Dura Packs vs State Of Gujarat
2021 Latest Caselaw 301 Guj

         C/LPA/1942/2017                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 1942 of 2017
           In R/SPECIAL CIVIL APPLICATION NO. 12699 of 2014
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
             In R/LETTERS PATENT APPEAL NO. 1942 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================

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

2     To be referred to the Reporter or not ?

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

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                              DURA PACKS & 1 other(s)
                                     Versus
                           STATE OF GUJARAT & 4 other(s)
==========================================================
Appearance:
MR PA JADEJA, ADVOCATE WITH MR SP MAJMUDAR(3456) for the
Appellant(s) No. 1,2
MR UTKARSH SHARMA, ASST GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR MOHMEDSAIF HAKIM(5394) for the Respondent(s) No. 2
==========================================================

    CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
           and
           HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 11/01/2021

                                 ORAL JUDGMENT

C/LPA/1942/2017 JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. This Letters Patent Appeal is directed against the order dated

11/09/2017 of the learned Single Judge dismissing the writ petition

filed by the borrower M/s. Dura Packs against the State of Gujarat

as well as the Baroda Traders Co-op Bank Ltd.

1.1 The writ petition was filed by Borrower aggrieved by the

rejection of the petitioner's proposal to settle the recovery dues

under One Time Settlement Scheme introduced by the State

Government dtd. 13/09/2002, which gave a window such borrowers

to settle their dues under One Time Settlement (OTS) scheme.

2. The learned Single Judge by the order impugned before us

also made some observations with regard to the Director of the

said Respondent Urban Co - operative Bank being a relative of the

borrower - petitioner M/s. Dura Packs.

2.1 It was mainly contended before us in the present appeal that

the respondent bank has wrongly rejected the OTS proposal of the

petitioner - borrower inter alia on the aforesaid ground and also on

the ground that the property in question, which was mortgaged

with the Respondent Bank by way of Security was having more

value than the outstanding dues of the said Respondent Bank.

C/LPA/1942/2017 JUDGMENT

2.2 The learned counsel for the appellant, Mr. P. A. Jadeja has

also submitted that the learned Single Judge has wrongly observed

that since action under the provisions of The Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (SARFAESI Act) has been initiated against the

Borrower, therefore, he cannot avail the benefit of the said OTS

scheme announced by the State Government on 13.09.2002.

2.3 On the other hand, learned counsel for the respondent - Bank

Mr. Mohmedsaif Hakim also brought to notice the Circular issued

by the Reserve Bank of India on 09/04/2013, in which, the Reserve

Bank of India has directed that such OTS Scheme will not be made

applicable to the Urban Co- operative Banks operating working

under the directions issued by Reserve Bank of India under Section

35A of the Banking Regulation Act, 1949 and therefore, the present

petitioner was not entitled to any benefit under the said OTS

Scheme.

3. This argument of the learned counsel for the respondent

bank was sought to be controverted by the learned counsel for the

petitioner on the ground that the respondent - Bank namely Baroda

Traders Co - operative Bank Ltd. was not the UCB (Urban Co-

operative Bank) governed under Section 35A of the Banking

Regulation Act, 1949 and therefore the said Circular issued by the

Reserve Bank of India on 09/04/2013 is not applicable to the facts

C/LPA/1942/2017 JUDGMENT

of the present case.

4. However, the learned counsel for the petitioner, Mr. P. A.

Jadeja fairly brought to our notice that the dispute of recovery

between the petitioner and the said respondent bank is pending in

the Co - operative Tribunal constituted constituted under the

provisions of the Gujarat Co - Operative Societies Act, 1961.

5. Having heard the learned counsels and having gone through

the impugned order of the learned Single Judge and the material on

record, we are not inclined to interfere in the matter on merits for

two reasons.

5.1 Firstly, because we find that the One Time Settlement

Scheme under which, the petitioner - Borrower is seeking a relief

no longer survives. The said OTS Scheme announced on

13.09.2012 was having the life of only two years vide its Clause 8.

More than 8 years, have since passed and, therefore, the said

Scheme announced by the Agriculture and Co- operative

Department of the State Government no longer survives, and

therefore, there is no question of any mandamus direction to be

issued by this Court to the respondent bank to grant any benefit to

the petitioner - Borrower under the said Scheme.

5.2 Secondly, we are not inclined to interfere in the matter for

C/LPA/1942/2017 JUDGMENT

the reason that the dispute is pending between the same parties

and the issue of recovery itself in the Tribunal which has power to

decide the said issue and other allied issues. Since the dispute is

pending before an alternative competent Tribunal, which has

power to decide the said dispute, we advisedly desist from making

any observations on the merits on rival contentions, lest it affects

the lower Tribunal to decide the cases in any particular manner.

6. Therefore, leaving the parties free to raise their contentions

before the said Tribunal, we dispose of the present Letters Patent

Appeal only with request to the said Tribunal to decide the pending

appeal, as expeditiously as possible, preferably within a period of

one year from today, as the property of the Borrower is said to be

in possession of the respondent - Bank from last about 10 years

without any useful utilization of the Assets in question either in the

for of land or some industrial plant and machinery, as the case case

may be. The un-utilized property of any industry is a national waste

too and, therefore, the matter may be decided by the concerned

Co-operative Tribunal expeditiously, and without also being

influenced any observations made by the learned Single Judge on

the merits of the case.

6.1 Accordingly, the present appeal is disposed of with the above

observations and liberty to the parties. No orders as to costs.

C/LPA/1942/2017 JUDGMENT

7. In view of disposal of main appeal, Civil Application does not

survive accordingly disposed of with no order as to costs.

(DR. VINEET KOTHARI,J)

(GITA GOPI,J) DRASHTI K. SHUKLA