Shah Jayantilal Chimanlal vs Ranuj Nagrik Sahakari Bank Limited & Ors

Paresh Upadhyay, J

This appeal is filed by the original plaintiff and is directed against the judgment and decree dated 29.02.2016, passed by the 7th Additional District

Judge, Banaskantha at Deesa in Regular Civil Appeal No.2 of 2011, whereby the Appellate Court below has dismissed the appeal and upheld the

judgment and decree dated 22.12.2010, passed by the Principal Civil Judge at Shihori below application Exh.44 in Regular Civil Suit No.3 of 2005,

whereby the Trial Court had allowed the application filed by the original defendant No.1 â€" The Ranuj Nagrik Sahakari Bank Limited, under Order

VII, Rule 11(d) of the Code of Civil Procedure, 1908 and had thereby rejected the plaint.

Learned advocates are heard at length.

The suit was filed by the plaintiff â€" Jayantilal Chimanlal Shah, for declaration and permanent injunction. The impugned order passed by the Trial

Court is at Exh.44. It is on an application filed under Order VII, Rule 11(d) of the Code of Civil Procedure, 1908. The reading of the said application

makes it clear that, principally it was contended on behalf of the defendant that the Civil Court did not have jurisdiction to entertain the suit, in which

challenge was made to the proceedings instituted by the Co-operative Bank under the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 ‘(SARFAESI Act)’. There was also a passing reference to the Gujarat Co-operative Societies Act,

1961, without there being any specific reference to the provisions of the said Act. The said application was allowed by the Trial Court vide impugned

judgment dated 22.12.2010.

The Appellate Court below held that, the suit was not barred under the SARFAESI Act. The principal argument of the defendant was thus

rejected. That is not under challenge. The Appellate Court however held that, a notice under Sections 166 and 167 of the Gujarat Co-operative

Societies Act, 1961 was required to be given by the plaintiff. With that finding, the Appellate Court below confirmed the judgment and order of the

Trial Court.

The issue before this Court is whether the order of the Courts below, allowing the application under Order VII, Rule 11(d) of the Code of Civil

Procedure, 1908, for want of any notice under Sections 166 and 167 of the Gujarat Cooperative Societies Act, 1961, is justified.

Mr. Mehul Sharad Shah, learned advocate for the appellant has contended that the cause of action for the original plaintiff â€" present appellant had

nothing to do with any of the contingencies contemplated under Sections 166 and 167 of the Gujarat Co-operative Societies Act, 1961. According to

him, Section 166 of the Act has no application at all. He has relied on the following decisions in support of his submissions.

(i) (2010) 10 SCC 458 â€" Pralhad versus State of Maharashtra

(ii) 2013 (3) GLR 2337 â€" Administrator, Shri Dhakdi Group Cooperative Cotton Seed versus Union of India

(iii) 2005(1) GLH 68 â€" Mistry Jayantilal Maganlal Thro. Poh Bharatbai Damodarda

(iv) 2013(2) GLR 1386 â€" Banaskantha District Oil Seeds Growers Coop. Union versus M/s.Krishna Oil Mills

(v) 2003(2) GLH 58 â€" Vimal Cooperative Housing Society Limited versus Rajedrakumar Shankerbhai Bhagiya

As against that, Ms. Jhaveri, learned advocate for the respondent No.5 has submitted that she is unable to respond to the said contention and she is

not ready with the matter.

Mr. Ankit Shah, learned advocate for the respondent Nos.1 and 2 (Bank) has submitted that, the provisions of the Gujarat Co-operative Societies

Act, 1961, would certainly be attracted in the facts of this case.

Mr. Joshi, learned advocate for the respondent Nos.3 and 4 has submitted that, the respondent No.4 has died and his legal heir i.e. son, is even

otherwise on record as respondent No.3. He has submitted on behalf of respondent No.3 that he does not have any stand in the matter as he has

already sold the property to the present appellant.

During the Course of hearing, number of aspects are touched by the learned advocates and attention of the Court is invited to number of

documents, some of which are as under.

(i) Exh.7 given by the Bank to the Appellate Court below dated 28.01.2011.

(ii) Exh.95 filed by the Bank dated 15.03.2014 before the Appellate Court below.

(iii) The grievance voiced on behalf of the appellant â€" original plaintiff before the Appellate Court below to the effect that the application Exh.44

(given to the Trial Court) in fact was not given by the Bank.

(iv) The confusion at the end of the respondent Bank, as to whether any advocate was engaged or not, to contest the matter before the Trial Court

and / or before the Appellate Court below.

(v) Exh.8 (vakalatnama) filed before the Trial Court dated 30.04.2005, purported to have been signed by the respondents No.1, 2 and 5, jointly.

(vi) The authorisation purportedly given on behalf of the respondent No.5, by the learned advocate, who himself accepted the power, which is evident

from the record.

(vii) The grievance of the appellant with regard to an eye-wash in the auction proceedings, more particularly considering the relationship of the parties

who are indicated to have participated in it.

The above aspects may be required to be examined from wider perspective, to ensure that the judicial process is not played with, by any litigant.

To enable the parties to put their case before the Court effectively, the matter is adjourned.

It is noted that, this Court (Coram : Hon’ble Ms. Justice Bela M. Trivedi) had, vide order dated 31.03.2016, granted protection in favour of the

appellant â€" original plaintiff, which has continued all throughout. The said protection shall continue till further orders.

List for further consideration on 21.06.2019.