CAV JUDGMENT J.B.PARDIWALA 1. As common questions of fact and law are involved in both the above captioned appeals, the same are heard together and are being disposed of by this common judgment and order. 2. These appeals arise from a common judgment and order dated 21.01.2010 passed by the learned Single Judge in Special Civil Application No.1300 of 2004 with Special Civil Application No.1301 of 2004 whereby, the learned Single Judge quashed and set aside the order passed by the learned Board of Nominees and the order passed by the Tribunal confirming the order passed by the learned Board of Nominees including the modification made by the Tribunal in the order passed by the learned Board of Nominees and further restoring the Lavad Suits preferred by the appellants herein to the Board of Nominees. The learned Single Judge also directed the learned Board of Nominees to re-examine the matter in light of the observations made by the learned Single Judge in his judgment and order dated 21.01.2010 and directed the Board of Nominees to decide such suits after givingopportunity of hearing to both the sides. 3. Facts relevant for the purpose of deciding the appeals can be summarised as under:- 3.1. The appellants are distinct business legal entities and enterprises of Jayraj Group of Companies, being either a partnership firm or a Private Limited Company engaged in different activities such as buildingconstruction etc. The appellant Nos.8.1 to 8.2 are the partners/directors of the respective appellantpartnership firms or Private Limited Company. The appellants are the original respondents and the respondent-bank is the original petitioner of the two Special Civil Application Nos.1300 of 2004 and 1301 of 2004. 3.2. It appears that in the year 1997-98, Jayraj Group of Company availed of loan facility to the tune of Rs.12.46 crores from respondent No.1-Charotar Nagrik Sahakari Bank Limited. It appears that on or around 30.06.2001, the respondent-bank unilaterally adjusted the accounts of Jayraj Group by transfer entries showing release of Rs.17.48 crores and adjusting these monies towards repayment of the old outstandings, thereby closing the old accounts and simultaneously creating new accounts/outstandings. It appears that the case of the appellants is that no additional funds, apart from the original amount of Rs.12.46 crores, was disbursed to the Jayraj Group and the additional amounts were book-entries. 3.3. It appears that the case of the appellants is that no additional funds, apart from the original amount of Rs.12.46 crores, was disbursed to the Jayraj Group and the additional amounts were book-entries. 3.3. It also appears that the Reserve Bank of India issued directions under Section 35A of the BankingRegulation Act, 1949 on 20.12.2001 and an Administrator came to be appointed for the Bank on 01.01.2002. 3.4. The appellants preferred two Lavad Suits being Lavad Suit No.1268 of 2002 and Lavad Suit No.1269 of 2002. It is necessary to state here at this stage that Letters Patent Appeal No.1608 of 2010 arises from the proceedings of Lavad Suit No.1268 of 2002 and Letters Patent Appeal No.1298 of 2010 arises from the proceedings of Lavad Suit No.1269 of 2002. The record reveals that the appellants, in substance, sought inter alia, the following prayers in the Lavad Suits referred to above:- “(i) Direct that the Bank has been charging interest contrary to the Reserve Bank of India guidelines in this behalf; (ii) Direct that the action of the Bank in adjusting the repayment by the Jayraj Group towards interest, instead of against the principal, is illegal; (iii) Direct the refusal by the Bank to dispose of the property available with it a security or the refusal to permit the Jayraj Group to sell such property has caused monitory loss to the Jayraj Group; (iv) The bank should calculate 12% simple interest rather than 25%; (v) As the Bank has failed to act upon the request of the Jayraj Group to sell all the secured property for repayment of the loans, since January 2002, the Bank should not charge interest from January, 2002. (vi) Hold the Bank responsible for the erosion in the value of the secured property, for the failure of the Bank to accede to the request for selling of the same; (vii) Adjust the fixed deposit of friends and families of the Jayraj Group against is outstanding.” 3.5. The learned Board of Nominees disposed of the Lavad Suits by awards dated 28.07.2003. The learned Board of Nominees disposed of the Lavad Suits by awards dated 28.07.2003. The learned Board of Nominees held in substance as under:- “(i) the Jayraj Group to repay to the Bank the Loan taken in the year 1997-98, after adjusting the repayments already made, with 12% simple interest; (ii) this amount be repaid within 18 months; (iii) properties as security with the Bank to be proportionately released, as per the request of Jayraj Group against payment in terms of the order of the Learned Nominee; (iv) the deposits of the Jayraj Group and its customers with the Bank, alongwith the interest accrued thereof, as also the value of the linking shares be adjusted and properties of proportionate value as security with the Bank be released.” 3.6. The respondent No.1-Bank went into liquidation on 30.07.2003. 3.7. It appears that the respondent No.1-Bank challenged the awards of the learned Board of Nominees before the Gujarat State Co-operative Tribunal. The Tribunal partly allowed the two appeals filed by the respondent No.1-Bank by a common order dated 06.12.2003, by modifying the rate of interest from 12% to 15%. It also appears that the Tribunal extended the period for repayment by six months i.e. instead of 18 months to 24 months. The rest of the operative part of the award of the learned Board of Nominees in both the Lavad Cases was confirmed. We have noticed that the bank, in its written submissions filed before the Tribunal, admitted inter alia that; “(i) the Bank could not afford 12% simple interest from the beginning of the loan, i.e. 1997-98 but if the Jayraj Group was prepared to pay 15% interest the Bank would have no objection; (ii) the Bank was giving set off against fixed deposits to its other account holders and that Jayraj Group could be given benefit on the same lines. Significantly, the fact that the loans where from 1997-98 and not from 2000-01, was clearly acknowledged.” 3.8. The respondent No.1-Bank preferred Special Civil Application Nos.1300 of 2004 and 1301 of 2004 challenging the common order of the Tribunal dated 06.12.2003. We have also noticed that though the challenge was to the order of the Tribunal, the same was not joined as a party respondent in the proceedings. The Bank prayed for the following reliefs in the two Special Civil Applications:- “Reliefs in SCA 1300 of 2004:- 1. We have also noticed that though the challenge was to the order of the Tribunal, the same was not joined as a party respondent in the proceedings. The Bank prayed for the following reliefs in the two Special Civil Applications:- “Reliefs in SCA 1300 of 2004:- 1. Admitting and allowing the present petition. 2. Be pleased to declare that the impugned order of Learned State Cooperative Tribunal passed in Appeal No.1053 of 2003 dated 06.12.2003 and the judgment and award passed by Learned Board of Nominees in Lavad Suit No.1269/2002 on 28.07.2003 are in violation of section 21A of the Banking Regulation Act, 1949, directions given by Reserve Bank of India under section 35A of Banking Regulation Act, 1949 dated 20.12.2001 to the Petitioner Bank, directions and guidelines under One Time Settlement Scheme of the Reserve Bank of India dated 31.10.2001 and the direction dated 31.7.2003 followed by the direction of Government of Gujarat dated 16.08.2003 as regards giving set off/adjustment accepting deposits as against Non Performing Assets, violative of section 48 and 49 of Gujarat Cooperative Societies Act, 1961, suffers from jurisdictional errors, obtained by suppression of facts and suggestion of falsehood and is therefore erroneous, unlawful and illegal and therefore be further pleased to quash and set aside the same; 3. During the pendency and/or final disposal of the present petition be pleased to stay the operation, implementation and execution of the order of the Learned State Cooperative Tribunal dated 06.12.2003 passed in Appeal No.1053 of 2003; 4. During the pendency and/or final disposal of the present petition be pleased to direct the Respondents to make payment of the outstanding amount in the manner and as per the method as deemed fit by this Hon’ble Court in view of the agreement between the petitioner bank and the respondents; 5. To grant costs of this petition; 6. To grant such other and further orders as the nature and circumstances of case may require. Reliefs in SCA 1301 of 2004 1. Admitting and allowing the present petition. 2. To grant costs of this petition; 6. To grant such other and further orders as the nature and circumstances of case may require. Reliefs in SCA 1301 of 2004 1. Admitting and allowing the present petition. 2. Be pleased to declare that the impugned order of Learned State Cooperative Tribunal passed in Appeal No.1054 of 2003 dated 06.12.2003 and the judgment and award passed by Learned Board of Nominees in Lavad Suit No.1268/2002 on 28.7.2003 are in violation of section 21A of the Banking Regulation Act, 1949, directions given by Reserve Bank of India under section 35A of Banking Regulation act, 1949 dated 20.12.2001 to the Petitioner Bank, directions and guidelines under One Time Settlement Scheme of the Reserve Bank of India dated 31.10.2001 and the direction dated 31.7.2003 followed by the direction of Government of Gujarat dated 16.8.2003 as regards giving set off/adjustment accepting deposits as against Non Performing Assets, violative of section 48 and 49 of Gujarat Cooperative Societies Act, 1961, suffers from jurisdictional errors, obtained bysuppression of facts and suggestion of falsehood and is therefore erroneous, unlawful and illegal and therefore be further pleased to quash and set aside the same; 3. During the pendency and/or final disposal of the present petition be pleased to stay the operation, implementation and execution of the order of Learned State Cooperative Tribunal dated 6.12.2003 passed in Appeal No.1054 of 2003; 4. During the pendency and/or final disposal of the present petition be pleased to direct the Respondents to make payment of the outstanding amount in the manner and as per the method as deemed fit by this Hon’ble Court in view of the agreement between the petitioner bank and the respondents; 5. To grant costs of this petition; 6. To grant such other and further orders as the nature and circumstances of case may require.” 3.9. We have also noticed that in a cognate litigation filed by the appellants being Special Civil Application No.4672 of 2004, which was taken up alongwith Special Civil Application Nos.1300 of 2004 and 1301 of 2004, the learned Single Judge was pleased to pass the order on 07.05.2004 which reads as under:- “2. By way of an interim arrangement, both the parties hereto have agreed as under. In view of the same, the following order (with consent of parties) is passed without being adjudicating the matter on the merits of the matter. 1. By way of an interim arrangement, both the parties hereto have agreed as under. In view of the same, the following order (with consent of parties) is passed without being adjudicating the matter on the merits of the matter. 1. Both the parties hereto agree that by the immovable properties given as security mortgaged Respondents shall be sold and the amount realized thereof may be kept in “No Lien Account” with the Petitioner bank. 2. The said properties shall be sold either by the bank at the price agreed by the respondents, or the bank shall release the proportionate properties in favour of the respondents upon amount deposited by the respondents. Aforesaid sale proceedings and sale price therefore should be in consultation with Official Liquidator of Bank and respondent Jayraj Group. 3. The bank shall be entitled to appropriate sale proceeds so realized to the extent of liability as determined by Board of Nominee in Lavad Suit Nos.1268/02 and 1269/02 as modified by Gujarat State Cooperative Tribunal in Appeal Nos.1053/03 and 1054/03 and remaining amount of sale proceeds may be deposited in “No Lien Account” as mentioned in Clause 1 above. 4. The Petitioner bank agrees that no coercive action will be taken by the bank during pendency and final disposal of both these petitions. The bank further arrangements agreedagree that in view of this between the parties, the respondents are not liable to comply with the undertaking given in bail matter i.e. Cri.Misc. Application No.720/03 while obtaining bail and the bank agrees to co-operate for modification of conditions in bail order, if required. 5. The amount of Rs.50 lacs (Rupees Fifty lacs)deposited by the Respondents herein (Petitioners in Special C.A.No.4672 of 2004) with the Registry of this Court as per order of this Hon'ble Court shall be returned to the respondents herein in view of above arrangements. 6. The parties agree to extend their co-operations to each other so as to expedite realization process and to reduce burden. 7. The parties shall maintain status quo as regards all other directions given by Gujarat Co-op Tribunal in both the appeals. 8. The present arrangements are made without prejudice to all parties in all other proceedings. 3. The parties shall abide by above terms and conditions. Registry is directed to return back the amount of Rs.50 lacs (Rupees Fifty Lakhs) to Jayraj Builders. 8. The present arrangements are made without prejudice to all parties in all other proceedings. 3. The parties shall abide by above terms and conditions. Registry is directed to return back the amount of Rs.50 lacs (Rupees Fifty Lakhs) to Jayraj Builders. After the said amount is returned back, the Special Civil Application No.4672 of 2004 is accordingly disposed off with no order as to costs. Notice is discharged. Interim relief order shall stands vacated.” 3.10. It appears that the bank did not comply with the said order and secured properties were not released. 3.11. The learned Single Judge, by common judgment dated 21.01.2010, quashed and set aside the award of the learned Board of Nominees as also that of the Tribunal with a direction that the suits stand restored to the learned Board of Nominees, who shall re-examine the matter in the light of the observations made by the learned Single Judge in his judgment. The learned Single Judge appears to have essentially based his judgment on the following two issues:- “(i) The Learned Single Judge has noted that the bank itself had filed 5 suits against the Jayraj Group and that proper exercise of discretion demanded that all the suits should be tried by the Learned Nominee together. The Learned Single Judge, has proceeded to extensively refer to the 5 suits filed by the Bank, observed that since the said suit were pending, the documents filed in the said suit could not have been ignored by the learned Nominee, that normally such suits should tried together to avoid conflictingdecisions, that this was not only apparent error on the face of the record but could be said to be perverse exercise of discretion in trying the suits filed by the Jayraj Group but not considering the record of the 5 suits preferred by the Bank. (ii) The other issue considered by the Learned Single Judge is as to the charging of a particular rate of interest. (ii) The other issue considered by the Learned Single Judge is as to the charging of a particular rate of interest. The Learned Single Judge after once again reiterating the desirability of a common trial for the suits preferred by the Bank, so that all the material and documents produced therein, could have been considered by the Learned Nominee for the purpose of ruling on the question of chargeability of Interest, in terms of the documents, proceeded to observe that any commitment by the Bank to charge a particular rate of interest, after the loan transaction would not be relevant, nor the OTS Scheme would be relevant.” 4. We have noticed during the course of hearing of both the appeals that the main thrust of the submissions of the appellants was that the total loan advanced by the respondent No.1-Bank was Rs.12.46 crores, while the bank insisted that the amount of loan was Rs.17.48 crores. There was extensive discussion on the issue as regards the extent of the loan granted by the bank in favour of the appellants. 5. To be précise, it was vociferously submitted by the learned counsel for the appellants that; (i) the Board of Nominees has recorded a finding of fact based on the appreciation of documentary and oral evidence that no additional amount over Rs.12.46 crores had been advanced to the JayrajGroup and that the old loans had been converted into new loans by adjustment entries made unilaterally by the bank to artificially inflate its income for the purpose of supporting its claim for schedule Bank status; that this fact was evident since the old loan accounts were closed before the terms of the loans had expired; and that no documents regarding the purported new loans were produced by the Bank at all. (ii) The Bank has not raised any contention before the Tribunal in the course of its arguments that the aforesaid finding of fact was incorrect or not warranted and therefore such contention must be considered to have been given up by the Bank; (iii) Even after the order of the Tribunal, documents on record establish the fact that the Bank has not raised any dispute on the fact that the loans were as of 1997-98 only, which is evident from letter dated 5.10.2004 of Jayraj Group; letter dated 23.3.2007 of the Bank; report of the Chartered Accountant dated 4.5.2007 called for by the Bank; letter dated 28.8.2007 of the Bank to Jayraj Group stating that the proposal for OTS under the new scheme on the basis of the loans being of 1997-98 were forwarded to the High Level Committee; and correspondence between the parties in which no objection has been taken by the bank to the reference to the loans of being of 1997-98.” 6. Taking into consideration the above referred aspects, this Court thought fit to pass the order on 04.03.2011 which reads as under:- “In the present case, it appears that there is some ambiguity about the principal amount of loan taken by the appellants from the bank. It was agreed upon that the matter be looked into by a reputed Chartered Accountant, who may submit the report before the Court. In this background, we allow the Liquidator of the bank and the appellants to give a common panel of Chartered Accountants, who may appear and assist the Court. The Court may fix the terms and conditions and may ask the appellants to bear the costs.” 7. On 18.03.2011, this Court passed an order of appointment of Chartered Accountant and framed the terms of reference. The order dated 18.03.2011 reads as under:- “Taking into consideration the nature of the case and as suggested by counsel for the parties, it is directed to engage D.G.S.M. & Co. as Chartered Accountant to look into the following terms ofreference; 1. The principal amount of loan originally given as loan by Charotar Nagarik Sahakari Bank Ltd. By way of actual outflow of funds be calculated, excluding accounting/transfer fees. 2. The actual amount repaid by the appellant – Jayraj Group to the Bank. The same be calculated, excluding accounting/transfer fees. 3. as Chartered Accountant to look into the following terms ofreference; 1. The principal amount of loan originally given as loan by Charotar Nagarik Sahakari Bank Ltd. By way of actual outflow of funds be calculated, excluding accounting/transfer fees. 2. The actual amount repaid by the appellant – Jayraj Group to the Bank. The same be calculated, excluding accounting/transfer fees. 3. On the basis of the aforesaid calculation, find out the amount due as on 31st March, 2011 after taking into consideration the amount of repayment by working out separately as to what should be the amount if it is calculated: 1. @ 6% simple interest on the outstanding amount till 31st March, 2011, 2. @ 15% simple interest on the outstanding amount till 31st March, 2011 as per the interest granted by the Tribunal.” 8. We specifically made it clear that the principal amount, originally given as loan by the Bank by way of actual outflow of funds, be calculated, excluding accounting/transfer entries. The typographical error of ‘transfer fee’ was modified to ‘transfer entries’ by order of this Court dated 05.04.2011. 9. In the aforesaid background, the Chartered Accountant D.G.S.M. & Co. has filed its report dated 01.08.2011. The report concludes as follows:- “1. The total principal amount originally given as loan by bank is Rs.12,63,95,954/-. 2. The total amount repaid by the Jayraj Group to the Bank is Rs.13,81,30,833/-. 3. At 6% simple interest, the total interest payable by Jayraj Group to the Bank, as on 31.3.2011, is Rs.3,56,95,294/-. Considering the aggregate repayment made and loan granted plus the calculated interest (Rs.13,81,30,833/- minus Rs.12,63,95,954/- plus3,56,95,294/-) the net payable is Rs.2,55,40,441/-. 4. At 15% simple interest, the total interest payable by Jayraj Group to the Bank, as on 31.3.2011, is Rs.8,92,38,237/-. Considering the aggregate repayment made and loan granted plus the calculated interest (Rs.13,81,30,833/- minus Rs.12,63,95,954/- plus8,92,38,237/-) the net payable is Rs.7,90,83,384/-.” 10. The Bank has objected to the report of the Chartered Accountant on the grounds that; i. The Chartered Account has travelled beyond the scope of reference; ii. The Chartered Accountant has ignored the judgment of the Learned Single Judge rendered in SCA Nos.1300 of 2004 and 1301 of 2004; iii. The Chartered Accountant has ignored that the Bank had granted new loans in 2000-2001 by closing old loan accounts of 1997; iv. The Chartered Accountant has ignored the judgment of the Learned Single Judge rendered in SCA Nos.1300 of 2004 and 1301 of 2004; iii. The Chartered Accountant has ignored that the Bank had granted new loans in 2000-2001 by closing old loan accounts of 1997; iv. The loans were availed at 22% interest; v. New loans were granted at 19% interest which were credited to the accounts of the Jayraj Group, were from the earlier loans were repaid and loans of 199798 where closed; vi. Fresh mortgage deed were entered into in 2001; vii. Fresh agreements and promissory notes were executed in 2001; viii. Jayraj Multimedia Ltd. and Hindustan Earth Movers Pvt.Ltd. were not granted loans in 1997-98 but in 2000-2001; ix. The payment has wrongly adjusted towards principal rather than interest. 11. We have heard learned senior counsel Mr.Mihir Joshi for the appellants appearing on behalf of Singhi and Company, learned A.G.P. Ms.Krina Calla for respondent No.2 and learned senior advocate Mr.Sunit Shah with learned advocate Mr.Dipan Desai for respondent No.1. 12. Before we record the rival contentions of the respective parties, it is necessary for us to deal with a preliminary objection raised by learned senior advocate Mr.Sunit Shah appearing for the Bank. The preliminary objection is with regard to the maintainability of the present appeals under Clause 15 of the Letters Patent. Learned counsel vehemently submitted that the appeals are not maintainable under Clause 15 of the Letters Patent, as the petitions before the learned Single Judge were under Article 227 of the Constitution. The main bone of contention of the learned counsel is that the two writ petitions cannot be treated as petitions under Article 226 of the Constitution, as in the main writ petitions, the learned Board of Nominees as well as the Tribunal were not the party respondents. He submitted that in a petition for relief under Article 226 of the Constitution, the Tribunal, whose order is impugned in the petition, must be made a party to the petition so that the writ sought from the Court can go against the Tribunal, but if the petition is for relief under Article 227 of the Constitution, it is well settled that the Tribunal, whose order is impugned in the petition, need not be made a party to the petition. He submitted that the reason is that by entertaining a petition under Article 227, the High Court does not seek to exercise the jurisdiction to issue any high prerogative writ, the writ jurisdiction which the High Court exercises under Article 227 is of superintendence - a jurisdiction somewhat analogous to the revisional jurisdiction which the High Courts have under diverse statutes. He submitted that as the learned Board of Nominees and the Tribunal were not joined as party respondents in the writ petitions, the petitions were in substance under Article 227 of the Constitution and, therefore, the Letters Patent Appeals would not be maintainable. 13. To fortify this contention, learned counsel has relied upon the recent pronouncement by the Full Bench of this High Court rendered in the case of Bhagyodaya Cooperative Bank Limited V/s. Natvarlal K. Patel & others rendered in Special Civil Application No.12382 of 2010 and Special Civil Application No.15308 of 2010. Learned counsel relied on paragraphs 14 and 15 of the said Full Bench judgment, which read as under:- “14. Recently, the aforesaid issue fell for consideration before the Division Bench of this Court in Gustadji D Buhariwala vs. Nevil BBuhariwala reported in 2011 (2) GLH 147. In the said case, the Division Bench referred to different decisions of this Court, other High Courts and the Supreme Court and held as follows :- “54. What can be deduced as explained by the Supreme Court in Shalini's case (supra) that a writ petition is a remedy in public law which may be filed by a person, but the main should be the government, governmental respondent or a State or agency instrumentality of the State within the meaning of Article 12 of the Constitution. Private individuals cannot be equated with the State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with the State can be respondents in the writ petition. Private individuals cannot be equated with the State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with the State can be respondents in the writ petition. It is a settled principle of law that in a petition for relief under Article 226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the court can go against the Court/Tribunal, but if the petition is for relief under Article 227 of the Constitution, it is well settled that the Court / Tribunal whose order impugned in a petition need not be a party in the writ petition, the reason being by entertaining the petition under Article 227 of the Constitution the High Court exercises its power of superintendence, which is analogous to the revisional jurisdiction.” 15. From the aforesaid decisions rendered by this Court and the Supreme Court, as referred to above, we hold as follows :- (i) In a petition for relief under Article 226 of Constitution of India against any judgment or award passed by the Industrial Tribunal or Labour Court, such Industrial Tribunal or Labour Court is a necessary party. In absence of such necessary party, no rule and writ can be issued under Article 226 against such Industrial Tribunal or the Labour Court, and (ii) But if a petition for relief is filed under Article 227 of the Constitution of India, the Court or the Tribunal whose order is impugned in the petition, is not a necessary party to such petition under Article 227 of the Constitution of India. The High Court can exercise the power under Article 227 even in absence of such Court or the Tribunal.” 14. We do not find any force in the preliminary objection raised by the learned counsel for the respondent-Bank as regards maintainability of the two appeals. It is evident from the cause-title of the writ petitions that the Bank invoked Articles 226 and 227 of the Constitution and further also prayed for a writ of mandamus and/or writ of certiorari and/or writ in the nature of mandamus and/or certiorari or any other appropriate writ order of direction for the purpose of quashing and setting aside the order passed by the Gujarat State Co-operative Tribunal. It is true, as now, made clear by the Full Bench of this High Court that in a petition for relief under Article 226 of the Constitution, the Court/Tribunal, whose order is impugned in the petition, must be made a party to the petition so that the writ sought from the Court can go against the Tribunal that if the petition is for relief under Article 227 of the Constitution, it is well settled that the Court/Tribunal, whose order impugned in a petition, need not be made a party to the writ petition. We will have to examine the true character and nature of the order passed by the learned Single Judge, more particularly, the final order for the purpose of deciding the preliminary objection. Paragraph 17 of the judgment and order passed by the learned Single Judge dated 21.01.2010 is important. Paragraph 17 reads as under:- “In view of the aforesaid, the impugned order passed by the learned Nominee in both the suits and the confirmation thereof by the Tribunal and even the modification made by the Tribunal based on the same reasoning slightly on the different ground, cannot be sustained in the eye of law, therefore, deserves to be quashed and set aside. Hence, quashed and set aside with the direction that the suit shall stand restored to the learned Nominee. The learned Nominee shall reexamine the matter in light of the observations made by this Court in the present judgement and shall decide such suits, after giving opportunity of hearing to both the sides.” 15. Paragraph 17 can be dissected in three parts (i) the learned Single Judge quashed and set aside the order passed by the learned Board of Nominees in both the suits and confirmed by the Tribunal; (ii) the learned Single Judge further directed that the suit shall stand restored to the learned Board of Nominees. So far as these two reliefs are concerned, in our opinion, they can be said to have been granted in exercise of supervisory jurisdiction under Article 227 of the Constitution. 16. So far as these two reliefs are concerned, in our opinion, they can be said to have been granted in exercise of supervisory jurisdiction under Article 227 of the Constitution. 16. However, there is a third part of the relief which, in our opinion, is in exercise of Article 226 of the Constitution as a writ can be said to have been issued by directing the learned Board of Nominees to re-examine the matter in light of the observations made by the learned Single Judge in the judgment and then decide the suits after giving opportunity of hearing to both the sides. The third part reads as under:- “The learned Nominee shall re-examine the matter in light of the observations made by this Court in the present judgement and shall decide such suits, aftergiving opportunity of hearing to both the sides.” 17. We are of the view that when a petition is filed before the Single Judge invoking Article 227 of the Constitution and a decision is rendered in favour of the petitioner, it is open to the respondent to demonstrate before the Division Bench in Appeal that the nature of the controversy, averments contained in the petition, reliefs sought and the principle character of the order of the learned Single Judge would support the maintainability of the appeal on the ground that the facts justify the invocation of both Articles 226 and 227 of the Constitution. Whether that is so, will be determined by the Appellate Bench on the circumstances of each case. 18. We, therefore, reject the preliminary contention raised by the learned counsel as regards maintainability of the appeals under Clause 15 of the Letters Patent. 19. We shall now proceed to consider as to whether the judgment and order of the learned Single Judge warrants any interference or not. 20. Learned counsel for the appellant would submit as under:- “(i) The learned Single Judge has failed to appreciate that while the two suits filed by the Jayraj Group were before the Learned Nominee, at Vadodara, the five suits filed by the Bank were not before the Learned Nominee, at Vadodara but were pending before the Learned Nominee, at Anand. This being so, all the suits, those filed by the Jayraj Group and those filed by the Bank, could not have been tried together, unless an application to that effect was filed by any parties and allowed. This being so, all the suits, those filed by the Jayraj Group and those filed by the Bank, could not have been tried together, unless an application to that effect was filed by any parties and allowed. No such application was at all moved. The Learned Nominee, Vadodara had no authority or jurisdiction to call to itself the five suits filed by the Bank which were pending before the Learned Nominee, Anand, for a common trial. The entire basis therefore, of the judgment of the Learned Single Judge, is misconceived. (ii) On the interest front too, the Learned Single Judge has ignored the material on record. The Learned Nominee has recorded a finding of fact that there was no agreement between the parties as to the rate of interest being 22% as claimed by the Bank; that accounting entries regarding interest and repayment thereof were made unilaterally by the Bank to show inflated income; that the witness of the Bank did not confirm whether documents regarding rate of interest had been signed by the borrower; that the Bank had not produced original documents on the record of the suits filed by the Jayraj Group to prove their case despite notice in this behalf being issued by the Jayraj Group; that the Bank had admitted that interest was debited in a lump sum after the filing of the suit and not in accordance with Reserve Bank of India guidelines; and that 12% interest in accordance with the One Time Settlement Scheme as claimed by the Jayraj Group was reasonable in the facts of the case particularly since the Administrator of the Bank discharging functions of the Managing Committee, had accepted this proposal of the Jayraj Group and forwarded the same to the Registrar by his letter of 13.11.2002. (iii) The Tribunal has not disturbed the findings of fact recorded by the Board of Nominees regarding the Bank being unable to prove the contractual rate of interest, but held that in absence of a finding that the OTS Scheme was applicable to the facts of the case, the rate of 12% could not be sustained but that in view of the letter of the Bank dated 21.6.2001 accepting the rate of 15% in respect of the borrowings of Jayraj Group and correspondence by the Administrator and Liquidator accepting and forwarding proposals for repayment of outstanding amount with 12% interest, the rate should be substituted from 12% to 15%. (iv) In the written submissions of the Bank before the Tribunal, it has been conceded/accepted by the Bank that it had been agreed to levy 12% interest from 1.4.1998; that, had the Nominee directed interest at 15% as per the letter of 21.6.2001 there would have been no occasion for the Bank to challenge the order of the Nominee before the Tribunal; and that the Bank had no objection if order was passed for payment of the outstanding from 1997-98 at the rate of 15%.” 21. Learned counsel for the respondent-Bank made following submissions:- “1. That the order dated 04.03.2011 passed in the present proceedings by this Hon’ble Court clearly states that the appointment of the Chartered Accountant was to assist the Court and hence the submission of the appellants that the CA’s report is binding is baseless and misconceived. The above order of the Hon’ble Court cannot be read and construed so as to treat the report of the CA as final and binding. Moreover, the appointment of the CA is with regard to the principal amount of loan taken by the appellants from the bank. 2. The order only directs the CA to look into the reference and not adjudicate the issues and the adjudication process is to be undertaken by the Hon’ble Court and therefore, the bank is entitled to make submissions opposing the report of the CA and the said report may not be taken as final and binding. 3. Moreover, the above order speaks of computing interest @ 6% and 15% p.a. The above computation cannot be construed as bank having agreed either for 6% interest or 15% interest. 3. Moreover, the above order speaks of computing interest @ 6% and 15% p.a. The above computation cannot be construed as bank having agreed either for 6% interest or 15% interest. The bank understands that 6% interest was directed to be computed to find out what would be the amount due in case OTS application is accepted and 15% interest was directed to be computed to find the amount due as per the say of the appellants. There is no consent whatsoever of the bank agreeing for simple rate of interest. 4. The fact that direction was issued to compute the interest @ 6% or 15% indicates that there is no express agreement or even implied consent. 5. Moreover, in view of the provisions of section 21A of the Banking Regulation Act, the Hon’ble Court may not be able to reduce the rate of interest once charged by the bank pursuant to a binding contract between parties. 6. The Hon’ble Supreme Court in the case reported in 1999(2) SCC 375 has held that rate of interest is a matter of contract between the parties and the bank would be entitled to charge the contractual rate of interest and the said contract cannot be interfered by the Court. 7. It would not be correct to say that the bank has agreed to abide by the report of the chartered accountant and that the same is binding. 8. The Chartered Accountant has absolutely ignored the fact that on 30.06.2001, new loans were granted to the tune of Rs.17.48 Crores to the Jayraj Group of Companies at the rate of 19% interest. 9. The respondent Bank has produced documentary evidence to show that for the said new loans fresh mortgage deeds were entered and properties were mortgage with the Bank and the said mortgage deed also came to be registered with the office of the Sub-Registrar. The Bank has also produced documents showing fresh agreements and promissory notes signed by the Directors and Managers of Jayraj Group of Companies. The Bank has also produced documents showing fresh agreements and promissory notes signed by the Directors and Managers of Jayraj Group of Companies. The Bank has also produced documents to show that the amount of new loans has been deposited in the current account of the Jayraj Group of Companies by the Bank and the said amount has been withdrawn by the Jayraj Group of Companies by way of issuing cheques and thereby the amount of the said loan has been withdrawn by the Jayraj Group of Companies. 10. It is submitted that the Jayraj Group of Companies has vide its various letters admitted the grant of new loans. For example vide letter dated 07.10.2002, the Jayraj Group of Companies had sought for details and documents regarding the various loan accounts of the Jayraj Group of Companies and in the has said list, the Jayraj Group of Companies Jayrajmentioned two loan accounts viz. the Multimedia Limited and Hindustan Earth Movers Private Limited and the said fact clearly substantiates that new loans have been granted as the aforesaid two companies were never granted any loans in the year 1997-98. 11. The Jayraj Group of Companies has vide letter dated 09.02.2002 admitted the grant of new loans by the bank and has clearly admitted that fresh mortgage deeds have been entered into. As against that, the case of the Jayraj Group of Companies before this Hon’ble Court is that the respondent Bank has unilaterally issued fresh loans and the said amount has been unilaterally deposited in the old loan accounts of the Jayraj Group of Companies by showing the repayment of old loans. Therefore, there is clear inconsistency in the statements of the appellants and clear contradictions in its stand. 12. The Chartered Accountant has completely ignored the aforesaid facts and documents, though produced before him and has arrived at a conclusion, which is perverse to say the least. 13. It is submitted that the Chartered Accountant has travelled beyond the scope of the reference in as much as old loan accounts of the year 1997-98, which have been closed, could not have been reopened and there was no order of reopening of said closed accounts. 14. 13. It is submitted that the Chartered Accountant has travelled beyond the scope of the reference in as much as old loan accounts of the year 1997-98, which have been closed, could not have been reopened and there was no order of reopening of said closed accounts. 14. As regards the contention that the respondent Bank having agreed for appointment of Chartered Accountant, cannot be permitted to object to the report of the Chartered Accountant, it is submitted that the Chartered Accountant was directed to submit its report considering the record produced by either parties, however, the Hon’ble Court never stated that whatever report that may be submitted by the Chartered Accountant was to be accepted by any of the parties. The same could not have been and was not the intention of the Hon’ble Court as even an award of Arbitrator can be subject matter of challenge by aggrieved party and therefore, the said contention is misconceived. More particularly, when the Chartered Accountant has submitted the report which is absolutely contrary to the record and ignoring the vital aspects of the matter.” 22. Having heard learned counsel for the respective parties and having considered the rival contentions, we are of the view that the learned Single Judge ought not to have disturbed the findings recorded by the learned Board of Nominees and confirmed by the Appellate Tribunal with slight modifications. We have noticed that the learned Board of Nominees has recorded the finding of fact based on the appreciation of the documentary and oral evidence that no additional amount over and above Rs.12.46 crores had been advanced to the appellants and that the old loans had been converted into the new loans by adjustment entries made unilaterally by the bank to artificially inflate its income for the purpose of supporting its claim for Scheduled Bank status. We have also noticed that the bank did not raise any contention before the Tribunal in the course of its arguments that finding of fact was incorrect and not warranted. On the contrary, it appears that the respondent-bank conceded/accepted that the bank will not be able to afford 12% simple interest from the starting of the loan i.e. 1997-98, but if the appellants are ready and willing to pay 15%, the Bank would have no objection. On the contrary, it appears that the respondent-bank conceded/accepted that the bank will not be able to afford 12% simple interest from the starting of the loan i.e. 1997-98, but if the appellants are ready and willing to pay 15%, the Bank would have no objection. However, the Bank was ready to give set off against interest deposit to its other account holders and that the appellants could also be given benefit on the same lines. This is a suggestive of the fact that the loans were from 1997-98 and not from 2000-2001. This is further substantiated by the letter dated 05.10.2004 of the appellants, letter dated 23.03.2007 of the Bank, report of the Chartered Accountant dated 04.05.2007 called for by the bank and letter dated 28.08.2007 of the Bank to the appellants stating that the proposal for OTS under the new scheme on the basis of the loans being of 199798, were forwarded to the High Level Committee. We have also noticed a finding of fact recorded by the learned Board of Nominees and confirmed by the Tribunal that there was no agreement between the parties as to the rate of interest being 22%, as claimed by the Bank. The learned Board of Nominees and the Tribunal also recorded finding of fact on the basis of the documents on record that the appellants were willing to make the payment of the outstanding amount and had consented to the disposal of the mortgaged properties at the 15% discount and offered partial adjustment of the borrowings against third party deposits of their acquaintances and costumers but, that the Bank for one reason or other, refused to take any positive step in the matter which compelled the appellants to approach the Court. 23. We are of the view that in the absence of an error of jurisdiction or a manifest error based on utter disregard of the provisions of law, or a failure of justice, the learned Single Judge ought not to have disturbed the findings recorded by the learned Board of Nominees and the Appellate Tribunal in exercise of powers under Articles 226 and/or 227 of the Constitution. Similarly, the findings of the learned Board of Nominees and the Appellate Tribunal being findings of facts, based on appreciation of evidence, the learned Single Judge ought not to have interfered with in the absence of the contention that the findings were perverse nor the learned Single Judge could have proceeded to re-appreciate the evidence. The Bank having accepted the fact that if an order was passed by the Tribunal increasing rate of interest from 12% to 15% and if such an order would have been passed by the learned Board of Nominees in the first instance, then probably there would have been no cause for the respondent-Bank to challenge such an order. 24. In the above view of the matter, the learned Single Judge committed an error apparent on the face of the record by disturbing the orders passed by the learned Board of Nominees and the Appellate Tribunal. 25. In the result, the appeals succeed. The judgment and order dated 21.01.2010 passed by the learned Single Judge in Special Civil Application No.1300 of 2004 with Special Civil Application No.1301 of 2004 is hereby quashed and set aside. Special Civil Application No.1300 of 2004 with Special Civil Application No.1301 of 2004 are hereby rejected. The order dated 06.12.2003 passed by the Gujarat State Co-operative Tribunal in Appeal No.1054 of 2003 is hereby confirmed. FURTHER ORDER 26. In view of the findings given in the judgment and the reasons recorded therein, the prayer for interim relief orally requested by the learned counsel for the respondent is rejected.