Gujarat High Court
Jigna Manojbhai Tanti vs Bank Of Baroda & 3 on 12 March, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/8942/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8942 of 2013
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JIGNA MANOJBHAI TANTI....Petitioner(s)
Versus
BANK OF BARODA & 3....Respondent(s)
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Appearance:
MS SANGEETA PAHWA, ADVOCATE WITH MR TEJAS P SATTA,
ADVOCATE for the Petitioner(s) No. 1
MS NALINI S LODHA, ADVOCATE for the Respondent(s) No. 1
MR BHAVESH HAJARE, AGP for the Respondent No.3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 12/03/2014
ORAL ORDER
1. Heard Ms.Pahwa, learned advocate who appeared for Mr.Satta, learned advocate for the petitioner and Ms.Lodha, learned advocate for respondents No.1 and 2 and Mr.Hajare, learned AGP for respondent No.3. Mr.Satta, learned advocate has submitted that in present petition, right from the stage of institution of the petition, Ms.Pahwa, learned advocate has been appearing and all along the matter is conducted by her.
2. In present petition, the petitioner has Page 1 of 7 C/SCA/8942/2013 ORDER prayed, inter alia, that:
"9(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and settingaside the impugned order dated 26.4.2013 passed by the Ld. Additional District Judge, Rajkot in Civil Misc. Appeal No.4/2013 and also the order dated 5.1.2013 passed by Ld. 13th Additional Senior Civil Judge, Rajkot below Ex.5 application in Regular Civil Suit No.301/2009.
(B) YOUR LORDSHIPS may be pleased to quash and set aside the auction proceedings with regard to the commercial property of the petitioner situated at Rajkot being property bearing city survey ward No.7, sheet no.219, in which city survey no.2924, 2925 paiki, 2926 paiki, 2501, 2503, 2504 paiki, 2506 and 2509, carried out by the respondents."
3. The petitioner is aggrieved by order dated 26.4.2013 passed by the learned District Court in Misc. Appeal No.4 of 2013 which was preferred by the petitioner - plaintiff against the order dated 5.1.2013 whereby the learned trial Court rejected the plaintiff's application for interim relief. The petitioner is aggrieved by the said order dated 5.1.2013 also.
4. So far as relevant facts are concerned, it has emerged from the record that after having availed loan / credit facility from the respondent No.1 bank, the father of the Page 2 of 7 C/SCA/8942/2013 ORDER petitioner - plaintiff failed to repay the loan amount. Consequently, respondent No.1 bank initiated proceedings / actions under provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against the mortgaged properties, i.e. secured assets which were mortgaged by the plaintiff's father while availing the loan. When respondent No.1 bank initiated the proceedings, the daughter (i.e. the plaintiff) of the borrower filed the suit in the Court of 13th Additional Senior Civil Judge, Rajkot. The suit was registered as Regular Civil Suit No.301 of 2009. Though the borrower had mortgaged two properties with respondent No.1 bank, one being residential property and the other being commercial property, initially the plaintiff instituted the suit only with reference to residential property. The plaintiff also preferred an application for interim relief which came to be rejected by the learned trial Court vide order dated 5.11.2009. The said order was Page 3 of 7 C/SCA/8942/2013 ORDER unsuccessfully challenged by the plaintiff by way of Appeal No.92 of 2009 which came to be dismissed by the learned District Court vide order dated 21.12.2009. Against the said order, a writ petition was preferred wherein, initially, the Court directed the parties to maintain status quo. At one stage, the Court also allowed the bank to sell the property. Against the orders passed by the learned single Judge, Letters Patent Appeal was preferred. It is stated at the bar by the learned advocates that now the petition is disposed of. During the pendency of the suit proceedings, the plaintiff introduced amendment and also sought relief against the bank's action qua the commercial property and in that regard, the plaintiff also prayed for interim relief. Thus, the application seeking interim relief qua the commercial property was heard by the learned trial Court and the said application came to be rejected by the learned trial Court by one of the impugned order dated 5.1.2013. Against the said order dated 5.1.2013, Page 4 of 7 C/SCA/8942/2013 ORDER the plaintiff preferred appeal which came to be registered as Civil Misc. Appeal No.4 of 2013. After taking note of the fact that in the meanwhile, the property in question is already sold, as part of the action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, by the bank, the learned first appellate Court dismissed the appeal as infructuous vide impugned order dated 26.4.2013. The said order dated 26.4.2013 reads thus:
"Order Heard Mr. M.M. Patel for respondent no.1 & 2. Appeal is admitted and R&P is called.
Sd/ Illegible Dt.11.2.13 Order The appellant has challenged the order passed by 13th Addl. Civil Judge, Rajkot in R.C.S. No.301/2009 rejecting amended injunction application of the plaintiff/appellant in respect of premises situated in City Survey Ward No.7 sheet no.219 bearing City Survey No.2494, 2495 paiki, 2496 paiki 2501, 2503, 2504 paiki, 2506 and 2509 of land admeasuring 535 meters. So the house situated on the said land which was mortgaged to respondent Bank of Baroda. The respondent bank has filed a pursis Exh.8 stating that under the provisions of securitisation Act the said house has been sold to Keshubhai Mohanbhai and Preshbhai Mohanbhai to recover the dues of the Bank, the sale certificate has been issued and possession has been handed over to them. Therefore, the cause of action for the suit land this appeal does not survive. This appeal has become infructuous and hence it is disposed off. No costs.Page 5 of 7 C/SCA/8942/2013 ORDER
Sd/ Illegible 26.4.2012."
5. Against the said orders dated 5.1.2013 and 26.4.2013, present petition is preferred.
6. Thus, what emerges from the above mentioned factual details is that the other petition being Special Civil Application No.14 of 2010 is disposed of by the learned single Judge vide order dated 1.8.2013. According to the learned advocates for the parties, Special Leave Petition against the orders passed in writ petition and Letters Patent Appeal, is pending before Hon'ble Apex Court. Moreover, the property in question, i.e. the second / commercial property which is the subjectmatter of present petition is already sold by the respondent bank by way of auction under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and that, therefore, the cause of action and the cause for prosecuting present petition, which is Page 6 of 7 C/SCA/8942/2013 ORDER essentially and substantially against the order passed by the learned trial Court rejecting request for interim relief against the action of the bank to dispose of the property, is lost and does not survive.
7. In the aforesaid view of the matter and having regard to the abovementioned facts, learned advocate for the petitioner submitted that the petitioner has instructed her to not press the petition and to withdraw the petition at this stage. Learned advocate for the petitioner submitted that in view of the said instruction by the petitioner, she does not press the petition and withdraws the petition.
8. In view of the statement by learned advocate for the petitioner, the petition is disposed of as withdrawn. Orders accordingly. In the facts of the case, no costs.
(K.M.THAKER, J.) Bharat Page 7 of 7