Aviraj Traders v. Gujarat STATE Co-operative Tribunal
1997-10-03
S.K.KESHOTE
body1997
DigiLaw.ai
S. K. KESHOTE, J. ( 1 ) THE matter has come up for final order to be passed in the Civil application. This Court on 7. 8. 1997 granted interim relief in terms of para 7 (b) till next date. Heard the learned counsel for the applicant. In Special Civil Application No. 4929/93 the petitioner has challenged the order of the Gujarat State Co-operative Tribunal dated 8th April, 1993 under which the appeal preferred by the petitioner against the judgment and award passed by the Board of nominee, Ahmedabad, in Arbitration Suit No. 201/91 on 29th October, 1991 has been confirmed. In the arbitration suit the money decree has been passed against the petitioner. This suit has been filed by the respondent Bank, namely, Suprabhat Sahkari Co-operative bank Ltd. , at Ahmedabad in connection with the dues of the Bank against the petitioner. The bank has extended the facility of overdraft limit to the petitioner and when the amount outstanding in his account was not cleared by the petitioner, the bank has filed the aforesaid suit. ( 2 ) SPECIAL civil application has been admitted. Ad interim relief has not been pressed though in the Special Civil Application prayer has been made for interim relief. In para 8 (c) of the Special Civil Application the petitioner prayed for stay of the operation, execution and implementation of the order or the award in Arbitration Suit No. 2014/88 dated 29th October, 1991. As it is a case of award in a money suit and stay was not granted by this Court, the bank was perfectly legal and justified in its action to file application for execution of the award, and accordingly it filed darkhast No. 51/96 on 25th January, 1996 in the City Civil Court at Ahmedabad. Notice of this darkhast was issued to the petitioner. What the applicant stated is that it could not be served upon it. The applicant filed this Civil Application and prayer has been made therein to quash and set aside the execution proceedings arising out of the judgment and award passed in arbitration Suit No. 2014/88, and further prayer has been made for stay of the execution proceedings in darkhast No. 51/96. Interim relief has been granted by this Court as stated earlier and the matter has come up for consideration for final order to be passed.
Interim relief has been granted by this Court as stated earlier and the matter has come up for consideration for final order to be passed. ( 3 ) FROM the Civil Application I find that the applicant has not accepted the notice issued to him by the City Civil Court at Ahmedabad in darkhast No. 51/96. So the petitioner has not raised any objection against the execution of the award or decree before the executing Court and straight away filed this Civil Application praying for quashing and setting aside the execution proceedings. When the award and judgment in arbitration suit is there, I fail to see any justification in the prayer made for quashing and setting aside of the execution proceedings. The judgment and award in question is executable and it is settled law that mere filing of appeal does not automatically amount to say of the execution of the decree. The same principle can also be conveniently applied to the proceedings under Art. 226 or 227 of the Constitution. In the present case it is true that special Civil Application has been filed by the petitioner and it has been admitted, but the court has not granted interim relief. Merely filing of Special Civil Application will not amount to stay of execution of the judgment and award. When the award and judgment is there the holder thereof has all the right to take proceedings for execution thereof and this court cannot quash and set aside the execution proceedings. Execution proceedings are necessarily proceedings which follow from the decree and until the decree is set aside these proceedings cannot be quashed and set aside. However, in case the decree is set aside finally, then certainly at that time if these proceedings are pending then the same will automatically come to an end, which stage has not reached. Learned counsel for the applicant contended that the award and judgment passed by the Board of Nominee and confirmed by the Tribunal are without jurisdiction. It has further been contended that the judgment and award which has been passed on the ground of compromise made by the advocate is against the interest of the applicant and as such no decree could have been passed by the Board of Nominee.
It has further been contended that the judgment and award which has been passed on the ground of compromise made by the advocate is against the interest of the applicant and as such no decree could have been passed by the Board of Nominee. It has next been contended that the applicant is not a member of the Co-operative Society and therefore the Board of Nominee has no jurisdiction to decide the matter. All these questions are to be decided by the Court when the Special Civil Application is taken up for final hearing. Presently I am only concerned with the Civil Application in which prayer has been made for quashing and setting aside of the execution proceedings and for stay of the execution proceedings. So far as the first prayer is concerned, it is wholly misconceived, for the reason that the award and judgment has not been set aside by this Court so far. The second prayer for grant of interim relief also cannot be accepted. It is a case of money decree. Though the provisions of CPC are not strictly applicable to the proceedings under Art. 226/227 of the constitution of India, the principle analogous to that can conveniently be made applicable to these proceedings. In the matter of grant of interim relief of the nature of staying execution of decree is to be considered with reference to the provisions as contained in order 39 of the Code of Civil Procedure, 1908. ( 4 ) THIS matter pertains to the claim of a bank who is dealing with peoples money. In case the money decree which has been obtained by the bank is not executed, it may adversely affect many of the customers of the bank. Banks money has to be rotated and if some customer withholds the money then the banks functioning and consequently its customers may be put to innumerable sufferings. Otherwise also while dealing with the question of grant of interim relief of this nature the Court has to keep in mind three principles, firstly, the applicant has prima facie case in his favour; secondly in case interim relief as prayed for is not granted to the petitioner, it will result in irreparable injury or loss to him, which cannot be compensated in terms of money, and thirdly the balance of convenience favours grant of interim relief in favour of the petitioner.
A party is not entitled to order of interim relief as a matter of right or course. Grant of interim relief is within the discretion of the Court, and such discretion has to be exercised in favour of the party praying for interim relief only if it is proved to the satisfaction of the court that unless the other side is restrained by an order of injunction, irreparable loss or damage will be caused to the petitioner during the pendency of the proceedings. The purpose of temporary injunction is thus to maintain status quo. The Court grants such interim relief according to legal principles, i. e. , ex debito justitise. Before any such order is passed the Court may be satisfied that strong prima facie case has been made out by the petitioner, and balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Power to grant interim reliefs is extraordinary power vested in the court and as such while exercising the same the Court has to take into consideration the facts and circumstances of each case. In the present case though the petition has been admitted, prima facie it may be taken that the Court finds it to be a case where the opposite party has to be called upon to file reply. It may be taken to be a case where the applicant has raised some arguable point, but that alone may-not justify grant of relief of the nature as prayed for by the applicant in the Civil Application. The applicant has to prove to the satisfaction of this Court that unless interim relief is granted irreparable loss or damage would-be caused to him during the pendency of these proceedings, and further that balance of convenience also tilts in his favour. ( 5 ) SPECIAL Civil Application has been filed by the applicant in the year 1993 and the petition has been filed against the judgment and award. But he has not pressed for the interim relief as prayed therein. This application for interim relief has been filed after about 4 years of filing of Special Civil Application. This is a case of money of the bank, peoples money and in case the interim relief of the nature as prayed for is declined, I fail to see how it will cause any irreparable damage or injury to the applicant.
This application for interim relief has been filed after about 4 years of filing of Special Civil Application. This is a case of money of the bank, peoples money and in case the interim relief of the nature as prayed for is declined, I fail to see how it will cause any irreparable damage or injury to the applicant. Even the applicant has not stated in the Civil Application that in case interim relief is not granted it will result in causing irreparable injury or damage to it. It is stated that balance of convenience is also warrants grant of interim relief in favour of the petitioner. It is a case where the applicant has to make payment of the amount as decreed against him. If ultimately he succeeds in the Special Civil Application then certainly this Court can pass order for restoration of the amount paid by it in execution of the award and judgment together with the interest thereon. So it cannot be said that the applicant will suffer any irreparable injury or damage which cannot be compensated in terms of money in case of denial of interim relief to it. At the most it can be taken that the petitioner has to part with the money and consequent thereupon would have been deprived of some benefits thereof and normally that is the interest, but that can be taken care of while deciding the matter finally in case he succeeds in the petition. In money suits, normally this Court does not grant interim relief of the nature staying execution of the decree passed. Balance of convenience lies in favour for the Bank, as otherwise it may be in difficulty in iff banking business. There are hundreds of customers and this money has to be rotated amongst those persons. Moreover, decree has been passed on the basis of compromise, though it is a different matter that the petitioner is disowning the same. But it is a fact that has been confirmed by the Tribunal also. The decree being a money decree, it cannot be said to be an exceptional case where this court has to exercise extraordinary power to grant interim relief. This Civil Application is wholly misconceived and the same is dismissed. Notice discharged. Interim relief granted by this Court stands vacated. .