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Judgment
K.S. Jhaveri, J.—By way of present petition, the Petitioner has inter alia prayed for quashing and setting aside the impugned order dated 26th/30th August 1993 passed by the Deputy Secretary (Appeals), Revenue Department in Revision No. 3 of 1992 by restoring the order dated 31st July 1992 passed by the Mamlatdar, Recovery Cell (G.S.F.C.), Vadodara in Case No. 377 of 1992.
It is the case of the Petitioner that one Shantilal Mangalbhai Patel had taken a loan of Rs. 3,53,000/- from the Petitioner for development of his business. Thereafter, he was not able to repay the installments in time and the dues had accumulated to the tune of Rs. 5,53,000/-. Thereafter, the Managing Director of the Petitioner issued a certificate on 09th October 1986 u/s 3(1) of the Gujarat Public Moneys (Recovery of Dues) Act, 1979 (hereinafter referred to as ''the Act'') to recover the said dues from the said Shantilal Patel, who later on expired and his heirs are brought on record, who are the present Respondents.
2.1 In pursuance of the said certificate, the Special Officer on Duty auctioned the property of the Respondents herein which were hypothecated with the Petitioner, wherein thePetitioner obtained an amount of Rs. 3,47,000/-, however, an amount of Rs. 2,06,500/- remained due to be recovered from the Respondents.After the said properties were auctioned, the said Shantilal Patel expired. Therefore, the Mamlatdar, Recovery Cell (GSFC), Vadodara took further proceedings for recovering the balance outstanding amount by sale of his personal property which was received by the Respondents herein from the deceased.
2.2 It is further the case of the Petitioner that the deceased was holding agricultural lands bearing Block Nos. 21,71,77, 174, 283 and 896 at village Ranu in Padra Taluka of Vadodara District, which was attached by the Mamlatdar u/s 155 of the Land Revenue Code on 31st July 1992. Being aggrieved by the same, the Respondents herein preferred Revision Application No. 3 of 1992 before the Secretary (Appeals), Revenue Department, Ahmedabad, which ultimately came to be partly allowed by setting aside the order dated 31st July 1992 passed by the Mamlatdar. Hence, present petition.
Mr. D.R. Bhatt, learned advocate for the Petitioner, has submitted that when the petition filed by the Respondents before this Court was dismissed, it was not open to the Deputy Secretary to consider the legality and validity of the said proceedings; that the deceased had taken loan in his personal capacity as the proprietor of the Unit and there was no partnership at the time when the loan was taken; that no permission was given by the Petitioner to transfer the property to the partnership firm and that the deceased had undertaken personal liability to discharge the debit even after the hypothecated property was exhausted. In view of aforesaid, it is prayed to set aside the impugned order.
Mr. B.T. Rao, learned advocate for the Respondents, has relied upon the affidavit-in-reply filed on behalf of the Respondents and submitted that the order passed by the Deputy Secretary is just and proper. The Deputy Secretary has assigned cogent and convincing reasons for arriving at the conclusion. Hence, it is prayed that the present petition may be dismissed.
Having considered the rival contentions raised by the learned consel for the respective parties, averments made in the petition as well as affidavit-in-reply and the documentary evidence produced on record, it transpires that the Petitioner had advanced loans in the name of M/s. Shakti Rice and Pulse Mills, a proprietary concern of the deceased-father of the Respondents herein. However, by subsequent deed of partnership, M/S. Shakti Rice and Pulse Mills has been converted into a partnership firm and there is a clause in the said deed that it should be presumed that the partnership firm has commenced business with effect from 17th December 1989. It is pertinent to note that in Clause 8 of the partnership deed, a reference has been made with regard to the loan of Rs. 3,53,000/- taken from the Petitioner, wherein all the partners have accepted the responsibility of the loan given by the Petitioner and it is further stated that all the partners are jointly and severally responsible for repayment of the loan of the Petitioner.
5.1 It is pertinent to note that a copy of the said partnership deed was also forwarded to the Petitioner. However, the Petitioner has not objected to the same. Further, by creating such a deed the Respondents have not tried to by-pass the loan granted by the Petitioner since there is a specific mention about the said loan in the partnership deed. Thus, it was not open to the Petitioner to contend that the Petitioner had not consented to the said partnership firm. It is also required to be noted that the father of the Respondents had retired from the partnership with effect from 03rd April 1982, whereby the other partners had taken over the liabilities of the said firm from 31st March 1982. It is pertinent to note that even the deed of retirement cum resolution has also been forwarded to the Petitioner. Thus, the deceased Shantilal Patel was not at all responsible to make payment of the outstanding amount in the account of M/s. Shakti Rice and Pulse Mills.
In view of aforesaid, I am of the opinion that the view taken by the Deputy Secretary is just and proper. The Deputy Secretary has assigned cogent and convincing reasons for arriving at the conclusion. Over and above the reasons assigned hereinabove, I adopt the reasons assigned by the Deputy Secretary and do not find any illegality much less any perversity in the findings recorded. I am in complete agreement with the findings recorded by the Deputy Secretary. No case is made out to interfere with the findings recorded by the Deputy Secretary. Hence, present petition deserves to be dismissed.
For the foregoing reasons, present petition fails and is, accordingly, dismissed. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.