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Judgment
Heard learned advocate Mr. P. J. Mehta for the petitioner and learned advocate Mr. K. J. Vyas for the first respondent. The rest of the respondent Nos. 2 to 9 were allowed to be deleted as per order dated 12.03.2015.
The petitioner prayed for setting aside the demand notice and calculation thereon dated 10.12.2014 and 18.12.2014. The copies of the impugned notices are produced at AnnexureI and Annexure-K in the compilation of the petition. By notice dated 10.12.2014, the recovery officer of the respondent No.1 Kankaria Maninagar Nagrik Sahakari Bank Ltd. has called upon the petitioner to pay Rs. 20,04,338/- due upto 04.12.2014 with interest running thereon. Similarly, the notice dated 18.12.2014 is a notice in repeat, which has reiterated the demand rejecting the representation of the petitioner that the calculation of the amount was not correct. In the said notice dated 18.12.2014, the petitioner was asked to pay and to submit the payment schedule to clear the dues.
The dues claimed by the bank have piled up pursuant to judgment and decree by Board of Nominees, Ahmedabad, passed on 25.09.2003 in Lavad Case No. 1351 of 2000. It appears that in the year 1993, the petitioner borrowed from the respondent bank the loan of Rs. 5,50,000/-, which was sanctioned by executing necessary documents including security bond and placing the property in mortgage. The respondent bank instituted Summary Recovery Suit before the Board of Nominee under section 96 of Gujarat Co-Operative Societies Act, 1961 for recovery of Rs. 7,10,649/- with interest being the amount then due. 3.1 The Lavad Suit resulted into judgment and decree dated 25.09.2003. The respondent bank preferred appeal before the Tribunal against the said judgment and decree, which was dismissed, and the decree was confirmed. The present petitioner-the judgment debtor has not preferred any appeal.
On behalf of the first respondent, affidavit-in-reply is also filed, the contents of which were relied on by the learned advocate for the respondent. In the affidavit-in-reply itself, it is asserted that the respondent bank is entitled to recover the amount as per the judgment and decree of the Board of Nominees including the interest payable. 4.1 Learned advocate for the petitioner submitted that the decree of the Board of Nominees inter alia provided to credit the fix deposit of the petitioner for Rs. 1,15,000/- lying with the bank and after adjusting such credit, the amount shall be payable by the petitioner with cost of Rs. 5000/- and with interest at 23%. It was submitted that the petitioner had requested the bank to give credit of the fixed deposit by placing letter on 10.08.1994, and therefore on that itself, the bank ought to have given credit of the said amount. The credit was given, but belatedly. Therefore, the amount shown to be recoverable was wrongly arrived at.
4.2 On the other hand, learned advocate for the respondent bank submitted that the said deposit was kept as co-lateral security in respect of different transactions towards the borrowings obtained by the petitioner, as the petitioner was dealing in sell of televisions. He therefore submitted that the entire case of the petitioner on that count was not well maintained. He submitted that in any case the credit was granted for the said deposit in the year 1999. He submitted that the petitioner has raised his objection about the calculations at a stage when recovery notice was issued against him.
The main contention of the petitioner is about the adjustment of fixed deposit to Rs. 1,15,000/- in the loan account and it is contended on that basis that dues towards loan ought to have been reduced on that count by properly depositing and crediting the said amount of fixed deposit towards repayment of loan. From the perusal of the judgment and decree of the Board of Nominees, it could be seen that the said aspect was considered by the Board of Nominees while passing the decree. The credit of the said fixed deposit of Rs. 1,15,000/- was given by the bank in the year 1999 as is reflected from the facts on record of the petition. The dues have thereafter been calculated and the recovery certificates are issued. The petitioner was called upon to submit the schedule of repayment in the second recovery notice which was sent to him after considering his representation about the calculation of the amount.
Not only that the case of the petitioner on the count of correctness or otherwise of the calculation of the dues raises serious disputed questions of facts which could not be gone into in writ jurisdiction, in any view, the clinching aspect is that the petitioner did not challenge the judgment and decree of Board of Nominees. It became final. The petitioner challenges recovery and the calculation in writ jurisdiction. The present petition has been filed only at the juncture when the recovery notices are issued. Faced with the recovery notice, the petitioner appears to have been questioning the calculation part. It is difficult to countenance that any such contention would lie valid for the petitioner at this stage. The judgment and decree of Board of Nominees was never challenged and at this stage, the grievance of the aforesaid nature is sought to be raised.
No case is made out for entertaining the petition and granting any relief to the petitioner. The same is dismissed. Notice is discharged. It may be stated that the amount of Rs. 50,000/- deposited by the petitioner pursuant to order dated 27.04.2016 of this court, shall be given due credit and adjustment in the dues.