AI Structured Summary
Not yet generated for this judgment
Judgment
M.D. Shah, J.—The Petitioner - original Plaintiff has filed this petition under Articles 226 and 227 of the Constitution of India, with a prayer to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the order dated 17.8.2004 passed by the Tribunal in Appeal No. 927 of 2003 in so far as directing the Board of Nominees Court, Anand to give an opportunity to the Defendants to file application to defend and to decide the Lavad Case No. 328 of 2003 on merits. It is also prayed to quash and set aside the order dated 6.10.2004 passed by the Tribunal in Appeal No. 927 of 2003 refusing to entertain the Review Application No. 62 of 2004 and again confirming the order dated 17.8.2004 passed by the Tribunal in Appeal No. 927 of 2003. It is also prayed that the Respondent-authorities be directed to initiate proceedings against the Respondent No. 9 and a mandate to that effect be given to the Registrar, Co-operative Societies, Gujarat State - Respondent No. 10 herein. It is also prayed that the Respondents No. 11, 12 and 13 be restrained from transferring the suit properties or creating any charge or encumbrances on the suit properties. It is further prayed that pending the hearing and final disposal of the petition, this Court be pleased to stay and suspend further proceedings of Lavad Case No. 328 of 2003 in the Court of Board of Nominees Court, Anand.
The brief facts giving rise to this petition are as under:
2.1 The present Petitioner filed Summary Lavad Case No. 328 of 2003 before the Board of Nominees Court, Anand to recover Rs. 26,34,886/- with running compound interest at the rate of 18% plus 2% as penal interest. Along with the said Lavad Case No. 328 of 2003, application Exh.4 was also filed for attachment before judgment as also to restrain the Respondents from transferring, assigning or in any manner alienating the suit property pending disposal of Lavad Case No. 328 of 2003.
2.2 The Board of Nominees Court, Anand on 27.2.2003 granted the prayer which is mentioned in Schedule - 8(A) of the said application and also granted interim relief against transferring, assigning or in any manner alienating the suit property. The Board of Nominees also issued summons u/s 99(4) of the Gujarat Co-operative Societies Act, and informed the Respondents to the effect that, if they want to defend the suit then within 10 days they can submit application before the Board of Nominees Court for leave to defend along with the documents on which they relied.
2.3 Thereafter the Defendants did not file application for leave to defend within ten days on service of summons. In view of above, a right in favour of the Plaintiff to get a decree passed in their favour immediately was accrued.
2.4 Thereafter on 26.6.2003 the Defendants submitted an application before the Board of Nominees Court, Anand vide Exh.13 with a prayer that they want to file purshis for taking up the case on the board. The Board of Nominees Court, Anand has allowed the said application by taking up the matter on the board. Thereafter the Defendants submitted compromise purshis before the Board of Nominees Court, Anand without providing copy of said purshis to the Plaintiff or the advocate of the Plaintiff bank. The Board of Nominees Court has also not taken any care to call the advocate of the Plaintiff bank before passing any order below compromise purshis filed by the Defendants. The Board of Nominees Court without adjourning the matter on the same day passed the decree in terms of the compromise purshis filed by the Defendants without endorsement of the Plaintiff advocate or without the consent of the Plaintiff bank. The said order is challenged before the tribunal. The tribunal has also without considering the seriousness of the case allowed the appeal by quashing and setting aside the order passed by the Board of Nominees Court on 26.6.2003 and held that the Board of Nominees Court will decide the suit on merits. The tribunal has also passed the order to the effect that the Defendants are permitted to submit application for leave to defend and the Board of Nominees Court can take up the matter on board on 1.10.2004 and the Defendants can file reply/application within 10 days thereafter.
2.5 Thereupon the present Petitioner has preferred review application which was numbered as Review Application No. 62 of 2004 for modifying/rectifying the order passed by the tribunal and prayed to give permission to the present Respondents for filing leave to defend the suit. However, it was rejected by the tribunal vide order dated 6.10.2004. Both these orders are under challenge in this petition.
Heard learned advocate Mr. Shirish Joshi for the Petitioner and learned AGP Ms. Shachi Mathur for the State.
It is submitted by learned advocate Mr. Joshi for the Petitioner that the tribunal has committed an error in giving opportunity to file leave to defend application to the Defendants, and as they did not file application within 10 days from the date of the impugned order passed by the tribunal, their right to file leave to defend application was closed. It is, therefore, submitted that the Board of Nominees Court should proceed with the suit as per the provisions of the law from the date of passing of the order i.e. 26.6.2003.
The learned advocates appearing for the othersides are not present when the matter is called out.
In the opinion of this Court when it was come within the knowledge of the tribunal that Respondents have played mischief and obtained the order from the Board of Nominees Court in their favour without informing the Plaintiff''s advocate, then it should have been seriously viewed by the tribunal and the question does not arise for the tribunal to give permission to the Defendants to prefer leave to defend application before the trial court. Taking into consideration the manner in which the order was passed by the Board of Nominees Court cannot sustain even for a moment and tribunal ought to have quashed the order and the matter should have been remanded to the Board of Nominees Court for further proceedings. The parties, who are not coming with clean hands before the Board of Nominees Court, are not entitled to get any relief of equity when prima facie it is found that they have played mischief for obtaining favourable order in their favour.
In view of the discussions made hereinabove, the impugned order passed by the tribunal is hereby modified to the extent that the order passed by the Board of Nominees Court dated 26.6.2003 is hereby quashed and set aside but the order passed by the tribunal granting permission to file leave to defend application is hereby quashed and set aside. However, order remanding the matter back to the Board of Nominees Court is hereby confirmed and the Board of Nominees Court shall proceed with Summary Lavad Case No. 328 of 2003 from the stage it was on 26.6.2003 i.e. date on which the decree was passed by the Board of Nominees Court and decide the same in accordance with law and on its own merits, as expeditiously as possible.
With the above observations and directions, this petition stands disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.
Looking to the manner in which the matter has been dealt with by the Board of Nominees Court, the higher authority of the State Government shall look into the matter, and if think fit, then take appropriate steps against the concerned Board of Nominees Court. Office is directed to provide a copy of this order to learned AGP.