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2005 DIGILAW 30 (GUJ)

VANDANABEN RASIK DAGLI v. ROYAL CO OP BANK LTD

2005-01-18

J.N.PATEL

body2005
JAYANT PATEL, J. ( 1 ) WITH the consent of the learned Counsel appearing for both the sides, MCA No. 1419/2004 and CA No. 9488/2004 are simultaneously considered finally with SCA No. 2002/2004. ( 2 ) FOR the sake of convenience, the original petitioners who are also the applicants shall be referred to as the petitioners and the Opponents who are respondents in the main SCA, shall be referred to as the respondents. It appears that the respondent Bank preferred lavad suit No. 2085/2002 before the Registrars Board of Nominee in which ultimately the award was passed against the petitioners herein. It appears that the original petitioners carried the matter before the Gujarat State Coop. Tribunal being Appeal No. 1231/2002 and in the proceedings of the appeal the settlement purshis was submitted by tendering the amount of Rs. 4,50,000/= as full and final settlement and the learned Tribunal in the appeal as per its decision dated 26. 8. 2003 recorded the settlement and disposed of the appeal. There is no dispute on the point that the amount of Rs. 4,50,000/= in pursuance of the settlement is paid by the original petitioners to the respondent Bank, but it is grievance of the respondent Bank that there was no proper calculation and the Bank had to recover the additional amount i. e. over and above Rs. 4,50,000/=. It appears that the respondent Bank also preferred Review Application being No. 46/2003 before the Gujarat State Coop. Tribunal in Appeal No. 1231/2002 for Review of the order dated 26. 8. 2003 passed by the Tribunal in appeal. Pending the said review application the respondent Bank initiated the proceedings under the "securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002" (hereinafter referred to as "the Securitisation Act") and the petitioners challenged the said action of respondent Bank under the Securitisation Act by preferring SCA No. 2002/2004. In the SCA, initially, while issuing notice the ad-interim relief was granted staying the proceedings under the Securitisation Act. Thereafter, it appears that on 22. 7. In the SCA, initially, while issuing notice the ad-interim relief was granted staying the proceedings under the Securitisation Act. Thereafter, it appears that on 22. 7. 2004, the learned Counsel appearing for the petitioners sought permission to withdraw the petition with a view to approach before the respondent Bank by suggesting some viable proposal and it was also submitted on behalf of the respondent Bank that if such proposal is made the same shall be considered by the Bank in accordance with law and the petition was allowed to be withdrawn. ( 3 ) IT appears that thereafter MCA No. 1419/2004 has been preferred by the original petitioners for recalling of the order dated 5. 8. 2004 passed in SCA No. 2002/2004 and for restoration of SCA No. 2002/2004 on merits. The contention in the MCA for recalling of the order is that there were no instruction with the learned Advocate for withdrawal of the petitions, but by mistake and by bonafide belief in continuing the negotiation of settlement the main SCA was withdrawn and, therefore, the prayer is made to recall the order dated 5. 8. 2004 and to press the main SCA. It has also been stated in the review application that efforts were made to settle, but the same has also not materialised. It further appears that pending the aforesaid MCA No. 1419/2004 the learned Tribunal dismissed the review application preferred by the respondent Bank as per its decision dated 20. 11. 2004 and, therefore, original petitioners preferred CA No. 9488/2004 in MCA No. 1419/2004 in SCA No. 2002/2004 for declaring that the right of the Opponent Bank has become unenforceable and the respondent Bank be restrained from enforcing the notice under the Securitisation Act, issued under Section 13 of the said Act. ( 4 ) THERE is no dispute on the point that the order passed by the Tribunal dismissing the review application preferred by the respondent Bank was carried by the respondent Bank by preferring SCA No. 16744/2004 before this Court and the said SCA has been withdrawn on 30. 12. 2004 by the respondent Bank who was petitioner therein and consequently the order passed by the Tribunal in appeal has become final and the order rejecting the review application is also not carried further by withdrawal of the aforesaid SCA by respondent Bank. 12. 2004 by the respondent Bank who was petitioner therein and consequently the order passed by the Tribunal in appeal has become final and the order rejecting the review application is also not carried further by withdrawal of the aforesaid SCA by respondent Bank. ( 5 ) IN normal circumstances, once the petition is withdrawn by the learned Advocate appearing for the parties, the Court may not entertain the prayer for recalling of the order merely on the ground of want of authority. However, it appears that in view of the subsequent development namely that the review application preferred before the Tribunal for reviewing of the order passed in the appeal is dismissed and is not disturbed by this Court in the subsequent petition. I find that the respondent Bank should not be allowed to resort to the proceedings under Securitisation Act with a view to nullify the effect of the binding decision of the Gujarat State Coop. Tribunal in appeal and also incidently the order in review application. In case of "apex Electricals Ltd. and Ors. v. ICICI Bank Ltd. and Ors. ", this Court in its decision reported in 2003 (2) GLR, 1785 at para 65. 4 has observed as under:"65. 4 the secured creditors under the present Act can resort to simultaneous remedies provided under any other law for the time-being in force and also under the present Act, but such remedies under the present Act cannot be read as nullifying the effect of binding judgement of a competent forum on facts qua such secured assets or quantification of outstanding amount or liability therefrom, and simultaneously resorting to the remedies under the present Act in addition to the remedies under any other law for the time-being in force qua secured assets should not result into frustrating the basic principles of justice and good conscience and rule of law as per the observations made in earlier paragraphs. " ( 6 ) THE observations referred to in earlier paragraphs can be traced at para 54 of the said decision. Therefore, if the aforesaid observations are considered it appears that the attempt on the part of the respondent Bank by resorting to the proceedings under Securitisation Act if allowed to continue would result into nullifying the binding effect of the decision of the Tribunal in appeal, whereby the settlement is recorded and the payment is accordingly made. Therefore, if the aforesaid observations are considered it appears that the attempt on the part of the respondent Bank by resorting to the proceedings under Securitisation Act if allowed to continue would result into nullifying the binding effect of the decision of the Tribunal in appeal, whereby the settlement is recorded and the payment is accordingly made. Further, both the parties namely the petitioners as well as the respondent Bank have acted upon the said settlements and also upon the decision of the Tribunal in appeal in as much as the petitioners have made payment of Rs. 4,50,000/= as full and final settlement and respondent has accepted the amount. Not only that the review application preferred on the ground, inter alia, that there was mistake, misrepresentation etc. , is dismissed and the order passed in review for rejecting review application is not upset by this Court and rather the Bank has abandoned the challenge by withdrawal of the petition. Under these circumstances, as the challenge to the proceedings under the Securitisation Act is covered by the above referred decision of this Court in case of Apex Electricals Ltd. (Supra), I find that it would be just and proper to recall the order dated 22. 7. 2004 passed in SCA No. 2002/2004 and to allow the MCA No. 1419/2004. Hence, the MCA shall stand allowed accordingly. ( 7 ) AS observed earlier, simultaneously the main SCA itself is finally heard and in view of the reasons recorded hereinabove the proceedings under the Securitisation Act initiated by the respondent Bank is running counter to the decision rendered by this Court in the case of "apex Electricals Ltd. and Ors. v I. C. I. C. I Bank Ltd. and Ors. " (supra), the petition deserves to be allowed by declaring that the respondent Bank shall not be entitled to resort to the proceedings under the Securitisation Act in respect to its outstanding dues, which was subject matter of Summary Suit No. 2085/2002 and appeal No. 1231/2002 since the said matter is finalised as per the decision of the Tribunal. " (supra), the petition deserves to be allowed by declaring that the respondent Bank shall not be entitled to resort to the proceedings under the Securitisation Act in respect to its outstanding dues, which was subject matter of Summary Suit No. 2085/2002 and appeal No. 1231/2002 since the said matter is finalised as per the decision of the Tribunal. However, it is clarified that in the event if the decision of the Tribunal in Appeal No. 1231/2002 is upset by any process known to law, it would be open to respondent Bank to take steps in accordance with law, keeping in view the observations made by this Court in case of Apex Electrical Limited (supra ). ( 8 ) THE petitions shall stand partly allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs. Rule made absolute accordingly. ( 9 ) IN view of the order passed hereinabove, CA No. 9488/2004 in MCA No. 1419/2004 in SCA No. 2002/2004 shall not survive and the rights of the parties shall stand governed accordingly. Office to keep the order in the concerned proceedings. .