Gujarat High Court
Smitaben Mahin Modi vs State Of Gujarat on 4 January, 2021
Bench: Vineet Kothari, Gita Gopi
C/LPA/1011/2015 ORDER
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/LETTERSPATENTAPPEALNO. 1011of 2015
In
R/SPECIALCIVILAPPLICATIONNO. 11088of 2014
With
R/LETTERSPATENTAPPEALNO. 984 of 2015
In
SPECIALCIVILAPPLICATIONNO. 12323of 2014
With
R/LETTERSPATENTAPPEALNO. 985 of 2015
In
SPECIALCIVILAPPLICATIONNO. 12324of 2014
With
R/LETTERSPATENTAPPEALNO. 986 of 2015
In
SPECIALCIVILAPPLICATIONNO. 12325of 2014
With
R/LETTERSPATENTAPPEALNO. 987 of 2015
In
SPECIALCIVILAPPLICATIONNO. 12326of 2014
With
R/LETTERSPATENTAPPEALNO. 988 of 2015
In
SPECIALCIVILAPPLICATIONNO. 12327of 2014
With
R/LETTERSPATENTAPPEALNO. 989 of 2015
In
SPECIALCIVILAPPLICATIONNO. 11641of 2014
With
R/LETTERSPATENTAPPEALNO. 990 of 2015
In
SPECIALCIVILAPPLICATIONNO. 11642of 2014
With
R/LETTERSPATENTAPPEALNO. 991 of 2015
In
SPECIALCIVILAPPLICATIONNO. 11643of 2014
With
R/LETTERSPATENTAPPEALNO. 992 of 2015
In
SPECIALCIVILAPPLICATIONNO. 11644of 2014
With
R/LETTERSPATENTAPPEALNO. 993 of 2015
In
Page 1 of 5
Downloaded on : Thu Jan 07 20:44:45 IST 2021
C/LPA/1011/2015 ORDER
SPECIALCIVILAPPLICATIONNO. 11645of 2014
With
R/LETTERSPATENTAPPEALNO. 994 of 2015
In
SPECIALCIVILAPPLICATIONNO. 11646of 2014
With
R/LETTERSPATENTAPPEALNO. 1012of 2015
In
SPECIALCIVILAPPLICATIONNO. 11089of 2014
With
R/LETTERSPATENTAPPEALNO. 1013of 2015
In
SPECIALCIVILAPPLICATIONNO. 11090of 2014
With
R/LETTERSPATENTAPPEALNO. 1014of 2015
In
SPECIALCIVILAPPLICATIONNO. 11091of 2014
With
R/LETTERSPATENTAPPEALNO. 1015of 2015
In
SPECIALCIVILAPPLICATIONNO. 11092of 2014
With
R/LETTERSPATENTAPPEALNO. 1016of 2015
In
SPECIALCIVILAPPLICATIONNO. 11093of 2014
With
R/LETTERSPATENTAPPEALNO. 1017of 2015
In
SPECIALCIVILAPPLICATIONNO. 11094of 2014
With
R/SPECIALCIVILAPPLICATIONNO. 16610of 2014
With
R/LETTERSPATENTAPPEALNO. 845 of 2016
In
SPECIALCIVILAPPLICATIONNO. 13778of 2009
With
CIVILAPPLICATION(FORSTAY) NO. 1 of 2016
In
R/LETTERSPATENTAPPEALNO. 845 of 2016
In
SPECIALCIVILAPPLICATIONNO. 13778of 2009
With
R/SPECIALCIVILAPPLICATIONNO. 14011of 2019
==========================================================
SMITABENMAHINMODI
Page 2 of 5
Downloaded on : Thu Jan 07 20:44:45 IST 2021
C/LPA/1011/2015 ORDER
Versus
STATEOF GUJARAT& 1 other(s)
==========================================================
Appearance:
MRMAUNISHT PATHAK(5892)for the Appellant(s)No. 1
GOVERNMENTPLEADER(1)for the Respondent(s)No. 1
MRH.M. PARIKHfor the (64) for the Respondent(s)No. 2
==========================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date: 04/01/2021
COMMONORALORDER
(PER: HONOURABLEDR. JUSTICEVINEETKOTHARI)
1. The matters have been argued at some length. The learned
counsel for the appellants has relied upon the judgment of
learned single Judge of this Court in the case of Bhavnagar
District Co-operative Bank Ltd. Vs. H.M. Joshi reported in
1985 (2) G.L.R. 1087, which is said to have been affirmed by
the Division Bench of this Court, in the case of Bhavnagar
District Co-operative Bank Ltd. Vs. State of Gujarat, reported
in the same volume of Gujarat Law Reporter, namely, 1985 (2)
G.L.R. 1380. The learned counsel for the appellants has
contended that the liquidation proceedings under Section 114 of
the Gujarat Co-operative Societies Act, 1961 shall be deemed to
have been terminated upon the expiry of the outer limit of seven
years from the date of the winding-up order.
2. However, the above contention is opposed by the learned
counsel Mr. H.M. Parikh appearing for the respondent-Registrar,
Co-operative Societies, by submitting that since no final report of
the Official Liquidator providing details of the sale proceeds has
been received in the present case, as envisaged under Section
C/LPA/1011/2015 ORDER
114(2) of the said Act, the proceedings cannot be said to have
been terminated upon expiry of seven years from the date of the
winding-up order by virtue of the deeming fiction of law. He
submitted that the said judgment of the Division Bench of this
Court in the case of Bhavnagar District Co-operative Bank Ltd.
(supra) shall not apply to the present case as no final report has
been filed by the Official Liquidator.
3. The present appeals have been filed by the writ petitioners,
who are borrowers/guarantors of the respondent-society and
similar other co-operative banks. It was submitted by the
learned counsel for the appellants that even if some dues were
outstanding on the date of expiry of the aforesaid period of seven
years, which, by amendment of law, has been extended to 10
years from the date of the winding-up order, the deeming fiction
of law will operate and therefore, the learned single Judge has
erred in dismissing the writ petitions by way of the impugned
judgment and order dated 05.05.2015.
4. Prima facie, for a harmonious reading of the entire
provision of Section 114 read with Section 161 of the said Act,
the matters would require further consideration, specially in
view of Section 161 of the Act to consider whether the State
Government has the power to exempt the applicability of the
whole or a part of the provisions of this Act to any society or not
and whether it has been so done in these cases or not ?
5. The learned counsel for the respondents, Mr. H.M. Parikh
and Mr. Utkarsh Sharma for the State may place on record the
orders passed by the competent authority of the State under
Section 161 of the Act in the case of the present societies. Both
C/LPA/1011/2015 ORDER
the sides may also prepare Brief Synopsis, List of Dates and
Events and the compilation of case laws to be relied upon by
them and the relevant statutory provisions.
6. Besides the aforesaid, during the course of arguments, it
was also submitted by learned counsel for the appellants that
the appellants, who are the borrowers/guarantors, are even now
ready to settle the loan accounts of the respondent-Banks, which
have, so far, not been de-registered as society by the Registrar,
on similar lines as has been done in the cases of some other
such borrowers. To this proposal, the learned counsel for the
respondents submitted that unless a concrete proposal is made
by such borrowers/guarantors, the respondent-societies cannot
consider any such offers or proposals. However, both the learned
counsel prayed that they may be allowed some time to make
efforts in this direction also.
7. We grant a period of four weeks time. The appellants may
give concrete proposals to the respondent-banks for settlement
of their dues within a period of One Week from today, which may
be considered by the respondent Cooperative Banks within a
period of Two Weeks from the receipt of such proposal. Both the
sides may try to negotiate the settlement. This may be done
without prejudice to their rights to raise legal contentions before
this Court in the present Writ Appeals.
8. List the matters on 10.02.2021, as prayed.
(DR. VINEET KOTHARI,J)
(GITAGOPI,J)
Pankaj
