NEUTRAL CITATION
C/SCA/7267/2023 ORDER DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7267 of 2023
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M/S MEHTA AYURVEDIC PHARMACY
Versus
THE BARODA PEOPLE COOPERATIVE BANK LTD.
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Appearance:
MR H.M. PARIKH SENIOR ADVOCATE with MR.D K.PUJ(3836)
for the Petitioner(s) No. 1,2,3
MR RASESH H PARIKH(3862) for the Respondent(s) No. 1
MR.HEMANG H PARIKH(2628) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 01/11/2023
ORAL ORDER
1. By way of this petition, the petitioners have challenged the order dated 16.3.2023 passed by the Gujarat State Co-operative Tribunal in Appeal No.645 of 2006 confirming the order dated 30.6.2006 by the Board of Nominees, Vadodara in Lavad Case No.674 of 2002.
2. By way of order dated 30.6.2006, Board of Nominees, Vadodara allowed the Lavad Suit No.674 of 2002 preferred by the respondent No.1 and decreed the suit in favour of respondent No.1 by Page 1 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined directing the petitioner to pay a sum of Rs.24,79,459/- from 1.4.2002 along with 16% interest and cost of Rs.6180/-.
3. The Co-operative Tribunal vide impugned order dated 16.3.2023 confirmed the aforesaid order and dismissed the Appeal No.645 of 2006 preferred by the petitioners. Being aggrieved by the same, the petitioners have preferred this petition.
4. Heard learned advocate Mr. D.K. Puj appearing for the petitioners and learned senior advocate Mr. H.M. Parikh with learned advocate Mr. Kishan Dave appearing for the respondent No.1 Bank.
5. The respondent Bank lended an amount of Rs.15,00,000/- at the interest rate of 17% per annum to the petitioner and as the said amount could not be repaid as per the terms of loan agreement, the bank preferred Lavad Suit No.674 of 2002 before Board of Nominees at Vadodara. In the aforesaid suit, though the present Page 2 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined petitioners specifically took a contention that the petitioner is not a member of respondent Bank and therefore, the dispute between bank and present petitioner cannot be termed as a dispute under Section 96 of Co-operative Societies Act and therefore, the Board of Nominees, Vadodara does not have jurisdictions to adjudicate the aforesaid dispute. The Board of Nominees, Vadodara even after framing the aforesaid issue about whether the petitioner can be termed as members of the respondent Bank or not, decided the suit in favour of respondent No.1 Bank and directed the petitioner to pay a sum of Rs.24,79,459/- from 1.4.2002 with 16% interest to the respondent Bank till the date of realization.
6. The aforesaid order was carried in appeal by the petitioner before the Co-operative Tribunal by Appeal No.645 of 2006.
7. Even before the lavad suit was filed by the bank before the Board of Nominees, Vadodara, the bank Page 3 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined had preferred a Summary Special Suit No.138 of 2000 before the Court of learned Civil Judge (Senior Division) at Vadodara. In that suit, the bank took a specific stand that the present petitioner was not the member of respondent No.1 Bank and therefore, for recovery of loan amount of Rs.15,00,000/-, Summary Suit No.138 of 2000 was preferred by the bank.
8. However, that suit remained pending, while in 2006, the subsequent lavad suit preferred in the year 2002 was decided by the Board of Nominees and against that appeal before the Co-operative Tribunal was pending.
9. In the Civil Court, the aforesaid Summary Suit No.138 of 2000 upon its transfer to another Court was renumbered as Commercial Summary Civil Suit No.175 of 2019 and in that the present petitioner on 8.1.2020 preferred an application below Exh.18 challenging the jurisdiction of Civil Court. In the aforesaid application in paragraph No.3, a specific averment was made by Page 4 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined the petitioner stating that the petitioner obtained loan from respondent No.1 Bank in capacity as member of the aforesaid bank and in the prayer also, it was specifically stated that as the petitioner is the member of the respondent No.1 Co-operative Bank, for recovery of the outstanding amount of the bank, the bank could have proceeded only under-section 96 before the Board of Nominees and therefore, the suit is barred by jurisdiction and therefore, the same may be dismissed.
10. Upon hearing the aforesaid application, learned Principal Senior Civil Judge, Commercial Court, Vadodara passed an order on the very same day i.e. 8.1.2020 taking note of the fact that the lavad Case No.674 of 2002 has been decreed in favour of the respondent Bank, vide order dated 30.6.2006. It is noteworthy that in the application below Exh.18, the present petitioner did not disclose that the aforesaid order dated 30.6.2006 has been carried in appeal by the Page 5 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined petitioner itself and that appeal has not yet been decided and therefore, learned Principal Senior Civil Judge, Commercial Court, Vadodara by taking note of the fact that the lavad Suit No.674 of 2002 has been decreed in favour of the respondent No.1 Bank, allowed the application below Exh.18 and thereby, the suit being Commercial Civil Suit No.175 of 2019 was dismissed as having barred by Section 166 of Co-operative Societies Act, 1961.
11. On the basis of the aforesaid order dated 8.1.2022, when the same was produced before the Co-operative Tribunal, even the Co-operative Tribunal dismissed the appeal preferred by the petitioner by impugned order dated 16.3.2023, by taking note of the fact that there is an admission on the part of the petitioner before the Civil Court at Vadodara in Commercial Summary Civil Suit No.175 of 2019 that the petitioner is the member of the bank and therefore, the Civil Court does not have Page 6 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined jurisdiction to adjudicate the dispute between the petitioner and respondent Bank and on the basis of the aforesaid fact coupled with other reasons stated in the order, Appeal No.645 of 2006 preferred by the petitioner was rejected. Being agreed by the aforesaid order dated 16.3.2023, the petitioner has preferred this petition.
12. Learned advocate Mr. D.K. Puj appearing for the petitioners submitted that the appeal preferred by the petitioners being Appeal No.645 of 2006 was against the order dated 30.6.2006 passed by Board of Nominees, Vadodara in Lavad Suit No.674 of 2002 and therefore, the Tribunal was required to examine the validity of the order dated 30.6.2006 passed in Lavad Suit No.674 of 2002 and could have not considered any so-called admission on the part of the petitioner which has come much after the aforesaid lavad suit was decided. 12.1 Learned advocate Mr. D.K. Puj further Page 7 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined submitted that while allowing the suit preferred by the respondent No.1 Bank vide order dated 30.6.2006 though an issue was framed about jurisdiction, the aforesaid issue was never decided by the Tribunal and therefore, the Tribunal completely overlooked the aspect of jurisdiction which has remained undecided by the Board of Nominees and considered the subsequent so-called admission by the petitioner and therefore, the impugned order is erroneous, bad and requires to be quashed and set aside.
13. Learned senior advocate Mr. Parikh appearing with learned advocate Mr. Kishan Dave for the respondent Bank submitted that the application below Exh.18 was submitted by the present petitioner himself. He himself conceded before the Civil Court that he is the member of respondent No.1 bank. Learned Senior Counsel Mr. Parikh further pointed out from the application below Exh.18 submitted by the petitioner before the Civil Court, Vadodara that in this entire Page 8 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined application, there is no reference about Appeal No.645 of 2006 preferred by the petitioners before the Co-operative Tribunal to indicate that the order dated 30.6.2006 in Lavad Suit No.674 of 2002 was challenged by the petitioner. In absence of there being any averment indicating that the order dated 30.6.2006 whereby the Lavad Suit No.674 of 2002 was allowed, was under challenge, the Civil Court was kept in dark by the petitioner himself and therefore, once upon the petitioner's application, the suit was held to be without jurisdiction, the petitioner cannot take a contrary stand before this Court, while challenging the impugned order and say that it is the Civil Court which can have the jurisdiction and not the Board of Nominees. He submitted that the petitioner has taken a stand before Civil Court as well as Board of Nominees that both the forums do not have jurisdiction to adjudicate the issue on hand. He submitted that once the petitioner's application about Page 9 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined jurisdiction is entertained by the Civil Court, the same would amount to admission and therefore, in view of judgment of the Hon'ble Supreme Court in case of Sitaramacharya (Dead) through Legal Representatives Versus Gururajacharya (Dead) through Legal Representatives reported in (1997) 2 SCC 548, even if the aforesaid admission cannot be said to be conclusive proof of the matter, the same would operate as estoppel against the present petitioner.
13.1 By relying upon the aforesaid judgment, learned senior advocate Mr. Parikh submitted that when the petitioner has contested both the suits before the Board of Nominees as well as Civil Court on the ground of jurisdiction stating that the relevant forum does not have the jurisdiction, the respondent Bank cannot be non-suited. He submitted that therefore, on the basis of admission of the petitioner, when the suit has been dismissed and Board of Nominees Page 10 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined has already decreed the suit in favour of the petitioner, the tribunal was justified in rejecting the appeal preferred by the petitioner by taking note of the order dated 8.1.2020 passed below Exh.18 in Summary Civil Suit No.175 of 2019 and thereby, rejecting the Appeal No.645 of 2006.
13.2 Learned senior advocate Mr. Parikh also pointed out that the decree of the Civil Court would act as res-judicata against the present petitioner and therefore, now the petitioner cannot take benefit of the decree which is in his favour to challenge the jurisdiction of Board of Nominees on that ground. 13.3 Learned senior advocate Mr. Parikh also submitted that in a petition under Article 227 of the Constitution of India, the petitioner cannot be permitted to take two contrary stands and that also with a view to avoid the jurisdiction of the Board of Nominees before which not only the suit was proceeded and Page 11 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined decreed in favour of the petitioner but even the appeal is also dismissed. By making the aforesaid submissions, he prayed for dismissal of this petition.
14. I have heard learned counsels appearing for the respective parties and perused the record. On perusal of the record, I found that it is true that the Board of Nominees has vide order dated 30.6.2006 decided the Lavad Suit No.674 of 2002 in favour of the respondent No.1 bank and it is also equally true that while deciding the Lavad Suit No.674 of 2002 though issue No.2 was framed in respect of jurisdiction, the aforesaid issue remained undecided. However, once the aforesaid judgment was challenged by the petitioner before the Co-operative Tribunal, it was the duty of the petitioner to state in application below Exh.18 before the Civil Court placing the correct facts on record. The petitioner did not state anything about the pendency of appeal in an application below Exh.18 and admitted the fact that he is a member Page 12 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined of the respondent No.1 Bank and also submitted that Lavad Suit No.674 of 2002 has been decreed in favour of the respondent Bank vide order dated 30.6.2006. When the petitioner himself did not disclose anything about pendency of Appeal No.645 of 2006 before the Civil Court at Vadodara, the Civil Court, Vadodara based on the aforesaid application below Exh.18 dismissed the suit preferred by the respondent No.1 on the ground that it is the Board of Nominees which is having jurisdiction to adjudicate the dispute between the parties. In fact, the petitioner's specific prayer in application below Exh.18 was that it is not the Civil Court and only Board of Nominees which is having jurisdiction to adjudicate the dispute and therefore, the suit was decreed against the bank - respondent No.1 herein, on the basis of aforesaid application preferred by the petitioner.
14.1 When the aforesaid order dated 8.1.2020 passed by the Civil Court Vadodara in Summary Page 13 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined Civil Suit No.175 of 2019 was placed before the Co-operative Tribunal, considering the aforesaid admission of the petitioner, the appeal was dismissed by the Board of Nominees, Vadodara. While dismissing the appeal preferred by the petitioner, the Board of Nominees has also given other cogent reasons but the petition was mainly contested by learned advocate Mr. Puj only on one ground that though the Civil Court is having jurisdiction to decide the dispute and though the issue in respect of same was framed by the Board of Nominees, the same was not decided by the Board of Nominees and ignoring that vital aspect only on the basis of order dated 8.1.2020 passed below Exh.18 in Commercial Summary Civil Suit No.175 of 2019, the Tribunal has rejected the appeal preferred by the petitioner. 14.2 Considering the judgment of the Hon'ble Supreme Court in case of Sitaramacharya (Supra) relied upon by learned senior counsel Mr. Parikh whereby a view is taken that an admission by the Page 14 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined party may not be a conclusive evidence but still the same would operate as estoppel against the person who has admitted the fact in the instant case. In view of aforesaid judgment, when the petitioner himself has given an application before the Civil Court at Vadodara and specifically stated that he was the member of the respondent bank and therefore, in view of order dated 30.6.2006 passed in Lavad Suit No.674 of 2002, the Civil Court would not have jurisdiction to adjudicate the dispute and the same is only with Board of Nominees, the petitioner cannot challenge the order dated 16.3.2023 passed by the Co-operative Tribunal dismissing the appeal on the basis of aforesaid admission of the petitioner.
14.3 Since the order dated 16.3.2023 has not been challenged on any other ground and no other submissions are made except for the submissions recorded herein above, I don't see any illegality committed by the Co-operative Tribunal while passing the order dated 16.3.2023 Page 15 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023 NEUTRAL CITATION C/SCA/7267/2023 ORDER DATED: 01/11/2023 undefined and thereby, dismissing the appeal preferred by the petitioner. In view of above observations and discussions, the present petition is required to be dismissed and the same is dismissed accordingly. Notice is discharged. No order as to costs.
(NIRZAR S. DESAI,J) Pallavi Page 16 of 16 Downloaded on : Mon Nov 06 20:34:24 IST 2023