Minesh Arvindbhai Shah vs Uco Bank
2021 Latest Caselaw 10532 Guj

       C/LPA/684/2021                               ORDER DATED: 04/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 684 of 2021
             In R/SPECIAL CIVIL APPLICATION NO. 8919 of 2021

                                    With

                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                In R/LETTERS PATENT APPEAL NO. 684 of 2021
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                        MINESH ARVINDBHAI SHAH
                                Versus
                               UCO BANK
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Appearance:
MR RAVINDRA SHAH(1299) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
           VIKRAM NATH
           and
           HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 04/08/2021

                               ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1. We have heard Mr. Ravindra Shah, learned advocate appearing for the appellants.

2. By means of this Letters Patent Appeal, under Clause 15 of the Letters Patent, the appellants have assailed the correctness of the judgement and order dated 28.06.2021 passed in Special Civil Application No. 8919 of 2021 whereby the learned Single Judge dismissed the petition as being devoid of any merits.

3. The brief facts relevant for the controversy are that the appellants

C/LPA/684/2021 ORDER DATED: 04/08/2021

are auction purchasers in proceedings held on 10.02.2007 by the respondent no. 1 UCO Bank under orders of the High Court. The defaulter/borrower of the three banks, had a guarantor one Mr. Shailesh Vishwanath Raval. Mr. Raval was alleged to be a guarantor for the three loans namely from UCO Bank, Bank of Baroda and Central Bank of India - respondents no. 1 to 3 respectively and had given the property in question as security by deposit of title deeds. After the auction sale was confirmed, the sale certificate was not being issued and further the appellants - auction purchasers were requesting for return of the title deeds of the property in question from the three banks which was also not being done.

3.1 The appellants as such preferred Special Civil Application No. 13502 of 2008. The learned Single Judge vide judgement and order dated 23.12.2009 disposed of the petition by issuing seven directions as contained in para 12 thereof. The first direction was to the respondent no. 1 Bank i.e. UCO Bank to execute the sale deed through its Authorized Officer pursuant to the sale certificate dated 10.02.2007 in favour of the petitioners upon formalities being completed within four weeks from the date of receipt of the order. The second direction was that the title documents, if any, in possession of the respondent no. 1 - UCO Bank would be handed over to the petitioners. It would be worthwhile to mention here that apart from proceedings being initiated by the UCO Bank, the other two banks i.e. Bank of Baroda and Central Bank of India had initiated independent proceedings for recovery of their dues and those suits were pending before the Civil Court / Tribunal as the case may have been. Taking that aspect into consideration, the learned Single Judge issued direction no. 6 to the effect that upon a satisfaction of the claim as per the Decree or the Certificate as may be issued by the Competent

C/LPA/684/2021 ORDER DATED: 04/08/2021

Court or the Tribunal, the respondents no. 2 and 3 would be required to hand over the original title deed, if any, in its possession of the property in question to the respondent no. 1 Bank who thereafter in turn shall entrust such documents to the petitioner no. 1. The rest of the directions issued by the learned Single Judge are not relevant for the present controversy. For the sake of accuracy we are reproducing para 12 of the said judgement dated 23.12.2009.

"12. In view of the aforesaid, the following directions shall meet with the ends of justice-

1.The respondent No.1 Bank shall executed the Sale Deed through its authorised officer pursuant to the Sale Certificate dated 10.02.2007 in favour of the petitioner No.1 upon formalities completed by the petitioners within four weeks from the receipt of the order of this Court.

2.Simultaneously, the title documents, if any in possession of the respondent No.1 Bank shall also be handed over to the petitioners.

3.The amount of Rs.45.25 Lakhs which has been received by the respondent No.1 Bank as sale consideration of the property shall remain with it subject to the order, if any, passed by the competent Court or the Tribunal in the proceedings of Civil Suit No.2356/00 or Appeal from Order No. 32/05, as the case may be.

4.It is observed that in the event the decree or the certificate is issued in favour of the concerned Bank, who is plaintiff or applicant therein, subject to the rights of the respondent No.1 Bank to prefer the appeal, it will be required for the respondent No.1 Bank to pay the amount from the available fund of Rs.45.25 Lakhs.

5.It is observed that it will be open to the respondent No.1 Bank to intervene in the proceedings of Civil

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Suit No. 2356/00 if it is so desirous to resist the decree which may be passed and consequently effected upon the available fund of Rs.45.25 Lakhs resulting into the reduction of its right to recover the amount from the property in question. At that stage, the rights and contentions of both the sides shall remain open.

6.Upon the satisfaction of the claim as per the Decree or the Certificate as may be issued by the competent Court or the Tribunal as the case may be, the respondent Nos.2 or 3 shall be required to to handover the original title deed, if any in its possession, of the property to the respondent No.1 Bank, who thereafter in turn shall entrust such documents to the petitioner No.1.

7.The respondent No.1 Bank shall invest the amount in a separate account which may earn interest upon the fixed deposit exceeding one year and such investment will be renewed from time to time until the dispute is finalised in the proceedings of the Civil Suit and/or the DRT, and/or OA No.32/05, as the case may be."

3.2 Thereafter, it appears that the Recovery Suits of respondent nos. 2 and 3 Banks, one which was pending came to be dismissed and the other is still pending as per Mr. Ravindra Shah, learned advocate for the appellants. To be more specific, according to Mr. Ravindra Shah, the Civil Suit of the respondent no. 2 Bank has since been dismissed in the year 2018 and till date no application for restoration of the suit has been filed. He further states that insofar as respondent no. 3 Bank is concerned, the suit for recovery is still pending.

3.3 In the year 2021, the appellant filed a fresh petition before this Court being Special Civil Application No. 8919 of 2021 praying for the following reliefs:

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"6. The petitioners therefore pray that the honourable court be pleased:

(A) to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned action of the respondent banks in not handing over the originals of title deeds of bungalow E/40, Ayojannagar cooperative housing society Ltd, near Shreyas railway crossing, Vasna, Amdavad to the petitioners and to command the respondents banks to handover the originals of the title deeds of the said property deposited by Shailesh Vishwanath Raval respectively with the respondent 2 Bank of Baroda and respondent 3 Central bank of India;

(B) pending hearing and final disposal of the petition, to direct the respondent banks to forthwith handover to the petitioners, the originals of title deeds of bungalow E/40, Ayojannagar cooperative housing society Ltd, near Shreyas railway crossing, Vasna, Amdavad deposited by Shailesh Vishwanath Raval respectively with the respondent 2 Bank of Baroda and respondent 3 Central bank of India upon such terms and conditions as the honourable court may deem fit and proper in the facts and circumstances of the case;

(C) pending hearing and final disposal of the petition, to direct the respondent banks to forthwith take appropriate steps/measures for diligently and expeditiously prosecuting the pending OA 32/2005 filed by respondent 3 Central bank of India before the Debts Recovery Tribunal (DRT-I), Amdavad for getting it finally adjudicated on merits within a stipulated time frame as may be deemed fit and proper by the honourable court in the facts and circumstances of the case;"

3.4 In effect the reliefs claimed are for the respondent banks to hand over the title deeds of the property of Mr. Shailesh Vishwanath Raval to the appellants. Further, relief (C) of para 6 is to the effect that appropriate direction be issued to direct the respondent Bank to forthwith take appropriate measures for diligently and expeditiously prosecuting

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OA 32/2005 filed by respondent no. 3 Central Bank of India before the Debt Recovery Tribunal, Ahmedabad and to get the same finally adjudicated on merits within a stipulated time frame.

3.5 The learned Single Judge dismissed the writ petition by judgment dated 28.06.2021. Aggrieved by the same, the present appeal has been preferred.

4. Mr. Ravindra Shah, learned advocate for the appellants has vehemently argued that the learned Single Judge committed an error dismissing the writ petition while recording two reasons. Firstly, that the petition suffered from serious latches and secondly that there were contradictory stands taken by the petitioners in the petition. He submits that both the reasons given by the learned Single Judge for dismissing the petition are untenable as according to him, firstly, the suit of respondent no. 2 bank was dismissed in 2018 and as such before that the petitioner could not have approached this court and secondly, the suit of respondent no. 3 is still pending, as such also, the petitioner could not have approached this court earlier. Insofar as respondent no. 1 bank is concerned, the petitioners has received the title deeds. It is also submitted by Mr. Shah that no contradictory stand was taken by the petitioners.

5. In our considered view, the writ petition itself was liable to be dismissed. May be the learned Single Judge recorded regarding the delay aspect which of course was very much there. That after 2008 when the suits of the Bank were pending from much before 2008 and if they were not being decided, why did the petitioners not approach the court earlier and therefore a litigant who is not diligent, cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the

C/LPA/684/2021 ORDER DATED: 04/08/2021

Constitution of India. We do not find any error in the findings recorded by the learned Single Judge.

5.1 Secondly, regarding contradictory statements, we do not find any such serious issue to be addressed. However, we are of the firm view that the petition itself was not maintainable for the reliefs (A) and (B) which are actually the main reliefs and for which Mr. Ravindra Shah vehemently canvassed before us that direction should be issued for reliefs relating to return of the title deeds in the favour of the appellants by respondents no. 2 and 3 Banks - Bank of Baroda and Central Bank of India. According to us, the relief which is being claimed as in para 6 (A) & (B) of the petition, was already granted to the petitioners - appellants herein. If the appellants did not avail of the same, then they alone are to be held responsible and they cannot maintain a second petition for the same relief.

5.2 The other submission made by Mr. Ravindra Shah that since the appellants are not parties to the civil proceedings for recovery initiated by the Bank, as such, he does not know what is happening, is again a lethargic and lackdaisical approach of the petitioners - appellants in not pursuing the remedy for which they have approached this court after 13 years. Even for relief 6 (C), the learned Single Judge was correct in saying that the petitioners - appellants had approached after a great delay of ten years. Nobody stopped the petitioners - appellants from seeking impleadment in the pending recovery suits having purchased the properties in 2007 itself. Alleging today that they are not parties is again an attempt to create some kind of misconception before the court that the petitioners - appellants have been suffering at large.

C/LPA/684/2021 ORDER DATED: 04/08/2021

6. For all the reasons recorded above, we do not find any merit in this appeal which is accordingly dismissed. Civil Application also stands disposed of.

(VIKRAM NATH, CJ)

(BIREN VAISHNAV, J) DIVYA