Gujarat High Court
Dahyabhai Naranbhai Ahir vs Gandhidham Mercantile Co Op Bank ... on 7 July, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/228/2018 ORDER DATED: 07/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 228 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 16683 of 2014
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DAHYABHAI NARANBHAI AHIR
Versus
GANDHIDHAM MERCANTILE CO OP BANK LTD & 4 other(s)
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Appearance:
MR KALPESH N SHASTRI(1739) for the Appellant(s) No. 1
MR ASHISH H SHAH(2142) for the Respondent(s) No. 1
MR DILIP P JOSHI(1819) for the Respondent(s) No. 3.1,3.2,3.3,3.4
NOTICE SERVED(4) for the Respondent(s) No. 5
NOTICE UNSERVED(8) for the Respondent(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/07/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. We have heard Mr. Yogesh Ravani, the learned counsel
assisted by Mr. Kalpesh N. Shastri, the learned advocate
appearing for the appellant (original writ applicant) and Mr.
Ashish Shah, the learned counsel appearing for the respondent
No.1 - the Gandhidham Mercantile Cooperative Bank Ltd.
2. This appeal arises from the judgment and order passed by
a learned Single Judge of this Court dated 14.12.2016 in the
Special Civil Application No.16683 of 2014 by which the
learned Single Judge declined to entertain the writ application
and thereby affirmed the order passed by the Gujarat State
Cooperative Tribunal in the Misc. Application No.12 of 2014
dated 9.9.2014.
C/LPA/228/2018 ORDER DATED: 07/07/2021
3. It appears from the materials on record that the appellant
herein stood as a guarantor in connection with a loan
transaction between the bank and the respondent No.2 herein
M/s. Laxmi Roadways. It further appears that the respondent
No.3 viz. Shamjibhai K. Patel (since deceased) had also stood
as a guarantor in connection with the very same loan
transaction. The respondent No.3 - Shamjibhai K. Patel is no
more and his legal heirs are on record.
4. The bank instituted the Lavad Case No.209 of 2003
before the Board of Nominees for recovery of the loan amount
from the principal borrower as well as the guarantors. It is the
case of the bank that the summons issued by the Board of
Nominees was duly served upon both the guarantors i.e. the
appellant herein and the deceased guarantor (respondent No.3).
However, it is not in dispute that the appellant herein in his
capacity as the guarantor did not appear before the Board of
Nominees and participated in the lavad case proceedings.
5. The lavad suit came to be decreed by the Board of
Nominees in two parts; (i) order dated 1.11.2003 and (ii) order
dated 30.10.2004. The first order dated 1.11.2003 was passed
on the basis of some settlement between the bank and the
principal borrower whereas the second order dated 30.10.2004
came to be passed against the guarantors.
6. It appears that the bank now wants to recover the dues
towards the said loan transaction from the appellant herein in
his capacity as the guarantor. It is the case of the appellant
that what is sought to be now recovered from him is the
C/LPA/228/2018 ORDER DATED: 07/07/2021
balance amount due and payable by the principal borrower
with interest. The appellant herein went before the learned
Single Judge redressing the grievance that at no point of time
he received the copy of the original award passed by the
Board of Nominees to enable him to prefer an appeal before
the Tribunal. The learned Single Judge declined to accept the
case put up by the appellant herein and accordingly rejected
the writ application.
7. In such circumstances referred to above the appellant is
here before this Court with the present appeal.
8. When this appeal was heard couple of days back, we had
inquired with Mr. Ravani as well as Mr. Shah as regards the
liability as on date which the guarantors are obliged to
discharge. According to both the learned counsel an amount of
approximately Rs.12,00,000/- is to be recovered from the two
guarantors to put an end to the entire loan transaction. We
had suggested to Mr. Ravani to speak to his client to offer a
reasonable amount to the bank towards full and final
settlement. We also requested Mr. Shah, the learned counsel
appearing for the bank to speak to his client to consider
settling the dispute by accepting the amount that may be
offered by the appellant herein provided such amount is a
reasonable amount.
9. Today, when the matter is taken up for further hearing
Mr. Ravani brought to the notice of this Court that the
appellant herein and the respondent No.3 have jointly put
forward a proposal in writing before the bank for full and final
settlement by offering Rs.10,00,000/-. According to Mr. Ravani,
C/LPA/228/2018 ORDER DATED: 07/07/2021
the appellant would pay Rs.5,00,000/- and the respondent No.3
would pay the balance amount of Rs.5,00,000/-. So in all both
the guarantors as on date have put forward a proposal to pay
Rs.10,00,000/- to the bank and get the loan account closed. In
short, by offering this amount the appellant as well as the
respondent No.3 would like to get themselves discharged from
their liability.
10. Mr. Shah, the learned counsel appearing for the bank as
on date has no idea whether the bank has received such
proposal forwarded by the appellant and the respondent No.3
in writing or not. However, Mr. Shah submits that once such
proposal is received by the bank the same will have to be
looked into by the Board of Directors in view of certain
guidelines issued by the RBI.
11. We have recorded this short order only for one purpose
and that is to persuade the bank to consider the offer and as
far as possible accept the same and put an end to the entire
controversy. We do not say for a moment that the Board of
Directors shall take any decision which may not be in tune
with the policy of the RBI, but we are sure that the Board of
Directors must be having some discretion in this regard. If the
total amount due and payable is approximately Rs.12,00,000/-
and the offer is of Rs.10,00,000/- then in the opinion of this
Court it could be termed as a reasonable offer and the Board
of Directors should consider it and accept the same.
12. Post this matter on 4.8.2021. On that day any decision
that might have been taken by the Board, if any, shall be
placed on the record of this case.
C/LPA/228/2018 ORDER DATED: 07/07/2021
13. One copy of this order shall be furnished to Mr. Ashish
Shah, the learned counsel appearing for the bank for its
onward communication.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
