Gujarat High Court
Apex Bank Of Urban Co-Operative Banks Of ... vs Madhavpura Mercantile Co Operative ... on 7 October, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/LPA/761/2018 ORDER DATED: 07/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 761 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 1423 of 2010
=============================================
APEX BANK OF URBAN CO-OPERATIVE BANKS OF MAHARASHTRA AND
GOA
Versus
MADHAVPURA MERCANTILE CO OPERATIVE BANK LTD.(IN
LIQUIDATOR) & 2 other(s)
=============================================
Appearance:
MR MIHIR H PATHAK(5261) for the Appellant(s) No. 1
for the Respondent(s) No. 4
MR SN SOPARKAR SR. ADVOCATE with MR AMAR N BHATT(160) for the
Respondent(s) No. 3
MR KAMAL TRIVEDI SR. ADVOCATE with MS DHARMISHTA RAVAL(707)
for the Respondent(s) No. 2
MR NANDISH CHUDGAR FOR NANAVATI ASSOCIATES(1375) for the
Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 07/10/2022
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. The order dated 07.09.2017 passed in Special Civil Application 1423 of 2010 is under challenge in this intra-court appeal. The order of status-quo came to be passed while issuing notice on 19.07.2018, which was vacated by order dated 27.12.2018. This order was challenged before the Hon'ble Apex Court by the appellant - original respondent no. 3 in Special Page 1 of 5 Downloaded on : Tue Oct 11 20:44:25 IST 2022 C/LPA/761/2018 ORDER DATED: 07/10/2022 Leave to Appeal (C) 12680 of 2019 which was not entertained or in other words, it was disposed of with following observation:
"We are not inclined to entertain this petition. However, we request the Division Bench of the High Court to dispose of the Appeal without being influenced by the impugned order, as expeditiously as possible and not later than six months from today."
2. Hence, we have taken up this appeal for hearing, since the Hon'ble Apex Court has requested this Court to dispose of the appeal expeditiously and not later than six months. Hence, we called upon Mr. Mihir H. Pathak, learned counsel appearing for the appellant to address his arguments. However, he seeks for time on three grounds ; (i) he does not have the case papers as the entire file is sent to the learned advocate appearing before the Hon'ble Supreme Court; (ii) some advocates who represented the appellant before the Hon'ble Apex Court are likely to come and address the arguments; and (iii) there are certain other documents which requires to be produced by way of subsequent events which have taken place. 2.1. When the Hon'ble Apex Court has made a request to this Court to dispose of the appeal expeditiously and within a time Page 2 of 5 Downloaded on : Tue Oct 11 20:44:25 IST 2022 C/LPA/761/2018 ORDER DATED: 07/10/2022 frame, we are of the considered view that the request made by the Hon'ble Apex Court requires to be duly complied or acceded to and as such, we requested the learned counsel appearing for the appellant to address the arguments. To redress the grievance of the appellant's counsel of file not being available, the entire file of the Hon'ble the Chief Justice was handed over to the learned counsel appearing for the appellant to make his submissions. However, even after receiving the file, he is not able to address the arguments and he has prayed for adjournment being granted. Since there is already a request made by the Hon'ble Apex Court to this Court to dispose of the appeal expeditiously and within a time frame, we are of the considered view, adjourning this matter to any further date would not be in the best interest of the parties, and if we accede to the request, it would be contrary to the order passed by the Hon'ble Apex Court.
3. That apart, we notice from the order passed by the learned Single Judge, which is impugned in the present appeal that during the course of arguments, further affidavit came to be Page 3 of 5 Downloaded on : Tue Oct 11 20:44:25 IST 2022 C/LPA/761/2018 ORDER DATED: 07/10/2022 filed by writ applicant which was taken note by the learned Single Judge vide paragraph 6.1. and observed thus:
"6.1. Copies of the said mentioned communication xxx xxx on record. The facts stated in the further affidavit travelled beyond the scope of the controversy in the petition and that they are besides the prayer made in the petition. It was because the respondents including the RBI agreed to take the said factual aspects on record to make the facts part of the record, the further affidavit is allowed to be filed in that regard."
3.1. Taking note of the contents of the further affidavit, the impugned order came to be passed by consent. It has been recorded by the learned Single Judge to the following effect:
"7. This further order is passed because the parties have concurrence for the same."
4. At this juncture, Mr. Pathak, learned counsel appearing for the appellant (third respondent before the learned Single Judge) would submit that appellant had not given its concurrence. However, the aforestated extracted portion of the order of the learned Single Judge would indicate that parties had concurred for the same. If appellant herein who was the third respondent before the learned Single Judge has not concurred with the same, it is open for the appellant to take such steps to redress his grievance before the learned Single Page 4 of 5 Downloaded on : Tue Oct 11 20:44:25 IST 2022 C/LPA/761/2018 ORDER DATED: 07/10/2022 Judge as he may be advised to do so. It is also contended by Mr. Pathak that further affidavit which was filed by the writ applicant had not been served upon the counsel representing the third respondent before the learned Single Judge. If it is so, it would be a further additional ground for the appellant to seek redressal of his grievance before the learned Single Judge by taking appropriate steps. Hence, keeping open the right of the appellant to pursue his grievance if any, before the learned Single Judge, in the manner known to law and keeping open the rights of respondent's herein to oppose the same, this appeal stands dismissed. It is made clear that we have not expressed any opinion with regard to merits and all contentions of both parties have been kept open.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) phalguni Page 5 of 5 Downloaded on : Tue Oct 11 20:44:25 IST 2022