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2002 DIGILAW 693 (GUJ)

UNITED COMMERCIAL BANK v. AMBICA BUS CORPORATION

2002-09-11

RAVI R.TRIPATHI

body2002
RAVI R. TRIPATHI, J. ( 1 ) ). THE present First Appeal is filed being aggrieved of the judgement and order dated 10/03/1981 passed by the learned Civil Judge (S. D.), Nadiad in Special Civil Suit No. 59 of 1977, abating the suit filed by the plaintiff, appellant herein. ( 2 ) ). THE appellant, plaintiff-Bank filed Special Civil Suit No. 59 of 1977 for recovery of unpaid amount of loan, which was advanced by the appellant-Bank to the respondent-defendant for purchase of a taxi. The person to whom the loan was advanced died and, therefore, his heirs, along with respondent no. 1 as respondent nos. 2 to 5 and the guarantor i. e. respondent no. 6 (defendant no. 6) were sued. ( 3 ) ). ON a close scrutiny of the judgement impugned in the present First Appeal, it is found that the learned Judge has focussed his attention only to the aspect that in view of the provisions of the Gujarat Public Moneys (Recovery of Dues) Act, 1979 (hereinafter referred to as "the Act" for short) the suit of the bank has abated. The learned Judge, by appreciating the provisions of Sections 2, 3 and 7 of the Act, has come to the conclusion that the suit has abated. The learned Judge has referred to the provisions of Section 2 (d) with special attention at Clauses 6 and 7 of the Act. The said provisions are reproduced in the impugned judgement. Section 2 (d) deals with the definition of the word, "financial assistance", Clause (6) provides for the "purpose of carrying out any State sponsored scheme", and Clause 7 provides for "any other prescribed purpose". The learned Judge did not appreciate the words, "state sponsored scheme", held that the transaction in question falls within the ambit of the Act and came to the conclusion that the suit is abated. The defendant had never placed any material on the record of the case to show that the transaction was under any "state sponsored scheme". In absence of any material to show that the transaction was under any "state sponsored scheme", the conclusion drawn by the learned Judge that the transaction was under "state sponsored scheme" is erroneous and is required to be quashed and set aside by this Court. ( 4 ) ). THE scheme and the object of the Act are self explanatory. In absence of any material to show that the transaction was under any "state sponsored scheme", the conclusion drawn by the learned Judge that the transaction was under "state sponsored scheme" is erroneous and is required to be quashed and set aside by this Court. ( 4 ) ). THE scheme and the object of the Act are self explanatory. The Act was brought on the statute book for the purpose of providing speedy recovery of certain classes of dues payable to the State Government, State Financial Corporation and other Corporations owned or controlled by the State Government, Government Companies and Nationalised and other Banks (emphasis supplied ). In the present case, it is neither in dispute nor it can be in dispute that the plaintiff-Bank is a Bank and that being so, the only aspect, which was required to be considered, was as to whether the loan advanced by the Bank (plaintiff) to the defendant was falling under the definition of the term "financial assistance". The term "financial assistance" is defined in Section 2 (d ). For our purpose, Clause (6) of Section 2 (d) is material. It provides that `for the purpose of carrying out any State sponsored scheme. Unless a "financial assistance" is extended by a Bank to carry out any "state sponsored scheme", the same cannot be considered to be within the purview of the Act. ( 5 ) ). IT is true that the Act is that of 1979 and that being so, at the time of filing of the suit, that is, in the year, 1977, neither the plaintiff nor the defendants had any reason to plead that the provisions of the Act are applicable to the facts of the case or not, but once that Act has come into force, it was obligatory on the part of the defendants to plead before the Court that the provisions of that Act are applicable and on application of the provisions of the Act, the suit cannot be proceeded with. ( 6 ) ). THE learned Advocate for the appellant, plaintiff-Bank, contended that the learned Judge has erred in holding that the transaction was falling within the definition of "financial assistance", as provided in Section 2 (d ). The learned Advocate made the Court to peruse the papers produced on record. ( 6 ) ). THE learned Advocate for the appellant, plaintiff-Bank, contended that the learned Judge has erred in holding that the transaction was falling within the definition of "financial assistance", as provided in Section 2 (d ). The learned Advocate made the Court to peruse the papers produced on record. There is no material which can help the Court to reach to the conclusion that the transaction falls within the ambit/purview of the Act. That being so, the finding recorded by the learned Judge that the transaction falls within the definition of "financial assistance", as provided in Section 2 (d), is without any basis and cannot be upheld. ( 7 ) ). FOR the foregoing reasons, the present appeal is allowed. The judgement and order dated 10/03/1981 passed by the learned Civil Judge (S. D.), Nadiad in Special Civil Suit No. 59 of 1977 is hereby quashed and set aside. The suit is to proceed further on the basis that the transaction in question does not fall within the ambit of the Act. The suit being of the year 1977, it will be in the fitness of things to direct the trial Court to take up the matter for hearing on top priority and dispose of the same as expeditiously as possible, but not later than six months from the date of receipt of the order of this Court. .