Bombay High Court
Cosmos Co-Op Bank Limited vs Vijay Harkishandas Shah And Ors on 29 January, 2024
Author: Gauri Godse
Bench: Gauri Godse
Digitally
signed by
VARSHA
VARSHA VIJAY
VIJAY RAJGURU
RAJGURU Date:
2024.02.15
14:31:35
+0530
212-wp-4963-1997.doc
varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4963 OF 1997
Cosmos Co-operative Bank Limited ... Petitioner
vs.
Vijay Harkishandas Shah and Ors ... Respondents
Mr. A.Y. Sakhare a/w. R.S. Mirpury i/b. Jitendra Patil, for Petitioner.
M/s. R.K. Associates, for Respondent No.1.
CORAM : GAURI GODSE, J.
DATED : 8th FEBRUARY, 2024
P.C. :-
1. This petition challenges the order dated 7 th October 1997
passed in Appeal No. 394 of 1995, allowing the appeal preferred by
respondent nos. 1 and 2. By the said order an interim order passed
pending the dispute against respondent nos. 1 and 2 was set aside
and the injunction order was vacated. By the impugned order
respondent no.1 was also discharged as a surety. Hence, the
petition was preferred by the original disputant, Co-operative Bank
of Ahmedabad. The present petitioner, the Cosmos Co-operative
Bank Ltd is substituted in place of original disputant as the original
disputant bank is merged with Cosmos Co-operative Bank. At the
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time of admission of the writ petition, the impugned order was
stayed.
2. The learned senior counsel for petitioner submitted that the
original dispute was filed against the principal borrower, two
guarantors and the Cooperative Societies, where the secured flats
were situated. By way of consent award, the dispute was partially
allowed against the principal borrower and one of the guarantors i.e.
original opponent nos. 1 and 2 by judgment and award, dated 6 th
December 1994. Following is the operative order of the Award:
"(1) Opponent Nos. 1 and 2 are jointly and severally
ordered to pay and do pay Rs. 10,81,787.30 with interest
at the rate of 18% per annum from 26-6-1993 on the
principal amount of Rs. 8,00,000/- till full realisation.
(2) Opponents are also ordered to pay costs of this
dispute Rs. 3000/-.
(3) Ex-parte injunction with respect to property of Pushpa
Kunj Co-operative Housing Society Ltd., is hereby
vacated. Dispute against Opt. No. 4 dismissed.
(4) Opponents are ordered not to transfer possession and
title of the property with respect to which ex-parte
injunction was granted till satisfaction of Award.
(5) Opponents to pay above amount as under:
(a) Opponents to pay Rs. 12, 000/- p.m. from December
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1994 till May 1995. First such instalment is payable on or
before 25.12.94.
(b) Opponents to pay Rs. 20,000/- p.m from June 1995
till November 1995. First such instalment is payable on
or before 10-6-1995.
(c) Opponents to pay Rs. 28,000/- p.m from December
1995 till May 1996. First such instalment is payable on
or before 10-12-1995.
(d) Opponents to pay Rs. 36,000/- p.m from June 1996
till November 1996. First such instalment is payable on
or before 10-6-1996.
(e) Opponents to pay Rs. 45,000/- p.m. from December
1996 till May 1997. First such instalment is payable on
or before 10-12-1996.
(f) Opponents to pay Rs. 50,000/- p.m from June 1997
till satisfaction of Award. First such instalment is
payable on or before 10-6-1997.
(6) In case of 3 defaults for payment of instalments,
Disputant is entitled to recover whole amount then
due."
3. The learned senior counsel for petitioner submits that,
however, the dispute was kept pending so far as opponent nos. 2, 3
and 5 are concerned. He further submits that, opponent no. 3 is
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respondent no.1 herein i.e. one of the guarantors and opponent
no.5 is respondent no.2 where the secured flats is situated; the
original opponent no.4 is respondent no.5-Cooperative Housing
Society where the opponent no.2 was holding a flat. According to
the petitioner after the partial award was passed on 6th December
1994, the Cooperative Court had allowed the interim application by
order dated 7th September 1995 passed in four different case. The
present petition arises out of case no. CCI/706/1993. By the order of
the Cooperative Appellate Court, the order dated 7 th September
1995 is quashed and set aside and injunction is vacated. The order
dated 7th September 1995 is annexed as Exhibit-A to the petition
and the operative order reads thus:-
ORDER
"Ex-parte injunction confirmed against the Opponent
Mr. V.H. Shah and Gulestan Go-operative Housing
Society Ltd.
No Order as to costs."
4. Learned senior counsel for the petitioner states on
instructions that the original dispute is still pending as the consent
award was only against the original opponent nos. 1 and 2. He
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further on instructions states that the amount is not yet recovered by
the petitioner bank.
5. Perusal of the record shows that ex-parte injunction which is
confirmed by an order dated 7th September 1995, is not on record.
Hence, the petitioner is permitted to annex the copy of ex-parte
order which is referred in the operative order dated 7 th September
1995 to enable the petitioner to support the submission that the
injunction order is required to be confirmed at this stage.
6. Stand over to 22nd February 2024.
(GAURI GODSE, J.)
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