Gujarat High Court
Jigneshbhai Kantibhai Vakhariya vs The District Registrar, ... on 11 October, 2021
Bench: Bhargav D. Karia
C/SCA/10116/2021 ORDER DATED: 11/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10116 of 2021
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JIGNESHBHAI KANTIBHAI VAKHARIYA
Versus
THE DISTRICT REGISTRAR, CO-OPERATIVE SOCIETIES
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Appearance:
MR TUSHAR L SHETH(3920) for the Petitioner(s) No. 1
MR CHIRAG B PATEL(3679) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 11/10/2021
ORAL ORDER
Heard learned advocate Mr.Tushar Sheth for
the petitioner, learned Assistant Government
Pleader Mr.Dhawan Jayswal for the respondent No.1
and and learned advocate Mr.Chirag Patel for the
respondent No.2.
2. This Court passed the following order on 15th
July, 2021 :
"Heard learned advocate Mr.Tushar Sheth for the
petitioner.
2. Following prayers are made in this petition.
"(A) To quash and set aside the auction
proceedings of the properties of the petitioner
and guarantors mentioned in the paper notice
dt. 27.5.2021 of the respondent-bank at serial
no. 2; and further be pleased to direct the
respondent-bank not to auction the residential
property of the guarantors as well as two shops
of the petitioner, less than the valuation of
C/SCA/10116/2021 ORDER DATED: 11/10/2021
the property shown in the three valuation
reports dt. 17.4.2021 and 5.2.2010 of
Government Registered Valuer, who is on panel
of the respondent-bank which was accepted by
the respondent-bank at the time of granting
hypothecation loan facility;
(B) Pending admission and final disposal of
this petition, be pleased to stay the auction
proceedings of the properties of the petitioner
and guarantors mentioned in the paper notice
dt. 27.5.2021 of the respondent-bank at serial
no. 2."
3. Respondent-Bank instituted Summary Suit No.169 of
2017 which came to be decreed and said judgment and
decree was further confirmed by the Gujarat State
Co-operative Tribunal in Appeal as per judgment
dated 25th March, 2019, resultantly the petitioner-
loanee and the guarantors, who have not approached
this Court, were held liable to pay jointly and
severally, amount of Rs.35,05,182/- with interest
which are the dues of the Bank towards unpaid loan.
3.1 In the process of realisation of dues, Bank
contended to hold auction which was once cancelled
in the past. As per the say of the petitioner, he
has received WhatsApp message that auction will take
place on 16th July, 2021. Therefore, the present
petition came to be filed with prayers as above.
3.2 In the loan transaction of the Bank, petitioner
had mortgaged two commercial shops situated on
ground floor at Village Pardi (Kumbaji), Gondal
Rajkot. The Guarantors to the loan mortgaged another
property which is residential house knonw as Durga
Niketan situated in the same village on the Bus
Station Road, Opp.Union Bank of India.
4. It is the case of the petitioner that while
extending loan facilities and while taking the above
properties in mortgage, valuation was undertaken by
the Bank through government approved valuer. The
valuation report, which is produced on record of the
petition, shows that in the said year, in valuation
C/SCA/10116/2021 ORDER DATED: 11/10/2021
report, two shops were valued at Rs.03,29,400/- and
Rs.03,36,000/- respectively. The residential
property was valued at Rs.47,31,000/- and its
distressed sale value was put at Rs.37,84,800/-. It
is the contention of the petitioner that despite
above valuation report which was obtained in the
year 2014 and now the properties may fetch even
higher value, Bank is likely to dispose of the
properties at a lower price than mentioned even in
the valuation report. This will prejudice the rights
of the petitioner, it was submitted.
4.1 It was further submitted that in the auction
notice, normal procedure is departed from by not
mentioning the upset price. It gives rise to
apprehension that the properties may be colusively
disposed of below the valuation.
4.2 Learned advocate for the petitioner made a
statement that he had already paid Rs.15,19,000/-
towards the dues of the Bank. It is the case of the
petitioner that due to the trying family
circumstances and the financial constraint, he is
not able to pay any amount at present. Therefore, he
is not in a position to oppose the auction of the
properties, provided however that proper price
representing the market value could be recovered.
5. Notice, returnable on 05th August, 2021.
6. By way of ad-interim relief, it is observed and
provided that the respondent Bank shall be at its
discretion whether to proceed with the auction of
the properties in question or not. If the Bank
decides to go on with the auction in its discretion,
each and all steps which may be taken in the process
of auction, shall not be final and they shall be
subject to the orders which may be passed by this
Court. In any case, the auction shall not be
finalised by the respondent Bank.
Direct service is permitted, today."
3. Learned advocate Mr.Chirag Patel appearing
C/SCA/10116/2021 ORDER DATED: 11/10/2021
for the respondent No.2, at the outset, submits
that the respondent No.2 Bank shall issue a fresh
notice of auction after obtaining the valuation
report from the government approved valuer who is
on the penal of the respondent No.2 Bank. Learned
advocate Mr.Patel further submitted that if the
petitioner also desires to give a valuation
report of the property of the petitioner which is
mortgaged with the respondent No.2 Bank, the
petitioner can also provide such valuation report
from the government approved valuer which will be
considered by the respondent Bank for auction of
the property which is mortgaged by the
petitioner. Learned advocate Mr.Patel further
submitted that the respondent Bank shall complete
the formality of obtaining the fresh valuation
report within a period of two weeks from today.
4. Learned advocate Mr.Tushar Sheth appearing
for the petitioner also submits that the
petitioner shall, if desires, submit such
valuation report of the government approved
valuer on behalf of the petitioner within a
period of two weeks from today.
5. In view of the above submissions, without
entering into the merits of the matter, the
petition is disposed of at this stage. Notice is
discharged.
(BHARGAV D. KARIA, J)
dolly
