Patel Hargovanbhai Trikamdas and 1 vs Ranuj Nagrik Sahakari Bank Ltd. and 1

Honourable Mr. Justice M.R. Shah

By way of this petition under Article 227 of the Constitution of India, the Petitioners - original Defendant Nos. 5 and 6 have prayed for an appropriate order to quash and set aside the impugned judgement and order dated 25/07/2011 passed by learned Gujarat State Co-Operative Tribunal, Ahmedabad in Appeal No. 285 of 2005 in dismissing the said appeal and confirming the judgement and award dated 13/09/2004 passed by learned Board of Nominees, Mehsana in Summary Lavad Case No. 1834 of 2002.

It appears that Respondent No. 1 - Bank had instituted Summary Lavad Case No. 1834 of 2002 against the present Petitioners and other Defendants. That by impugned judgement and award dated 13/09/2004 passed in Summary Lavad Case No. 1834 of 2002, the learned Board of Nominees allowed the said Suit and directed the Defendants (except Defendant No. 4) to pay the suit amount of Rs. 14,29,877/- with simple interest at the rate of 17.5% from the date of filing of the Suit i.e. 08/11/2002 till realisation. Being aggrieved by and dissatisfied with the aforesaid judgement and award passed by learned Board of Nominees, the Petitioners had preferred Appeal No. 285 of 2005 before learned Gujarat State Co-Operative Tribunal, Ahmedabad and the learned Tribunal vide judgement and order dated 25/07/2011 has been pleased to dismiss the said Appeal.

Being aggrieved by and dissatisfied with the impugned judgement and order passed by learned Tribunal as well as judgement and award passed by learned Board of Nominees, the Petitioners have preferred the present petition under Article 227 of the Constitution of India.

Mr. Bharat Jani, learned advocate appearing on behalf of the Petitioners has submitted that the Petitioners are accepting the judgement and award passed by learned Board of Nominees in Summary Lavad Case No. 1834 of 2002, confirmed by learned Gujarat State Co-Operative Tribunal, Ahmedabad. However, he has requested to reduce the rate of interest from the date of passing of the judgement and award by learned Board of Nominees till its realisation. He has requested to consider the simple interest at the rate of 12% per annum from the date of passing of the judgement and award by learned Board of Nominees till amount is realised. He has also stated at the bar that simple interest at the rate of 17.5% on 14,29,877/- from the date of filing of the Suit till date of judgement and award passed by learned Board of Nominees, the Petitioners are not disputing the same. He has also stated at the bar that a sum of Rs. 24,06,784/- has been paid as per the judgement and award passed by learned Board of Nominees under the Account in question. He has submitted that considering the above rate of interest, a sum of Rs. 17,69,721/- is due and payable by the Petitioners and principal debtor, which the Petitioners shall pay if the reasonable installments are granted. He has requested that out of Rs. 17,69,721/-, Rs. 7,69,721/- shall be paid by the Petitioners on or before 31/12/2011 and balance amount of Rs. 10,00,000/- with 12% simple interest on Rs. 17,69,721/- from 14/09/2004 till entire amount is cleared, shall be paid in ten equal monthly installments commencing from January,2012. He has also stated at the bar that if the aforesaid is granted, the Petitioners shall file necessary Undertaking before this Court within a period of two weeks from today.

Mr. Ravindra Shah, learned advocate appearing on behalf of Respondent No. 1-Bank, under the instructions from Respondent No. 1, has stated at the bar that Respondent No. 1 has no objection, if the impugned judgement and award passed by learned Board of Nominees confirmed by the learned Tribunal is modified to the aforesaid extent in the facts and circumstances of the case.

In view of the above and in the facts and circumstances of the case more particularly when it appears that it is very difficult to recover an amount from principal debtor as the same has gone under liquidation, Respondent No. 1 shall be able to recover the amount from the guarantor. He has stated that he has no objection, if the impugned judgement and award passed by learned Board of Nominees is modified to the extent that simple interest at the rate of 17.5% from the date of filing of the Suit till the date of judgement and award passed by learned Board of Nominees i.e. 08/11/2002 till 13/09/2004 and 12% simple interest on Rs. 17,69,721/- from 14/09/2004 till realisation and for which reasonable installments are granted.

In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties and in the peculiar facts and circumstances of the case and without citing the same as precedent, the impugned judgement and award passed by learned Board of Nominees in Summary Lavad Suit No. 1834 of 2002 confirmed by learned Tribunal by impugned judgement and order dated 25/07/2011 passed in Appeal No. 285 of 2005 is hereby modified to the extent that instead of 17.5% simple interest on Rs. 14,29,877/- from the date of filing of the suit i.e. 08/11/2002 till realisation, it shall be 17.5% simple interest on Rs. 14,29,877/- from the date of filing of the Suit i.e. 08/11/2002 till 13/09/2004 and simple interest at the rate of 12% on the amount of Rs. 17,69,721/- from 14/09/2004 till its realisation. Rest of the judgement and award passed by learned Board of Nominees confirmed by the learned Tribunal is hereby confirmed. Therefore, considering the above, the Petitioners and principal debtor are required to pay total a sum of Rs. 17,69,721/- as on today.

It is reported that under the Account in question, till date, the principal borrower has paid Rs. 24,06,784/- and Rs. 17,69,721/- is due and payable by the Petitioners as well as original debtor as on today. As stated hereinabove, the Petitioners have accepted liability to pay Rs. 17,69,721/- for which the Petitioners have asked for installments and as stated hereinabove, it is agreed by the Petitioners that a sum of Rs. 7,69,721/- shall be paid by the Petitioners to the Respondent-Bank on or before 31/12/2011 and balance amount of Rs. 10,00,000/- with simple interest at the rate of 12% per annum on Rs. 17,69,721/- from 14/09/2004 till realisation, shall be paid in ten monthly equal installments commencing from January, 2012. Under the circumstances, the Petitioners are granted time to pay balance amount of Rs. 17,69,721/- with 12% simple interest commencing from 14/09/2004 till its realisation i.e. upto 01/10/2012. Out of the aforesaid amount, the Petitioners are directed to pay Rs. 7,69,721/- to the respondent-bank on or before 31/12/2011 and balance amount along with simple interest at the rate of 12% per annum on Rs. 17,69,721/- shall be paid by the Petitioners in ten equal monthly installments of Rs. 1,00,000/- and last installment shall be of Rs. 1,00,000/- plus 12% simple interest on Rs. 17,69,721/- calculates from 14/09/2004 till realisation i.e. 01/10/2012. The Petitioners shall file an Undertaking to the aforesaid extent within a period of two weeks with affirmed copy to Respondent No. 1 - Bank. If such an Undertaking is not filed, it will be open for Respondent No. 1 bank to recover entire amount as stated hereinabove by executing judgement and award passed by learned Board of Nominees, which is modified by this Court. If the aforesaid amount is not paid by the Petitioners and there are two consequetive defaults in paying the installments, in that case, it will be open for Respondent No. 1 - Bank to recover the said amount by executing the judgement and award passed by learned Board of Nominees, which is modified by this Court and/or by filing appropriate application for breach of Undertaking, which is agreed by Mr. Bharat Jani, learned advocate appearing on behalf of the Petitioners. Rule is made absolute to the aforesaid extent. No costs.