the matters placed before him that a dispute as envisaged by Section 96 exists, it is not further necessary for him to inquire into the existence of this dispute. The reading of entire judgment certainly confirms that it is nowhere held by the Court that it is obligatory for the Registrar to call upon the parties and to decide at first instance that whether dispute exists under Section 96 or not. What is stated by the Court is quite simple that once Registrar refers the dispute to the Tribunal such order is not subject to challenge because it is not a quasi judicial order but only administrative in nature. By practice, when powers of Registrar are nominated to the Page 64 of 71 HC-NIC Page 64 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Board of Nominees also, just to avoid such administrative order, it becomes clear that once suit is filed before the Board of Nominees of Registrar and, thereafter, if notice is issued by the Board of Nominees, then, there would be presumption that the Board of Nominees has taken a decision that dispute under Section 96 is in existence.
54. Defendant Bank is also relying upon the decision of Hon'ble Supreme Court of India in the case of Gujarat State Cooperative Land Development Bank Ltd. v. P.R. Mankad reported in 1979(3) SCC Page 123 and referred paragraphs 21 and 22 of such judgment. The perusal of these two paragraphs makes it clear that, though the question regarding existence of dispute under Section 96 shall be considered by the Registrar, his decision shall be final and, therefore, though it is incumbent on Registrar to decide as a preliminary issue that whether the dispute is of a kind under sub section (1) of Section 96 falling within his jurisdiction and though if preliminary issue is found in negative, he will have no further jurisdiction to deal with the matter; as discussed hereinabove, when powers of Registrar of Cooperative Page 65 of 71 HC-NIC Page 65 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Societies is also vested in the Board of Nominees and when Board of Nominees has issued notice to the defendant Bank then there is prima facie consideration that Board of Nominees has considered the dispute under Section 96. Therefore, only because of such judgment, in the present case, when matter has been dragged upto Hon'ble Supreme Court of India on different counts when such plea was never raised, the decision in paragraph 12 of the same judgment would also equally applicable wherein the Hon'ble Supreme Court of India has confirmed that new plea cannot be raised to be permitted at such belated stage. Surprisingly, the situation in such reported case and in the present case are almost similar, inasmuch as, while rejecting the new plea, the Hon'ble Supreme Court of India has also observed that such plea is in direct contradiction to the position taken by the appellant in its Writ petition and the affidavit in supported thereof filed in the High Court. In the present case also, the defendant Bank has taken a contradictory stand both; before the Civil Court so also before the Board of Nominees regarding existence of dispute under Section 96 and, therefore, now they are certainly debarred from taking such plea at this stage.
Page 66 of 71HC-NIC Page 66 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Similarly, Hon'ble Supreme Court of India has also considered the same issue which is relied upon by this Court that this is not purely a legal plea but mixed plea of law and fact which cannot be determined on the basis of material only on record but it requires adjudication whereby both the parties would have ample opportunity to prove their own case and to disprove the case of other side. Therefore, this judgment would not be helpful to the defendant Bank to get any benefit in its favour.
55. The issue regarding whether the dispute is with reference to the banking business or a sale transaction cannot be determined at this stage but it would certainly require proper adjudication.
56. There is no substance in the submission that plaintiff Modi is neither the Board of the Society nor a person claiming through Member and when predecessor of plaintiff has not raised any dispute and suit is filed through Power of Attorney Holder, suit is not maintainable because it goes without saying that right over the property can be succeeded by the legal heirs and, therefore, legal heirs are entitled to raise all the issues Page 67 of 71 HC-NIC Page 67 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER which can be raised by their predecessor and so far as Cooperative Societies, if predecessor is Member of the Society, legal heirs would automatically becomes Member of the said Society.
57. The plaintiff Modi is relying upon the decision in the case of Dipakbhai Prahaladbhai Patel v. Rameshbhai Tribhovanbhai reported in 2016(2) GLH 421, wherein, it is held by the coordinate Bench of this Court that all the provisions of the Code do not apply to the Lavad suit filed before the Board of Nominees for dispute covered u/S.96 of the Act - there is no provision for rejection of the suit on the ground of either limitation or nondisclosure of the cause of action, since the provision of Order XIV has no application to the suit filed before the the Board of Nominees under the provisions of the Act, even such opportunity of raising the issue of limitation or issue of bar of suit created by any law is not available so as to decide such issues first in the Lavad suit filed under the Act, scheme of S. 98 and 99, which provide for settlement of dispute and procedure for settlement of dispute read with Page 68 of 71 HC-NIC Page 68 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Rule 41 to 44 of the Rules, do not provide for rejection of the suit and procedure for deciding the suit is differently provided, suit once filed is to be decided by Board of Nominee by recording evidence, decision is to be given in accordance with justice, equity and good conscience, Board of Nominee has not committed any error in rejecting application preferred by petitioners.
58. Plaintiff Modi is also relying upon the decision of the Hon'ble Supreme Court of India in the case of Tata Iron & Steel Co. Ltd. v. Union of India reported in 2001(2) SCC 41, more particularly paragraph Nos.20, 21, and 22 of the judgment regarding regarding estopple by conduct.
59. In view of above facts and circumstances, Special Civil Application No.4275 of 2015 shall be listed separately hereinafter with Special Civil Application No.16247 of 2014 for necessary orders.
60. However, Special Civil Application No.20107 of 2015 is dismissed and, thereby, connected Civil Application No.4241 of 2016 do not survive and hence the same stands dismissed.
Page 69 of 71HC-NIC Page 69 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER Special Civil Application No.495 of 2016 is dismissed and, thereby, connected Civil Application No.4242 of 2016 do not survive and hence, the same stands dismissed. Similarly, Special Civil Application No.11771 of 2017 is also dismissed.
61. So far as Special Civil Application No.12352 of 2017 is concerned since it is not listed on Board when above petitions were heard, it is also to be listed on 30.8.2017 with other two petitions, as disclosed in paragraph no.2 hereinabove.
62. It cannot be ignored that as per list of pending litigations when it is already disclosed that such petition is against the order below Exh.251 regarding cross examination of Power of Attorney Holder of the plaintiff Modi so as to defer it for some time, now, when other petitions are disposed of by this common order and dismissed, practically, this Special Civil Application does not survive, more particularly, for factual reason also and infact in absence of Interim Relief in favour of defendant Bank when defendant Bank has also cross examined the witnesses of the plaintiff Modi before the lower Court.
Page 70 of 71HC-NIC Page 70 of 71 Created On Sat Aug 12 03:09:31 IST 2017 C/SCA/16247/2014 ORDER
63. However, it is made clear that the Board of Nominee has to decide the Lavad Suit No.43 of 2011 and issues raised therein purely in accordance with evidence and law applicable to the facts and circumstances of the case and, thereby, without being influenced by any observations either in any Interim and Interlocutory Order in this order which are purely for limited purpose to decide such interlocutory order and present petitions.
(S.G. SHAH, J.) * Kotecha Page 71 of 71 HC-NIC Page 71 of 71 Created On Sat Aug 12 03:09:31 IST 2017