Neetaben U Chokshi, Thro' Poa ... vs Gujarat State Financial ...
2021 Latest Caselaw 5182 Guj

C/LPA/517/2010                                                               CAVJUDGMENTDt: 20.04.2021
     NEETABEN U CHOKSHI, THRO' POA FALGUNBHAI PATEL Versus GUJARAT STATE FINANCIAL CORPORATION & 1 other(s)




                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

1.                 R/LETTERS PATENT APPEAL NO. 517 of 2010
                                       In
                   R/SPECIAL CIVIL APPLICATION NO. 2057 of 2000

                                                    With

2.                  R/LETTERS PATENT APPEAL NO. 682 of 2010
                                      In
                    SPECIAL CIVIL APPLICATION NO. 2057 of 2000

                                                    With

3.                  R/LETTERS PATENT APPEAL NO. 683 of 2010
                                      In
                    SPECIAL CIVIL APPLICATION NO. 2057 of 2000



HONOURABLE DR. JUSTICE VINEET KOTHARI

and

HONOURABLE MR. JUSTICE BIREN VAISHNAV

==================================================================

1 Whether Reporters of Local Papers may be allowed to see the Yes judgment ?

2       To be referred to the Reporter or not ?                                                  Yes

3       Whether their Lordships wish to see the fair copy of the                                 Yes
        judgment ?

4       Whether this case involves a substantial question of law as to                           Yes

the interpretation of the Constitution of India or any order made thereunder ?

==================================================================

1. NEETABEN U CHOKSHI, THRO' POA FALGUNBHAI PATEL Versus

1. GUJARAT STATE FINANCIAL CORPORATION

2. SHRI P M PATEL Through Legal Representatives ==================================================================

C/LPA/517/2010 CAVJUDGMENTDt: 20.04.2021 NEETABEN U CHOKSHI, THRO' POA FALGUNBHAI PATEL Versus GUJARAT STATE FINANCIAL CORPORATION & 1 other(s)

Appearance:

MR BAIJU JOSHI, ADVOCATE For SHIRISH JOSHI(379) for the Appellant(s) No. 1

MR MIHIR THAKORE, SENIOR COUSNEL with MR RD DAVE for the Respondent No.1

MR RUSHI BAROT, ADVOCATE for MR BHARAT R PANDYA(543) for the Respondent(s) No. 2

MR VISHAL K SEVAK(5237) for the Respondent(s) No. 2 ==================================================================

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 20/04/2021

CAV JUDGMENT (PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. The present set of three Intra Court Appeals are directed against the

common Judgement and Order of learned Single Judge (Coram: Hon'ble

Mr. Justice Jayant Patel) dated 27.1.2010 whereby the Special Civil

Application No.2057 of 2000 [Neetaben U.Chokshi vs. Gujarat State

Financial Corporation (GSFC) and Ors.] came to be partly allowed.

2. Ms. Neetaben U. Chokshi was a Guarantor/Surety for the borrower

M/s. Disha Agro Industries Ltd., who had taken loan from GSFC and she

mortgaged her Residential Bungalow situated at 11, Rudravadan

Bungalows, Near Rozi School, Sun and Step Club Road, Thaltej,

Ahmedabad, by way of collateral security with the GSFC as the

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Guarantor. The borrower Company M/s. Disha Agro Industries defaulted

in repayment of loan to GSFC and therefore, legal action under Section

29 of the State Financial Corporation Act, 1951 (for short "the SFC Act)

was initiated against the Petitioner/Surety on 15.2.2000 calling upon her

to pay the outstanding amount of the said loan to the extent of Rs.77.34

lakhs.

3. It appears that without proceeding against the mortgaged assets of

the borrower Company itself, the GSFC directly proceeded under Section

29 of the Act against the aforesaid Residential Bungalow of the

Petitioner/Surety and took over the possession of the same under Section

29 of the SFC Act on 24.1.2001 (vide Annexure R-10 Certificate of

GSFC dated 22.3.2005) and sold the said property to the Respondent -

Purshottambhai Mafatlal Patel for a sum of Rs.20.25 lakhs on 22.2.2005

and possession of the said bungalow was handed over to the Auction

Purchaser on 17.3.2005 and the Sale Deed was also executed and

registered on 3.5.2005.

4. The Writ Petition was filed by Petitioner challenging such

impugned action and the Petition was also amended and the said Auction

Purchaser was also impleaded in the Writ Petition and prayer for setting

aside the Sale Deed executed in his favour was also added. The Petition

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came to be partly allowed by learned Single Judge as stated above.

5. The case before us in the present three Intra Court Appeals is

interesting in the sense that all the three concerned parties have appealed

against the same Order of learned Single Judge, the

Petitioner/Appellant/Surety, the Auction Purchaser - Purshottam M. Patel

and GSFC itself. Thus, none of these parties to the lis was satisfied with

the Order passed by the learned Single Judge.

6. The reason for the same appears to be that, while holding that the

action of the GSFC to sell the residential house of the

Petitioner/Appellant/Surety - Neetaben U. Chokshi was not in

accordance with law laid down by the Hon'ble Supreme Court in the case

of Karnataka State Financial Corporation vs. N. Narasimahaiah &

Ors. [(2008) 5 SCC 176] in which the Hon'ble Supreme Court held that

the action under Section 29 of the SFC Act cannot be taken against the

mortgaged property of the Guarantor/Surety, but it can be taken only

against the mortgaged assets of the borrower, but instead of setting aside

the sale made in favour of the Respondent - Purshottam M. Patel, (now

represented by his Legal Representative after his death on 3.1.2021 and

who were allowed to represent vide Order passed today in Civil

Application No.1 of 2021) as a consequential relief, the learned Single

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Judge made such setting aside of sale and the restoration of the

possession of the residential house in question to the Petitioner/Appellant

only subject to the condition of her depositing a sum of Rs.38.25 lakhs.

The said amount of Rs.38.25 lakhs was to comprise of:-

(i) Rs.20.25 lakhs paid by the Auction Purchaser + (ii) Rs.11

lakhs spent by purchaser Purshottam M. Patel on renovation of

the house and (iii) Rs.5 lakhs as compensation to be paid by

GSFC to the auction purchaser for return of possession in

consequence of setting aside of the sale.

7. The learned Single Judge besides the aforesaid direction proceeded

to hold in the Order impugned before us that even after such conditional

Order for re-entrustment of the residential property to the

Petitioner/Appellant is implemented, the Respondent - GSFC would still

be free to take action against her under Section 31 of the SFC Act by

approaching the District Judge for a Decree against the said surety and in

execution of such Decree, the property in question could be again sold in

future.

8. It was also brought to our notice that during the pendency of the

proceedings, the GSFC is said to have filed a Suit under Section 31 of

the SFC Act in the year 2008 when the proceedings were pending before

the learned Single Judge and the said Suit is still pending trial.

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9. The operative part of the order dated 27.1.2010 of learned Single

Judge in paragraphs 23 and 24 are quoted below for ready reference:

"23.In view of the aforesaid, the impugned action of the Corporation under Section 29 of the Act for taking over the possession of the property from the petitioner and further action of sale of the property to respondent No.2 are quashed and set aside on condition that the petitioner deposits the amount of Rs.33.25 lac with the respondent Corporation within a period of two months from today. It is further directed that after the condition is complied with by the petitioner of deposit of the amount of Rs.33.25 lac with the Corporation, the Corporation shall pay the amount of Rs.38.25 lac (by adding the amount of Rs.5 lac to be paid by it to respondent No.2) and simultaneously shall take over the possession of the property from respondent No.2 and the said exercise shall be completed within a period of two months from the date of deposit of the amount of Rs.33.25 lac by the petitioner. The Corporation thereafter shall also hand over the possession of the property received from respondent No.2 to the petitioner within one week from the receipt of the possession.

The Corporation shall be at liberty to take action against the petitioner and her properties, including the property in question under Section 31 of the

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Act or under any other law, if available. The petitioner shall also be at liberty to file suit for recovery of the amount against respondent No.2, if, as per the petitioner, the expenses for renovation and construction is less than Rs.11 lac and the suit could be filed for the amount, for which no actual expenses are incurred by respondent No.2. At this stage, respondent No.2 shall be at liberty to raise all contentions, including the aspect of expenses already incurred as claimed in the present proceedings and the concerned Court shall be at liberty to take independent view of he matter on the basis of the material available before it. The Corporation shall also be at liberty to set off the amount of Rs.5 lac from the fund which may be from the person and the properties of the petitioner, out of the remedy, which may be resorted to under Section 31 of the Act or any other law, if available.

24.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. Direct service is permitted."

10. The position of law that the Respondent - GSFC could not proceed

under Section 29 of the SFC Act against the mortgaged property of the

surety but could only proceed under Section 31 of the SFC Act is now

beyond the pale of doubt in view of the Judgement of Hon'ble Supreme

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Court in the case of Karnataka State Financial Corporation (supra)

which view was confirmed by the Hon'ble Supreme Court later on in the

case of Subhransu Sekhar Padhi vs. Gunamani Swain & Ors. (AIR

2015 SC 542). The relevant extracts from the said two Judgements are

quoted below for ready reference:

(A) Karnataka State Financial Corporation vs.

N. Narasimahaiah & Ors. [(2008) 5 SCC 176]

"The heading of Section 29 of the 1951 Act states "Rights of Financial Corporation in case of default". The default contemplated thereby is of the industrial concern. Such default would create a liability on the industrial concern. Such a liability would arise when the industrial concern makes any default in repayment of any loan or advance or any installment thereof under the agreement with the Financial Corporation. In the eventualities contemplated under Section 29 of the 1951 Act, the Corporation shall have the right to take over the management or possession or both of the industrial concern. The provision does not stop there. It confers an additional right as the words "as well as" are used which confer a right on the Corporation to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Corporation.

Thus, Section 29 of the Act nowhere states that the Corporation can proceed against the surety even if

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some properties are mortgaged or hypothecated by it. The right of the Financial Corporation in terms of Section 29 of the Act must be exercised only on a defaulting party. There cannot be any default as is envisaged in Section 29 by a surety or a guarantor. The liabilities of a surety or the guarantor to repay the loan of the principal debtor arises only when a default is made by the latter. Although the words "as well as" occurring in Section 29 confer two different rights, such rights are to be enforced against the same person viz. the industrial concern.

It is true that Section 29(1) of the 1951 Act speaks of guarantee. But such a guarantee is meant to be furnished by the Corporation in favour of a third party for the benefit of the industrial concern. It does not speak about a surety or guarantee given in favour of the Corporation for the benefit of the industrial concern. In this regard, it would also be significant to notice that Section 29(4) of the 1951 Act which lays down appropriation of the sale proceeds only refers to "industrial concern" and not a "surety" or "guarantor".

However, what can be done by invoking Section 29 of the 1951 Act can inter alia be done by invoking Section 31 thereof also but therefore a different procedure has to be adopted. Section 31 also provides for a relief against a surety and is not confined to the industrial concern alone. Clause (aa) to Section 31 (1) has been inserted by Act 43 of 1985. Prior thereto

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even Section 31 could not have been taken recourse to against a surety. Further, Section 32 (1-A) [inserted by Act 43 of 1985] lays down a procedure when Section 31 (1) (aa) is invoked. Section 32 (4-A) [inserted by Act 43 of 1985] empowers the Court to forthwith order the enforcement of the liability of the surety is no cause is shown on or before the date notified by the parties. However, in the event, a cause is shown upon making an investigation as provided for under Section 32(6), a final order can be passed in terms of sub-section (7) thereof.

Thus, the legislative intent is manifest. The intention of Parliament in enacting Sections 29 and 31 of the Act was not similar. Whereas Section 29 of the Act consists of the property of the industrial concern, Section 31 takes within its sweep both the property of the industrial concern and as that of the surety. None of the provisions control each other. Parliament intended to provide an additional remedy for recovery of the amount in favour of the Corporation by proceeding against a surety only in terms of Section 31 of the Act and not under Section 29 thereof.

The contention that an implied power of the Corporation to proceed against a surety or guarantor should be read in Section 29 of the basis of the principle that a construction which effectuates the legislative intent and purpose must be adopted, is not sustainable. A statutory authority may have an

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implied power to effectuate exercise of substantive power, but the same never means that if a remedy is provided to take action against one in a particular manner, it may not only be exercised against him but also against the other in the same manner. In the absence of any express provision in the statute, a person being in lawful possession cannot be deprived thereof by reason of default on the part of a principal borrower."

                 (B)       Subhransu Sekhar Padhi vs. Gunamani
                 Swain & Ors. [AIR 2015 SC 542]

8. The High Court rested its judgment rightly on a decision of this Court reported in Karnataka State Financial Corporation v. N. Narasimahaiah & Others, (2008) 5 SCC 176. In that case, this Court categorically held[1] that it is only the properties of the defaulter which can be proceeded against under Section 29 of the Act but not against the properties of the third parties whether they are guarantors, mortgagors etc.

9. A submission is sought to be made that the impugned judgment is contrary to the ratio of the decision of this Court in A.P. State Financial Corporation v. M/s. GAR Re-rolling Mills & Another, (1994) 2 SCC 647. In our opinion, the said decision has no application to the facts of the present

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case. It was a case where the APSFC initially proceeded against Section 31 of the Act against the properties mortgaged by the borrower (industrial concern) and obtained an order/decree but subsequently invoked the powers under Section 29. The question before this Court was - whether the Financial Corporation set up under Section 3 of the State Financial Corporation Act is entitled to take recourse to the remedy available to it under Section 29 of the Act even after having obtained an order or a decree after invoking the provisions of Section 31 of the Act but without executing that decree/order? This Court held[2] that it is always open to the State Financial Corporation to resort to such a course of action.

10. Therefore, we do not see any merit in the appeal.

11. In the present Appeal being Letters Patent Appeal No.517 of 2010

filed by the Surety - Neetaben U.Choksi through her brother and Power

of Attorney Holder - Falgunbhai Patel, the co-ordinate Bench of this

Court directed the Appellant to deposit a sum of Rs.20.25 lakhs with the

Respondent - GSFC which the Appellant had deposited subject to the

decision of this Appeal.

12. Mr.Baiju Joshi, learned counsel appearing for the

Petitioner/Appellant/Surety - Neetaben U. Choksi vehemently submitted

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that the entire action of the Respondent - GSFC in the matter for taking

over the possession of the residential house of the Petitioner/Appellant

was grossly illegal, arbitrary and high handed and in a very surreptitious

manner, the GSFC sold away the Residential House of the

Petitioner/Appellant to Respondent No.2 - Purshottam M.Patel.

13. He submitted that the said action was not only hit by the

Judgements of Hon'ble Supreme Court, as no recovery action against the

said property of the Guarantor could be taken under Section 29 of the

Act, but the manner in which the possession was taken over, throwing

out the residents of the house when the lady of the house was cooking

meals on 24.1.2001 (vide Annexure R-10 Certificate of GSFC dated

22.3.2005) and the manner in which the same was sold to Respondent

No.2 under the garb of so many Advertisements issued by GSFC for

such sale, the learned counsel submitted that the property worth more

than Rs.50 lakhs was sold away to Respondent No.2 for the paltry sum

of Rs.20.25 lakhs, which smacks of underhand dealings and a fraud

played by the authorities of GSFC concerned and Respondent No.2 to

grab the residential house of the Petitioner/Appellant.

14. He drew the attention of the Court towards the general

Advertisement issued by the GSFC on 28.4.2004 without any reference

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to the said residential house of the Petitioner/Appellant in question

which generally indicated that GSFC invites tender for the sale of

residential houses, shops and plots of open land of various types of

units/assets put into parallel/equal security with the Corporation as per

"as is where is basis" as per the provisions of Section 29 of the SFC

Act, Besides industrial units engaged in various fields and a schedule of

dates for inspection of assets was given in the said Advertisement and

also for giving of the tenders and opening of the tenders. By way of a

special note, it was stipulated in the said Advertisement dated 28.4.2004

by GSFC that, "if the proprietor of such units whose possession is been

taken over by GSFC, if they intend to get back the possession of the

units, then before the meeting of the Tender Committee, can also remain

present with their request in the Tender Committee, otherwise the

decision of the Corporation shall be binding on them".

15. The GSFC appears to have written a letter to the

Petitioner/Appellant on 24.12.2004 which was sent through courier and

received by the Appellant on 31.12.2004 and the Appellant gave consent

to purchase her own Residential House from the GSFC, since the

possession was already, taken over on 25.1.2000 (physical possession on

24.1.2001 vide Annexure R-10 Certificate of GSFC dated 22.3.2005), at

the price offered of Rs.20.25 lakhs. Surprisingly, the Respondent -

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GSFC, did not respond to said letter of the Petitioner and during personal

visit of the Appellant in the office of GSFC on 12.1.2005, she was

informed that the GSFC had principally decided that if she deposits

Rs.50 Lacs by Demand Draft within three days (no reason disclosed for

such higher amount demanded against Rs.20.25 Lacs and a short period

of only 3 days given to deposit) then the further action with respect to

your Application shall be taken, failing which, it will be presumed that

you don't want to say anything in this respect. The Petitioner/Appellant

immediately responded by a letter dated 31.1.2005 that she would be

willing to make payment of even Rs.50 Lacs also presumably being

attached emotionally to her property and let the relevant conditions may

be communicated to the Petitioner/Appellant. Inexplicably, the GSFC

responded after 20 days on 21.2.2005 that your letter dated 31.1.2005

came to be submitted before the "Competent Authority of the

Corporation (no details made known, who !) and you may take note

that, your proposal can't be accepted as per the Rules and

Regulations of the Corporation." (again nothing mentioned - What

Rules !!).

16. This letter dated 21.2.2005 might not have even reached the

Petitioner/Appellant by next day, but on the very next date i.e.

22.2.2005, the sale in favour of Respondent No.2 - Purshottam M.Patel

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for the sum of Rs.20.25 Lacs came to be finalized by the GSFC and as

stated above in a very hurried manner, even the possession was taken

over from the Petitioner/Appellant in a high handed and absolutely

inhuman manner and the same was handed over the purchaser within one

month of the sale letter issued to him on 22.3.2005 in jet set speed and a

Registered Sale Deed was also executed on 3.5.2005. Quite a smell of a

Rat !!

17. From this sequence of events, the learned counsel for the

Petitioner/Appellant submitted that the action of the Respondent -

GSFC, a public authority has been not only contrary to law but highly

arbitrary, high handed and whimsical, and therefore, the learned Single

Judge has not only erred in not setting aside the said sale and restoring

the possession of the Petitioner/Appellant without any condition but on

the contrary, further erred, with great respects, in directing the payment

of Rs.38.25 Lacs by the Petitioner/Appellant unnecessarily adding the

sum of Rs.11 Lacs towards the alleged renovation made by the

Purchaser without any proof or document and further a sum of Rs.5

Lacs towards the compensation which was required to be paid by the

GSFC to the Purchaser - Mr.P.M.Patel, even without a claim being

made by him or adjudicated by any Competent Forum in this regard.

That clearly shows that the Auction Purchaser and Authorities of GSFC

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were hands-in-glove for ulterior motives to throw out the

Petitioner/Appellant and her family from the said Residential House and

grabbing that property and transfer the same to the Respondent -

Purshottam M.Patel for a throw away price in the aforesaid surreptitious

and absolutely illegal manner.

18. On the other hand, learned senior counsel for the GSFC Mr.Mihir

Thakore and Mr.Rushi Barot, learned counsel for the Purchaser sought

to defend the action of the Respondent - GSFC and the sale made in

favour of the Auction Purchaser - Purshottam M. Patel and submitted

that despite best efforts made by the GSFC by issuing several

advertisements for sale of the various properties including that of the

present Petitioner/Appellant and persuading the Purchaser - Purshottam

M. Patel to increase his offer of Rs. 19 Lacs to Rs.20.25 Lacs, which he

paid, the learned counsel for the GSFC sought to defend the action of

GSFC and also the Order of learned Single Judge to the extent of

directing the Petitioner/Appellant throughout to deposit the said sum of

Rs.38.25 Lacs.

19. Mr. Mihir Thakore, learned senior counsel appearing for GSFC

though fairly submitted that the law declared by Hon'ble Supreme Court

that the mortgaged property of surety could not be proceeded against

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under Section 29 of the SFC Act by GSFC is binding but he sought to

defend the said sale in question on the ground that in any case the GSFC

could do so, even by taking the recourse under Section 31 of the SFC

Act and, therefore, sale made in exercise of powers by GSFC is not

required to be set aside.

20. He drew the attention of Court towards the public Advertisement

issued by the Respondent - GSFC in Gujarat Samachar (Ahmedabad

Edition) on 1.8.2004 for sale of Residential House in question of which

the English Translation as produced on record is quoted below for ready

reference.

"Beautiful residential bunglow is to be sold, 4 bed room, including health equipment: 11, Rudravan Society, Near Rosery School, Opp.

Someshwar Part-III, Thaltej. Contact- Dy.General Manager, Gujarat State Financial Corporation, Mithakhali, Tel.26463837, 26467893 (Mon to Friday -11 a.m. To 5 p.m.)"

21. The learned counsel for the Purchaser, Mr.Vishal K. Sevak also

submitted that the Purchaser has been trying to settle the dispute with the

Appellant/Surety after the purchase of the said residential house by

payment of compensation to her as would be indicated in the Order

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Sheets of this Appeal also that from time to time and time was sought for

such settlement but since no such settlement finally took place and no

such Settlement Deed was produced before us, we have heard the matter

on merits.

22. In our considered opinion, the impugned action of the GSFC

Authorities in the present case has been absolutely arbitrary and illegal

and, therefore, cannot be sustained from any point of view, on the anvil

of lack of power under Section 29 of SFC Act to do so, as well as on the

ground of fairness and non-arbitrariness in its action which violates

Article 14 of the Constitution of India.

23. The action under Section 29 of the SFC Act against the

Petitioner/Appellant/Surety and her mortgaged residential house as

collateral security was not only per se illegal in view of the law declared

by the Hon'ble Supreme Court and, therefore, the sale was required to be

struck down and set aside only on this ground. There is no merit in the

contention raised before us by Mr.Mihir Thakore, learned senior counsel

for the GSFC that since the GSFC could have resort to Section 31 of

SFC Act for the said property, therefore, the sale made by it in favour of

Respondent No.2 should be saved, because the Suit or action under

Section 31 of the SFC Act initiated by GSFC in the Court of District

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Judge, Ahmedabad is still pending and what may or may not possibly

happen under Section 31 of the SFC Act at a future point of time, cannot

be allowed to justify ex post facto an illegal sale made under Section 29

of the SFC Act at the present moment. The powers of Financial

Institution under Section 29 of the SFC Act and remedy available to it

under Section 31 of the Act operate in different fields and are meant to

be invoked in different circumstances and on fulfillment of different

conditions as enumerated in these two provisions. The said legal

position need not be now dilated much, as the same has been settled by

the aforesaid two judgments of Hon'ble Supreme Court, on which there

was no dispute before us, that the same would apply to the facts of the

present case as well.

24. That as far as the manner of taking over the possession of the said

Residential House by GSFC is concerned, and the manner in which the

same was sold away to the Respondent/Purchaser - Purshottam M. Patel

rejecting the offer of Petitioner/Appellant/Surety herself to pay back on

the same price i.e. Rs.20.25 Lacs which was offered by the Auction

Purchaser and then demanding a much higher price of Rs.50 Lacs for no

valid reason and that too having been accepted by the

Petitioner/Appellant, rejecting the same by an absolutely inexplicable

and opaque reason that the same has not been accepted by the Competent

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Authority of GSFC, and then selling the same property at the said

minimal price of Rs.20.25 Lacs only on the very next day, is beyond the

comprehension of this Court and even a common man cannot

countenance the same. This arbitrariness is writ large on the face of it

and which is not acceptable to this Court, irrespective of the law laid

down that Section 29 could not at all be invoked against the

Petitioner/Appellant. Such illegal and arbitrary action smacks of

malafides and corrupt underhand dealings by the public authorities in

tandem with the Auction Purchaser, which speak volumes on the face of

it. Res Ipsa Loquitur.

25. We fail to understand and cannot sustain, with great respects, the

conditional order passed by learned Single Judge, while holding that the

sale of the Residential House in question by GSFC was not sustainable

but still making such setting aside of sale conditional and calling upon

the Petitioner/Appellant to deposit Rs.38.35 lakhs in order to get back

the possession of the property in question which always belonged to her

and which could not be touched by invoking powers under Section 29 of

the Act. The adding of the amount of Rs.11 Lacs for the alleged repairs

and renovation carried out by the Auction Purchaser on the said House

and an estimated figure of compensation of Rs. 5 Lacs to be paid by

GSFC to Purchaser - Purshottam M. Patel, if the sale is set aside and the

C/LPA/517/2010 CAVJUDGMENTDt: 20.04.2021 NEETABEN U CHOKSHI, THRO' POA FALGUNBHAI PATEL Versus GUJARAT STATE FINANCIAL CORPORATION & 1 other(s)

possession is given back to Petitioner/Appellant, were too unfounded

and unadjudicated claims to be loaded on the back of the Petitioner and

to be added to the burden of the Petitioner/Appellant like the proverbial

last straw on the camels' back. We do not find any legal basis or

justification to settle such unclaimed equity in favour of the Auction

Purchaser and calling upon the Petitioner/Appellant to bear the same in

the face of sale which was void ab initio.

26. What is therefore now required to be done by the Court now is, to

fix responsibility on the concerned authorities of GSFC and call upon the

Purchaser to compensate the Petitioner/Appellant, because such a

Purchaser who was obviously in league and collusion with the

Authorities of GSFC, could not be said to be a bonafide Purchaser at all

by any stretch of imagination. The learned Single Judge, with great

respects, erred in turning the tables on the head of the

Petitioner/Appellant unnecessarily.

27. We are therefore of the clear opinion that the Appeal filed by the

Petitioner/Appellant/Surety Ms. Neetaben U. Choksi deserves to be

allowed with costs, while the Appeals filed by the Purchaser -

Purshottam U. Patel and GSFC deserves to be dismissed. The case also

actually calls for exemplary compensation in favour of the

C/LPA/517/2010 CAVJUDGMENTDt: 20.04.2021 NEETABEN U CHOKSHI, THRO' POA FALGUNBHAI PATEL Versus GUJARAT STATE FINANCIAL CORPORATION & 1 other(s)

Petitioner/Appellant, who was made to fight this litigation for the

mischievous and mala fide illegal action on the part of opposite parties -

GSFC and Auction Purchaser taken together.

28. Therefore, we allow the present Appeal No.517 of 2010 Neetaben

U.Choksi through Falgunbhai Patel vs. Gujarat State Financial

Corporation with cost of Rs. 1 Lac to be paid in equal share by the

GSFC and Purchaser - Purshottam M. Patel through Legal

Representatives to the Petitioner/Appellant within six weeks from today.

29. We further quash and set aside the sale of the residential house

situated at 11, Rudravadan Bungalows, Near Rozi School, Sun and

Step Club Road, Thaltej, Ahmedabad dated 22.2.2005 and the

Registered Sale Deed dated 3.5.2005 and direct the Purchaser of the

property and now the Legal Representatives of Purshottam M. Patel and

authorities of GSFC jointly and severally to immediately hand over the

vacant and peaceful possession of the said Residential House to the

Petitioner/Appellant represented by her Power of Attorney Falgunbhai

Patel within a period of 30 days from today and report compliance to

this Court.

30. We further hold that the Legal Representatives of Purchaser -

C/LPA/517/2010 CAVJUDGMENTDt: 20.04.2021 NEETABEN U CHOKSHI, THRO' POA FALGUNBHAI PATEL Versus GUJARAT STATE FINANCIAL CORPORATION & 1 other(s)

Purshottam M. Patel will not be entitled for any compensation whatever

for the alleged repairs and renovation done in the said Bungalow and

they can only remove their own personal belongings from the said House

while handing over the vacant and peaceful possession of the said House

to the Petitioner/Appellant and will not cause any damage to the

permanent structures of the said house as it exists now or remove or

demolish any part of it, failing which contempt action may be drawn

against them by this Court.

31. We further award a lump-sum liquidated damages and

compensation to the tune of Rs.5 Lacs in favour of the

Petitioner/Appellant to be paid by the Respondent - GSFC to the

Petitioner/Appellant within a period of three months from today.

32. The GSFC is directed to refund the Deposit of Rs.20.25 Lacs made

by the Petitioner/Appellant to her forthwith with interest @ 6% per

annum thereon.

33. We further direct a special audit by C&AG Team into the said

entire exercise of powers under Section 29 of the SFC Act by the then

available officials of GSFC in the present case who dealt with this case

from the time of initiation of action under Section 29 against this

C/LPA/517/2010 CAVJUDGMENTDt: 20.04.2021 NEETABEN U CHOKSHI, THRO' POA FALGUNBHAI PATEL Versus GUJARAT STATE FINANCIAL CORPORATION & 1 other(s)

property in 1999-2000 till 2005 and the responsibility may be fixed on

those officers of GSFC involved in the said entire exercise of powers and

the Auction Purchaser and his Legal Representatives, the beneficiaries of

such illegal acts and the aforesaid costs and compensation to be paid to

the Petitioner/Appellant shall be recovered from such officials, so that

final burden of the same is not on the public funds of which GSFC and

such institutions hold in public trust. The costs and compensation to be

paid to the Petitioner/Appellant shall however be paid to her now only as

directed above.

34. A copy of the Preliminary Report of C&AG Team may be

furnished to this Court within a period of three months from today and

Final Report within one year from today. A copy of this order will be

sent to the C&AG, C/o The Principal Accountant General, Gujarat Audit

Bhawan, Near Commerce Six Roads, Navrangpura, Ahmedabad and its

Delhi Central Office, for needful compliance.

35. The Appeals are accordingly disposed of.

                                                              (DR. VINEET KOTHARI,J)



                                                                    (BIREN VAISHNAV, J)





 C/LPA/517/2010                                                            CAVJUDGMENTDt: 20.04.2021

NEETABEN U CHOKSHI, THRO' POA FALGUNBHAI PATEL Versus GUJARAT STATE FINANCIAL CORPORATION & 1 other(s)

Upon pronouncement of the Judgment, Mr. R.D. Dave, learned

counsel for the GSFC and Mr. V.K. Sevak, learned counsel for Mr. P.M.

Patel through Legal Representatives, prayed for staying the operation of

this Judgment for a period of three months, as they want to file Appeal

against this Judgment before the Hon'ble Supreme Court and in view of

ensuing Summer Vacations of the Hon'ble Supreme Court till 30.6.2021,

they prayed for the stay of this Judgment for a period of three months.

Though this request is opposed by learned counsel for the Appellant

Mr.Baiju Joshi, we consider it appropriate in the aforesaid circumstances,

to keep the operation of this Judgment in abeyance for a period of three

months only from today.

(DR. VINEET KOTHARI,J)

(BIREN VAISHNAV, J) NAIR SMITA V.