Gujarat High Court
Janta Commercial Cooperative Bank ... vs Lailaben D/O Ramjanali Vaidya And W/O ... on 17 November, 2025
NEUTRAL CITATION
C/SCA/2074/2017 ORDER DATED: 17/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2074 of 2017
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JANTA COMMERCIAL COOPERATIVE BANK LIMITED
(IN LIQUIDATION)
Versus
LAILABEN D/O RAMJANALI VAIDYA AND
W/O IMTIAZBHAI NANJIBHAI LAKHANI & ORS.
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MS SURBHI BHATI AGP for the Respondent(s) No. 5,6
MR AFTABHUSEN ANSARI for the Respondent(s) No. 3,4
MR.WASIM M PATHAN(6802) for the Respondent(s) No. 1
REFUSED SERVED (N)(10) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 17/11/2025
ORAL ORDER
1. Rule. Learned advocates appearing for the parties waive service of notice of rule.
2. By way of the present petition under Articles 14, 19(1)(g) and 300-A of the Constitution of India, the petitioner has prayed for following relief, "(A) A writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction be issue to
(i) quash and set aside impugned order dated 12.09.2016 passed by respondent No.5 as well as impugned order dated 29.10.2016 passed by respondent No.5 and further be pleased to set aside the entry no.4377;
(ii) direct respondent No.6 to initiate necessary action against respondent No.5 for Page 1 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined deliberately and willfully passing illegal order against the provision of law; (B) Pending the admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the implementation execution and operation of the impugned order dated 12.09.2016 passed by respondent No.5 as well as impugned order dated 29.10.2016 passed by respondent No.5;
(C) xxx xxx xxx."
3. Heard learned advocate, Mr. Dipak Dave for the petitioner and learned AGP Ms. Surbhi Bhati for the respondent nos.5 and 6.
4. Learned advocate, Mr. Dave submitted that the impugned order is challenged before this Court only on the ground of violation of principle of natural justice as at the time of passing impugned order, sufficient opportunity of being heard was not provided, which resulted into violation of natural justice. He referred to the facts of the case and submitted that the petitioner is a Bank, who had granted loan facility to the respondent no.1 herein, however as she failed to clear the outstanding dues of the bank, recovery proceedings were initiated by filing Summary Lawad Suit No.654 of 2002, which came to be decreed in favour of the petitioner by judgment and decree dated 13.01.2003 and the respondent no.1 and other defendants were directed to pay an amount of Rs.7,65,894/- along with interest @ 22% from 01.01.2002 and pursuant to the said judgment and decree, recovery Page 2 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined proceedings were initiated by the bank. He submitted that however subsequently after the passing of the decree, the respondent nos.1 and 2 in connivance with each other have field Special Civil Suit No.22/2004 for declaration and permanent injunction with a sole intent to frustrate the claim of the petitioner and as soon as the petitioner came to know about filing of said suit, the petitioner preferred an application for impleading them as party defendant, which was allowed by the court concerned and, thereafter, the application for injunction was heard, wherein the order came to be passed directing the parties to maintain status quo with regard to the property in question despite an order of attachment and filing of execution petition. He submitted that despite above facts, the respondent no.1 had transferred the said property in favour of the respondent nos.3 and 4 by executing registered sale deed and on the strength of the registered sale deed, Entry No.4377 came to be mutated in the revenue record. He submitted that as soon as the fact of mutation of entry and certification thereof came to the knowledge of the petitioner, they approached the learned Deputy Collector, who after considering the material available on record, remanded the matter back to learned Mamatdar for fresh consideration by an order dated 27.06.2016 and, thereafter, the matter was taken up for consideration and the notice was issued Page 3 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined upon the petitioner informing them about the date fixed on 13.09.2016, however on account of declaration of public holiday on 13.09.2016, hearing of the said application was preponed and kept on 12.09.2016 and without informing the petitioner about the same, the impugned order came to be passed in absence of the petitioner dismissing the application preferred by the petitioner, which is challenged by filing present petition directly before this Hon'ble Court.
5. Learned advocate, Mr. Dave submitted that if the Hon'ble Court would make cursory glance upon the operative part of the impugned order, in that event, it is evident that the ground of rejection of the said application is on account of non- supplyment of registered lease deed, however if the decree is drawn by the competent civil court, in that event, mortgage deed is not required to be supplied to the authority concerned and the revenue authority has to cancel the mutation of entry, however here in the present case, without providing opportunity to the petitioner, the said application is rejected, therefore, there is clear violation of principle of natural justice. In support of this submission, learned advocate has relied upon the decision of the Hon'ble Supreme Court in case of Radha Krishan Industries Vs. State of Himachal Pradesh & Ors., reported in (2021) 6 SCC 771; and in case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Page 4 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined Ors., reported in (1998) 8 SCC 1. He submitted that in case of Whirlpool Corporation (supra), the Hon'ble Supreme Court has observed that if the principle of natural justice is violated, in that event, writ is maintainable despite having alternative remedy. It is, therefore, urged that considering the above facts of the case, the impugned orders may be quashed and set aside and the matter may be remanded back for fresh consideration after providing opportunity to all concerned.
6. On the other hand, learned AGP Ms. Bhati has opposed the present petition and submitted that no error of law has been committed by the authority while passing impugned order, therefore, this Hon'ble Court may not interfere with the same. She submitted that in fact, the notice issued by the authority has been duly served upon the petitioner and the petitioner has failed to produce the registered mortgage before the authority and that was the reason for rejection of the said application as the petitioner was asked to submit the said document. It is, therefore, urged that considering the facts of the case, the present petition may be rejected.
7. Having heard learned advocates appearing for the parties and having gone through the material available on record, it is found out that main facet of submission canvassed by learned advocate for the petitioner is that the impugned order is Page 5 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined passed in absence of the petitioner without providing opportunity to them, therefore, the same is in violation of principle of natural justice and requires to be quashed and set aside by remanding the matter back.
8. It is found out from the facts of the case that the respondent no.1 herein had availed loan facility from the petitioner - bank and as the outstanding dues could not be repaid, recovery proceedings were initiated by the petitioner, wherein decree came to be passed in favour of the petitioner and subsequently, execution proceeding was also initiated. However in the meantime, the respondent nos.1 and 2 in connivance with each other have instituted suit, wherein they have obtained an order of injunction and subsequently, the said property has been transferred in favour of the respondent nos.3 and 4 by executing registered sale deed and on the strength of the said registered sale deed, Entry No.4377 came to be mutated in the revenue record and it has also been certified by the revenue authority. Thereafter as soon as the petitioner came to know about the mutation and certification of the said entry, he approached the learned Deputy Collector challenging the said order, who remanded the matter back for fresh consideration and, thereafter, the learned Mamlatdar concerned had taken up the said proceedings and issued notice upon him informing about the date fixed on Page 6 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined 13.09.2016, however on account of declaration of public holiday on 13.09.2016, hearing of the application was preponed and fixed on 12.09.2016 and admittedly, no notice was issued upon the petitioner informing the petitioner about preponement of the date, as a result of which, the petitioner could not remain present and in their absence, the application preferred by the petitioner came to be rejected on the ground of non-supplyment of the registered mortgage deed, therefore, the said order has been assailed by the petitioner by preferring present petition.
9. Thus considering the above facts of the case, there is no dispute about the fact that the impugned order came to be passed in absence of the petitioner. Not only that, the petitioner was not informed about the preponment of the date fixed by the authority concerned. Therefore in my considered opinion, the impugned orders cannot sustain.
10. Thus now the question that arose for consideration of this Hon'ble Court is as to whether when there is alternative efficacious remedy available under the law challenging the impugned order, in that event, the present petition, which is filed directly before this Court challenging the impugned order without availing alternative remedy, can be entertained or not. In this connection, it is required to be mentioned that the law on the alternative remedy is well Page 7 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined established and the principle of law which is reiterated is that the writ jurisdiction of the High Court is not to be exercised when an efficacious alternative remedy is available. It is a policy convenience and discretion of the Court. It is undoubtedly within the Courts discretion to grant relief under Article 226 of the Constitution of India, however, the court would be slow in interfering if there is an adequate efficacious remedy. At this stage, I would be profitable to refer to the decision of the Hon'ble Supreme Court, upon which reliance has been placed by learned advocate for the petitioner in case of Whirlpool Corporation (supra), wherein the Hon'ble Supreme Court has held that the existence of the alternative remedy is not Constitutional bar to the High Court's jurisdiction but, is a self imposed jurisdiction where in three contingencies the alternative remedy would not operate as a bar namely (1) where the writ petition seeks enforcement of any Fundamental Rights, (2) where there is violation of principles of natural justice, or (3) Where the order or the proceedings are wholly without jurisdiction or the vires of an act is challenged. The observations made in the said decision read as under, "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for Page 8 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
11. From the above decision, it is clear that the power available to the High Courts under Article 226 of the Constitution of India cannot be curtailed, except when it is consciously Page 9 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined restricted by the Court itself, in cases where an alternative, efficacious, statutory remedy is available. This is more of a self-imposed restriction than a bar. Even this restriction need not be imposed in certain contingencies, such as the violation of the principles of natural justice, where the vires of an Act have been challenged and where the proceedings are wholly without jurisdiction. The petitioner, if has an alternative efficacious remedy for resolution of the dispute, the High Court, is not to, as a rule of policy, convenience and discretion rather than a rule of law, should relegate the parties to the alternative remedy. This undoubtedly could not mean that it has no powers to grant the reliefs despite the existence of alternative remedy, where the three contingencies, detailed above in case of Whirlpool Corporation (supra) exists. These power of prerogative writ being the plenary powers in nature, the same are not limited by any other provisions of the Constitution. The Court has a discretion to entertain or not entertain writ petition and it will have to ascertain on the strength of the material available as to whether it requires to exercise the powers under Article 226 of the Constitution of India. In the event of effective and efficacious remedy available, the Court normally would not exercise the same. The alternative remedy would also not to operate as a bar at-least in those three contingencies where, Page 10 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025 NEUTRAL CITATION C/SCA/2074/2017 ORDER DATED: 17/11/2025 undefined the writ petition is filed for enforcement of Fundamental Rights or when there is violation of principles of natural justice or the order of proceedings are wholly without jurisdiction. Thus as stated above, it is not in dispute that the impugned order is passed in absence of the petitioner, which clearly goes on to show that opportunity has not been provided to him. Therefore in view of the above observations, I am inclined to remand the matter to the respondent no.5 herein for reconsideration as I do not find appropriate to throw away this petition on the ground of availability of alternative remedy and that too after almost eight years from the date of filing.
12. In the result, the present petition stands allowed in part. The impugned order dated 12.09.2016 passed by respondent No.5 is hereby quashed and set aside and the matter is remanded back to the respondent no.5 herein for fresh consideration after providing opportunity to both the parties. It is open for both the parties to lead evidence in their support. Rule is made absolute to the aforesaid extent. Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 11 of 11 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Wed Nov 19 2025 Downloaded on : Thu Nov 20 00:20:27 IST 2025