Gujarat High Court
Pal Cospo (India) Pvt Ltd & 4 vs Kankriya Maninagar Nagrik Sahkari Bank ... on 9 January, 2014
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/1306/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1306 of 2013
In SPECIAL CIVIL APPLICATION NO. 9072 of 2013
With
CIVIL APPLICATION NO. 11724 of 2013
In
LETTERS PATENT APPEAL NO. 1306 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PAL COSPO (INDIA) PVT LTD & 4....Appellant(s)
Versus
KANKRIYA MANINAGAR NAGRIK SAHKARI BANK LTD....Respondent(s)
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Appearance:
Page 1 of 4
C/LPA/1306/2013 JUDGMENT
MR KIRTIDEV R DAVE, ADVOCATE for the Appellant(s) No. 1 - 5.3
MR AJ SHASTRI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 09/01/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. Heard Mr.H.S. Munshaw, learned advocate assisted by Mr.Kirtidev Dave learned advocate for the appellants and Mr.A.J. Shastri, learned advocate for the respondent.
2.1 The brief facts of the case are that the respondent had filed Summary Lavad Suit No.262 of 2002 against the appellants before the Registrar's Board of Nominees, Ahmedabad for recovery of Rs.16,33,626 00 under Sec.97 and 99(4) of the Gujarat Cooperative Societies Act, 1963 [henceforth "the Act"]. In this suit the appellants applied for leave to defend. The leave was granted with condition to deposit of 8% amount by each of the applicant. The said order was challenged by the appellants before the Gujarat State Cooperative Tribunal, Ahmedabad [henceforth "the Tribunal"] by filing Revision Application No.663 of 2002. The Ld. Tribunal had granted stay of the entire order and proceedings initially. After hearing all the stay was confirmed and it was stayed for appellant No.12. As the revision was pending the appellants could not submit their defense before the Nominee. In absence of the defense and during the penency of the above revision the Lavad Suit came to be decreed.
Page 2 of 4C/LPA/1306/2013 JUDGMENT 2.2 The appellants challenged the same by filing Appeal No.1357
of 2003 before the Ld. Tribunal. The Ld. Tribunal dismissed the appeal by judgment and order Dt.21032013. These orders are under challenge in the petition before the Ld. Single Judge which have been dealt with and dismissed.
2.3 The main dispute is that during the pendancy of the revision application the appellants could not produce the evidence. Therefore, the decision of the Ld. Nominees and Ld. Tribunal are against the rule of natural justice. The order for deposit would amount to revival of the order of the Ld. Nominee at the initial stage. This would mean that the petition is decided against the petitioner before its hearing. The issue whether the unconditional leave is required to be granted or not is decided against the petitioners.
2.4 It is submitted that the issue of conditional deposit was subject matter of revision. The same is questioned in the main SCA. Considering this aspect the order of deposit of Rs.10,00,00000 directed by Ld. Single Judge, is unreasonable, unjust and very harsh. This would amount to denial of the right for petition. Therefore the same is required to be quashed and set aside.
2.5 The petitioners are not only challenging the issue of decree but also raises the question of unjust favour to the respondent by the Statutory Authority. The decision of the Authorities are in violation of statutory provision and that has denied the proper chance of defense, which is statutory right. Therefore, the present appeal is required to be allowed.
3. The order dated 01.09.2003 passed in Summary Lavad Suit No.262 of 2002 by the Board of Nominees as well as order dated 21.03.2013 passed in Appeal No.1357 of 2003 by the Gujarat State Page 3 of 4 C/LPA/1306/2013 JUDGMENT Cooperative Tribunal were challenged by the appellants by filing Special Civil Application No.9072 of 2013 under Articles 226 and 227 of the Constitution of India. Against the order 01.09.2003 passed in Lavad Suit No.262 of 2002, writ would lie under Article 227 of the Constitution of India. Learned counsel for the appellants has urged that writ Court, while deciding the writ petition, has not mentioned as to whether writ petition was decided under Article 226 or 227 of the Constitution of India. Merely because Article is not mentioned by the learned Single Judge that by itself cannot be said that the writ petition was decided under Article 227 of the Constitution of India and that cannot confer jurisdiction on this Court to hear this Letters Patent Appeal, more particularly, in view of the fact that in the suit matter, writ petition is filed under Article 227 of the Constitution of India.
4. In view of legal position in the case of the Gujarat State Road Transport Corporation vs. Firoze M. Mogal in Letters Patent Appeal No.596 of 2008 decided on 26.12.2013, this Letters Patent Appeal is dismissed as not maintainable.
5. In view final disposal of this Letters Patent Appeal, Civil Application No.11724 of 2013 does not survive and stands disposed of accordingly.
(V.M.SAHAI, J.) (K.J.THAKER, J) chandresh Page 4 of 4