Becharbhai Paragbhai Patel vs Registrar
2021 Latest Caselaw 18294 Guj

      C/SCA/8740/2009                                    ORDER DATED: 10/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 8740 of 2009

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                 BECHARBHAI PARAGBHAI PATEL & 1 other(s)
                                Versus
                        REGISTRAR & 1 other(s)
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Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1,2
MR SHASHVATA SHUKLA FOR MR SP MAJMUDAR(3456) for the
Petitioner(s) No. 1,2
MR AYAN PATEL, AGP for the Respondent(s) No. 1
MR VC VAGHELA(1720) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                  Date : 10/12/2021

                                   ORAL ORDER

Heard learned advocate Mr.Shashvata Shukla for learned advocate Mr.S.P.Majmudar for the petitioners, learned Assistant Government Pleader Mr.Ayaan Patel for the respondent No.1 and learned advocate Mr.V.C.Vaghela for the respondent No.2.

1. By this petition, the petitioners have prayed for the following reliefs :

"20) In the premises aforesaid, the petitioners most humbly and respectfully pray that :

(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order/certificate dated 25.05.1998 of respondent No.2-Bank under Section 110 (under sub-clause

(h) and (k)) of the Act (at ANNEXURE-K hereto) and

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further be pleased to hold that respondent No.2-Bank shall not initiate any action under the provisions of Section 103 of the Act on the basis of the said certificate;

(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay further implementation, execution and operation of order/certificate dated 25.05.1998 of respondent No.2- Bank under Section 110 (under sub-clause (h) and (k)) of the Act (at ANNEXURE-K hereto) and further be pleased to restrain respondent No.2-Bank from taking any coercive action against the petitioners on the basis of the aforesaid order;

(C) Pass any such other and/or. further orders that may be thought just and proper, in the facts and circumstances ofhte present case."

2. Brief facts of the case are as under :

2.1. The father of petitioner namely Paragbhai Purshottambhai Patel allegedly had taken a loan of Rs.5,000/- on 25.04.1986. It is the case of the petitioner that in fact the said amount was never taken by the Petitioners' father. However, the concerned Secretary and Chairman, at the relevant point of time by fabricating his signature, had taken an amount of Rs.5,000/-. It is the case of the petitioner that further amount of Rs.15,000/- and Rs.7,000/- was also going to be disbursed, however, when petitioners' father learnt about the said malpractice, he immediately complained to the concerned Secretary and Chairman and thereafter, further disbursement was not made. It is the case of the petitioner that the aforesaid fact is evident from the

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application form of the loan dated 25.04.1986 which bears the purported signature of the petitioners' father only for an amount of Rs.5,000/-.

2.2. It is the case of the petitioner that late Shri Paragbhai Purshottambhai Patel, with a view to avoid future disputes, deposited the said amount on 23.05.1986. It is the case of the petitioner that thereafter, late Shri Paragbhai Purshottambhai Patel resigned from the Society since he was thoroughly dissatisfied with the management of the affairs of the society.

2.3. It is the case of the petitioner that on 25.05.1986 the said society also issued a certificate stating the fact that there is no charge over any of the property of Shri Paragbhal Purshottambhai Patel. It is the case of the petitioner that on the basis of the said certificate, necessary mutation had also taken place in village form No.6. It is the case of the petitioner that the charge of the society over the properties of late Shri Paragbhai Purshottambhai Patel ceased to exist. It is the case of the petitioner that the Talati-cum-Mantri also issued a certificate on 05.09.1986 reconfirming the fact that there is no charge over any of the properties of late Shri Paragbhai

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Purshottambhai Patel. It is the case of the petitioner that in the said certificate the Talati-cum Mantri informed that except the entry with regard to the order passed by learned Board of Nominees with regard to attachment before judgment, there is no other entry for showing the charge of the Society/Bank.

2.4. Shri Paragbhai Purshottambhai Patel expired on 05.09.1996 and thereafter his properties devolved upon the present petitioners.

2.5. It is the case of the petitioner that thereafter, the Society/Bank withdrew its suit filed before learned Board of Nominees by giving an application on 30.09.1998. It is the case of the petitioner that as the main suit itself was withdrawn, the interim order passed by learned Board of Nominees for attachment before judgment on 11.04.1988 would not survive. However, despite the said fact in concerned revenue records the mutation of the order passed by learned Board of Nominees for attachment before judgment continued. It is the case of the petitioner that the Board of Nominees while permitting withdrawal of the suit by the society/bank, did not make any clarification whether the interim order survived or not. It is the case of the petitioner that therefore, the petitioner made an application on

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29.01.2008, for clarifying that since the suit has been withdrawn, the interim order would not survive. The learned Board of Nominees by order dated 08.09.2008 clarified that since the main suit itself was withdrawn, the interim order for attachment before judgment would not survive.

2.6. It is the case of the petitioner that after the abovementioned clarification was made by learned Board of Nominees, respondent No.2-Bank filed a revision application before the Gujarat State Co-operative Tribunal, Ahmedabad and the Tribunal, vide order dated 29.11.2008 confirmed the clarification made by Board of Nominees and further observed that as per declaration of late Shri Paragbhai Purshottambhai Patel dated 13.01.1974, the charge of the bank over the property of late Shri Paragbhai Purshottambhai Patel would continue.

2.7. It is the case of the petitioner that the aforesaid observation of the Tribunal was clearly a mistake apparent on face of the record of the Tribunal since - firstly the said declaration was never the subject matter of dispute before the Tribunal and the Tribunal only had to consider whether the clarification made by Board of Nominees was proper or not. Moreover, the said declaration was given on 13.01.1974, which was

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much prior to the date of the alleged loan taken by late Shri Paragbhai Purshottambhai Patel. It is the case of the petitioner that on the basis of the aforesaid declaration, no charge can be created for loan which was alleged to have been taken in the year 1986-87, Moreover, the alleged loan was already fully repaid and No Due Certificate was also given by the Society at the relevant point of time. It is the case of the petitioner that the petitioners preferred a review application before the Tribunal by invoking Section 151 of the Gujarat Cooperative Societies, 1961 (for short 'the Act, 1961') and considering the facts and circumstances of the case the Tribunal reviewed the order and corrected its mistake and by order dated 15.04.2009 modified its earlier order and observed that the bank can proceed under Section 110 read with Section 103 of the Gujarat Cooperative Societies Act, 1961.

2.8. It is the case of the petitioner that respondent No.2-Bank preferred a writ petition being Special Civil Application No.4067 of 2009, being aggrieved by the aforesaid order which came to be disposed of by this Court.

2.9. Thereafter, on 19.06.2009 respondent No.2- Bank got mutation entry recorded in Village Form

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No.6 that an order under Sections 103 and 110 of the Act, 1961 has been obtained by it against the petitioners.

2.10. It is the case of the petitioner that the bank/society had withdrawn the suit with a liberty to take appropriate proceedings under Section 103 read with Section 110 of the Act, 1961. It is the case of the petitioner that no notice whatsoever was served upon the present petitioners with respect to the proceedings under the aforesaid sections. The petitioners have learnt that respondent No.2-Bank had issued one certificate in exercise of its powers under the abovementioned sections against late Shri Paragbhai Purshottambhai Patel on 25.05.1998. As stated above, Shri Paragbhai Purshottambhai Patel had expired on 05.09.1996 and, therefore, the certificate issued by respondent No.2-Bank was against a dead person.

2.11. It is the case of the petitioner that in the abovementioned certificate issued by respondent No.2-Bank it has stated that it had issued notice to Shri Paragbhai Purshottambhai Patel on 08.01.1998, though admittedly the said notice was issued against a dead person. However, no such notice was ever received by the petitioners. It is also pertinent to note here

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that when District Registrar, Bharuch had given instructions to the Recovery Officer to effect recovery in certain cases (which included the case of late Shri Paragbhai Purshottambhai Patel), the Recovery Officer on 01.05.2001 informed the District Registrar that in some cases it is not possible to effect recovery since there are no agreements or documents showing the loan taken by the alleged borrowers and, therefore, in absence of any documents, it is not possible to effect recovery.

2.12. It is the case of the petitioner that the petitioners for the first time came to know the proceedings under Section 110 of the Act, 1961 initiated by respondent No.2-Bank on 29.12.2008 when respondent No.2-Bank made an application before Mamlatdar, Bharuch for recovery. Thereafter, some time was consumed in getting the papers.

3.1. Learned advocate Mr.Shashvata Shukla appearing for the petitioners submitted that admittedly, the impugned notice issued by the respondent No.2 was dated 15th May, 1998 which is after the date of death of Paragbhai Purshottambhai Patel. It was therefore submitted that the impugned recovery notice issued against the dead person and the same is nullity and cannot be pressed into service by the respondent

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No.2.

3.2. Learned advocate Mr.Shukla submitted that the impugned order and certificate under Section 106 of the Act, 1961 are therefore null and void as the same are issued against the dead person.

4. This fact is not controverted by learned advocate Mr.Vaghela appearing for the respondent No.2.

5. In view of the above undisputed fact, the impugned order and notice issued under Section 106 of the Act, 1961 against the dead person, are required to be quashed and set aside and accordingly, the same are quashed and set aside only on that ground. The respondent No.2 is at liberty to initiate any further proceedings in accordance with law after giving an opportunity of hearing to the petitioners to raise all the contentions and objections available to the petitioner in accordance with law. Rule is made absolute to the aforesaid extent. No orders as to cost.

(BHARGAV D. KARIA, J) PALAK