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2021 DIGILAW 950 (GUJ)

BANGA RAJRANI DEVAKINANDAN v. STATE OF GUJARAT

2021-10-18

BHARGAV D.KARIA

body2021
ORDER : 1. Heard learned advocate Mr. Bakul Panchal for the petitioner, learned Assistant Government Pleader Mr. Dhawan Jayswal for respondent No.1 and learned advocate Mr. Arvind Yadav for respondent No.2. 2. By this petition under Article 227 of the Constitution of India, the petitioner has challenged order dated 04.03.2021 passed by the Gujarat State Co-operative Tribunal, Ahmedabad [‘the Tribunal’ for short] below Exh 8 in Appeal No. 9 of 2021 which was filed by the petitioner being aggrieved by the judgement and decree passed by the Board of Nominees in Summary Lavad Case No. 174 of 2016. 3. The brief facts of the case are as under: 3.1 The petitioner No.1 and respondent Nos. 3 and 4 are the borrowers and guarantors of respondent No.2-Textile Traders Co-operative Bank Limited. Respondent No.2 advanced cash credit facility of Rs. 1.80 crores against hypothecation of debt and stock and raw materials in the year 2014 to respondent No. 3- Banga Ruchi Akash, Proprietor of M/s. Shreeji Apparels and respondent No.4-Banga Akash Devkinandan, who is a guarantor of respondent No.3. The petitioner is the mother of respondent No.4 and mother-in-law of respondent No.3. 3.2 The respondent No.2-Bank also advanced a loan of Rs. 20 lacs for purchase of machinery against personal guarantees given by respondent Nos. 3 and 4. Respondent No.3 and 4 also have given demand promissory note, letter of lien, letter of continuity, undertaking about interest rate, power of attorney, deed of hypothecation, machinery loan agreement, and executed the plant and machinery hypothecation deed on 20.09.2014 in favour of respondent No.2-Bank. The petitioner stood as guarantor of the respondent No.3 M/s. Shreeji Apparels against the loan facility obtained by the respondent No.3 and respondent No.4 mortgaged the property to the respondent No.2-Bank for the loan advanced to respondent No.3. 3.3 Respondent No.3 has also offered to mortgage the said property in favour of respondent No.2-Bank to secure the financial assistance advanced to M/s Shreeji Apparels - proprietary concerned of wife of respondent No.4. 3.4 Respondent No.2-Bank advanced the loan against the said property which was mortgaged earlier with Kalupur Commercial Bank Ltd, Central Bank of India and Ratnakar Bank in the years 2012-13 and 2013-14. 3.4 Respondent No.2-Bank advanced the loan against the said property which was mortgaged earlier with Kalupur Commercial Bank Ltd, Central Bank of India and Ratnakar Bank in the years 2012-13 and 2013-14. 3.5 Respondent No.3 failed to make the repayment of the loan advanced by the respondent No.2 Bank and therefore, respondent No.2 filed Summary Lavad Case No. 174 of 2016 on 20.05.2016 before the Board of Nominees, Ahmedabad Division for recovery of Rs. 2,18,59,519.49 against the petitioner and the respondent Nos. 3 and 4. In the said Summary Lavad Case, respondent Nos. 3 and 4 appeared through their advocate and applied for a leave to defend unconditionally. The Board of Nominees, by order dated 18.03.2017 passed by below Exh 75, allowed the application for leave to defend conditional and permitted the petitioner and respondent Nos.3 and 4 to defend the Lavad Suit on condition to deposit 25% of the outstanding amount claimed by the respondent No.2 in the suit. 3.6 Respondent Nos.3 and 4 challenged the order dated 18.03.2017 by preferring Special Civil Application No. 6780 of 2017 before this Court. However, the same was withdrawn by respondent Nos. 3 and 4 on 06.12.2019. 3.7 The Board of Nominees, by judgement and decree dated 24.12.2000, partly allowed the Summary Lavad Case No. 174 of 2016 passed by the respondent No.2-Bank and ordered to recover Rs.2,18,59,519.49 from respondent Nos. 3, 4 and the petitioner with interest @ 13% w.e.f. 01.05.2016. 3.8 The petitioner, being aggrieved by the judgement and decree passed by the Board of Nominees, preferred Appeal No. 9 of 2021 before the Gujarat State Co-operative Tribunal under section 153 of the Gujarat Cooperative Societies Act, 1961 [for short ‘the Act, 1961’]. 3.9 The petitioner also preferred the injunction application Exh. 8 under section 150(10) of the Act, 1961 read with Order 41 Rule 5 of the Code of Civil Procedure, 1908. 3.10 The Gujarat State Co-operative Tribunal, after considering the reply filed by the respondent No.2, passed the impugned order dated 04.03.2021 below Exh. 8 in Appeal No. 9 of 2021 rejecting the injunction application preferred by the petitioner. 8 under section 150(10) of the Act, 1961 read with Order 41 Rule 5 of the Code of Civil Procedure, 1908. 3.10 The Gujarat State Co-operative Tribunal, after considering the reply filed by the respondent No.2, passed the impugned order dated 04.03.2021 below Exh. 8 in Appeal No. 9 of 2021 rejecting the injunction application preferred by the petitioner. 3.11 The petitioner therefore has preferred this petition with the following prayers: “A. That this Hon’ble Court be pleased to issue writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 04.03.2021 passed by the Learned State of Guajarat Sahkari Tribunal Ahmedabad below application Exhibit 08 in Regular Appeal No. 09 of 2021 in the interest of justice; B. Pending admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to stay the order passed by the Appellate Tribunal Court below Exhibit 08 and proceedings of Regular Civil Appeal No. 09 of 2021 pending before the ld. State of Gujarat Sahakari Tribunal Ahmedabad and further be pleased to pass an order of status quo in the interest of justice; C. That this Honb’le Court may be pleased to pass such further and other orders or directions as the nature and circumstances of the case may require.” 3.12 This Court [Coram:Hon’ble Mr. Justice Biren Vaishnav] passed the following order dated 22.04.2021 after hearing learned advocate for the petitioner: “Heard Mr. Bakul S. Panchal, learned counsel for the petitioner through Video Conferencing. He states that he is willing to settle the dues of the respondent – Bank namely; Textile Traders Cooperative Bank Limited and is therefore willing to approach the Bank for 'One Time Settlement' if the Bank is willing to accept such request. It is the case of the petitioner that the property in question has been taken over by the Bank and / or the Bank has applied its seal. It will be open for the petitioner to approach the Bank with the proposal to settle the dues and for the Bank to consider, by way of an interim arrangement, on the petitioner willing to deposit at least 25% of the outstanding amount to open the seal if otherwise thought fit. Issue NOTICE to the respondents, returnable on 7.6.2021. It will be open for the petitioner to approach the Bank with the proposal to settle the dues and for the Bank to consider, by way of an interim arrangement, on the petitioner willing to deposit at least 25% of the outstanding amount to open the seal if otherwise thought fit. Issue NOTICE to the respondents, returnable on 7.6.2021. The Registry is requested to communicate this order through email.” 3.13 As per the aforesaid order, the petitioner was permitted to approach respondent No.2-Bank with the proposal to settle the outstanding dues and to consider by way of interim arrangement on the petitioner willing to deposit at least 25% of the outstanding amount to open the seal applied by the respondent No.2-Bank on the property mortgaged by respondent Nos. 3 and 4. 3.14 It appears that the petitioner approached the respondent-Bank with the proposal for one time settlement scheme as permitted by this Court by the aforesaid order on 28.04.2021. The respondent-Bank, in response to such proposal, vide letter dated 03.05.2021 informed the petitioner to make a payment of 25% of the outstanding amount i.e. Rs. 89,70,211/- before 20.05.2021 so as to enable the respondent No.2-Bank to consider the proposal of the petitioner. 3.15 It appears that the petitioner however, could not make the payment of Rs. 89,70,211/- by 25.05.2021 and therefore, the proposal of the petitioner to settle the account could not be considered by the respondent-Bank pursuant to the order passed by this Court on 22.04.2021. 3.16 The petitioner was also informed by letter dated 26.05.2021 by the respondent No.2-Bank to make the payment of 25% of the outstanding dues up to 05.06.2021. However, the petitioner, instead of making the payment of 25% of the outstanding dues, offered to make the payment of Rs. 2.05 crores towards the full and final settlement. 4. Learned advocate Mr. Panchal appearing for the petitioner submitted that the petitioner has never appeared before the Board of Nominees as the petitioner did not give any power of attorney to the respondent Nos. 3 and 4 as there is a dispute between the petitioner and the respondent Nos. 3 and 4. 4.1 It was further submitted that the petitioner has filed Civil Suit No. 1258 of 2016 and Civil Suit No. 592 of 2018 against the respondent Nos. 3 and 4 for challenging the ‘Will’ of the late husband of the petitioner. 3 and 4 as there is a dispute between the petitioner and the respondent Nos. 3 and 4. 4.1 It was further submitted that the petitioner has filed Civil Suit No. 1258 of 2016 and Civil Suit No. 592 of 2018 against the respondent Nos. 3 and 4 for challenging the ‘Will’ of the late husband of the petitioner. 4.2 Learned advocate Mr. Panchal has also tendered additional affidavit on behalf of the petitioner placing on record, the certified copies of the memo of the plaint of Regular Civil Suit No. 1258 of 2016 and the order dated 29th June, 2016 passed by the City Civil Court granting interim relief in favour of the petitioner. It was also pointed out that respondent No.2-Bank has also filed an application to join as party in the pending Civil Suit No. 1258 of 2016 which was allowed by the Chamber Judge, Court No. 24 of the City Civil Court vide order dated 03.07.2019. 4.3 Learned advocate Mr. Panchal further submitted that the injunction application is still pending before the City Civil Court for hearing and the same is listed for hearing on 29.11.2021. 4.4 It was submitted that the petitioner is still ready and willing to deposit 25% of the outstanding dues of the respondent No.2-Bank. It was also pointed out that the petitioner is also ready and willing to pay Rs. 2.05 crores towards full and final settlement of the dues to the respondent No.2-Bank. 5. On the other hand, learned advocate Mr. Yadav appearing for respondent No.2-Bank submitted that the petition is filed to challenge the rejection of the Interim Injunction Application Exh. 8 in Appeal No. 9 of 2021 preferred by the petitioner challenging the judgement and decree of the Board of Nominees under Order 41 Rule 5 of the Code of Civil Procedure. It was therefore, submitted that once the Tribunal has not found any prima facie case or balance of convenience in favour of the petitioner and as the petitioner has also not deposited 25% of the outstanding dues as directed by this Court, no interference may be made by this Court while entertaining the petition or any prayer of the petitioner expressing willingness to pay the outstanding dues of the respondent No.2-Bank. 6. 6. Having heard learned advocates for the respective parties and having gone through the material on record, it appears that the petitioner has filed Civil Suit No. 1258 of 2016 against respondent Nos.3 and 4 who are daughter-in-law and son of the petitioner respectively with respect to the ‘Will’ of the late husband of the petitioner which is pending before the City Civil Court. The petitioner is only the guarantor for the loan obtained by the respondent Nos. 3 from respondent No.2-Bank and the properties are also mortgaged by respondent Nos.3 and 4 with the respondent No.2-Bank. In such circumstances, when the respondent No.2-Bank has already taken action for recovery of the outstanding dues pursuant to the judgement and decree passed by the Board of Nominees, the petitioner could not have objected the same more particularly, when the appeal filed by the petitioner challenging such judgement and decree is pending before the Gujarat State Co-operative Tribunal. 7. The Tribunal, after taking into consideration the fact that the petitioner along with respondent Nos. 3 and 4 have failed to deposit 25% of the amount to contest the Lavad Suit as conditional leave was granted by the Board of Nominees, there was no need to grant stay against the judgement and decree which is a money decree in favour of the respondent No.2-Bank passed by the Board of Nominees. The Tribunal has also recorded that the petitioner or the respondent Nos. 3 and 4 have not deposited any amount with the respondent No.2-Bank till date except Rs. 2 lakh on 11.03.2021 as stated in the affidavit of the petitioner annexed with Civil Application No. 2 of 2021. The Tribunal has therefore, rightly not granted any injunction in favour of the petitioner during the pendency of the appeal. 8. In view of the above facts and for the foregoing reasons, the petition fails and is accordingly dismissed. Notice is discharged. Civil Application No. 2 of 2021 is also disposed of as Special Civil Application is dismissed.