Meghajibhai Dharamsibhai ... vs State Of Gujarat
2021 Latest Caselaw 13818 Guj

      C/SCA/11830/2021                                    ORDER DATED: 13/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11830 of 2021

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          MEGHAJIBHAI DHARAMSIBHAI GADHIYA LEGAL HEIR OF
               DHARAMSIBHAI N GADHIYA (DECEASED)
                              Versus
                        STATE OF GUJARAT
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Appearance:
HARSHADA K DARJI(7537) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR ANIP A GANDHI(2268) for the Respondent(s) No. 2
MR TEJAS P SATTA(3149) 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 : 13/09/2021

                                     ORAL ORDER

1. Heard, learned Advocate Ms. Harshada Darji for the petitioner and learned Advocate Mr. Tejas Satta for Respondent No.2.

2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

"31. ...

(a) For a declaration that the impugned orders dated 29.07.2021 and 05.08.2021 passed by the Ho'ble Debts Recovery Tribunal-II at Ahmedabad on SA No. 22 of 2021, are arbitrary, baseless, patently unfair and contrary to law, and are violative of Articles 14 and 21 of the Constitution of India.

(b) For a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or

C/SCA/11830/2021 ORDER DATED: 13/09/2021

direction under Articles 226 and 227 of the Constitution of India calling for the records of the case in proceeding filed in Securitization Application No. 22 of 2021 and after going into the legality thereof, to quash and / or set aside the impugned orders dated 29.07.2021 and 05.08.2021 passed by the Hon'ble Debts Recovery Tribunal - II at Ahmedabad on SA No. 22 of 2021;

(c) Pending the hearing and final disposal of the present petition, for a stay of the confirmation of the sale schedule on 11.08.2021 for auction sale notice dated 2.7.2021 is heard and decided by the Debts Recovery Tribunal-II, Ahmedabad.

(d) For ad interim reliefs in terms of prayer clause

(c) above

(e) For costs of this petition

(f) ..."

3. This Court (Coram: Ms. Sangeeta K. Visher, J.), passed following order on 19.08.2021:

"1. Ms. Harshada K. Darji, learned advocate appearing for the petitioner, submitted that the petitioner is the legal heir of Shri Dharamshibhai N. Gadhiya, the guarantor. It is submitted that the Shri Dharamshibhai N. Gadhiya passed away on 7.9.2017, however, the bank has issued a notice dated 2.7.2021 in the name of Shri Dharamshibhai N. Gadhiya. Attention is invited to page no.22A of the captioned petition to substantiate the said contention, which reads to the effect that notice is given to the public in general and in particular to the borrower, i.e., M/s. Pramukh International and

C/SCA/11830/2021 ORDER DATED: 13/09/2021

mortgagors/guarantors, i.e., Shri Vallabhbhai D. Gadhiya, Shri Nareshbhai D. Gadhiya, Shri Pankajbhai D. Gadhiya, Shri Khimjibhai D. Gadhiya, Shri Dharamshibhai N. Gadhiya, Ms. Ashaben N. Gadhiya, Ms. Kamalaben N. Gadhiya and Ms. Mamtaben N. Gadhiya.

2. It is submitted that the said fact was brought to the notice of the bank, however, the respondent-bank, has not considered the same and simply denied the fact.

3. It is submitted that the petitioner has submitted an application seeking amendment. The Securitization Application No.22 of 2021 was listed for hearing on 29.7.2021 when, the matter came to be further listed for hearing on 5.8.2021. However, on 5.8.2021, the learned Presiding Officer, DRT-II, Ahmedabad concluded the arguments and listed the matter for pronouncement of judgment on 23.8.2021. It is submitted that if the judgment is pronounced, the application of the petitioner, would be rendered infructuos.

4. Shri Dharamshibhai N. Gadhiya, a guarantor has passed away on 7.9.2017 and prima facie it appears that the bank has issued the notice in the name of a dead person.

5. Having regard to the submissions made by the learned advocate for the petitioner, issue notice, returnable on 26.8.2021.

6. Learned Presiding Officer, DRT-II, Ahmedabad has fixed the matter for pronouncement of the judgment on 23.8.2021. It is directed to defer the pronouncement till the next date of hearing.

7. Direct service today, is permitted."

C/SCA/11830/2021 ORDER DATED: 13/09/2021

4. Learned Advocate Ms. Darji submitted that the application for amendment filed by the petitioner for placing the auction proceedings on the record of Securitization Application No. 22 of 2021 was kept by the Tribunal for hearing along with the main matter and the learned Advocate for the petitioner was persuaded to argue the main matter on 05.08.2021, without deciding the application for amendment.

4.1 It was submitted that if the application for amendment filed by the petitioner for placing the auction proceedings on the record is not decided it would result into multiplicity of the proceedings, as the petitioner has challenged the notice issued by Respondent No.2-Bank on the ground that the same is without jurisdiction, as the notice was issued against a dead person. It was therefore submitted that in such circumstances, Respondent No.2-Bank ought to have joined Auction Purchaser on 29.07.2021. However, Respondent No.2-Bank, after disclosing success of auction proceedings, did not take any step and therefore the petitioner is required to file an application for amendment.

4.2 It was submitted that, if, the Tribunal decides to pronounce the final judgment, without permitting the amendment, the interest of the Auction Purchaser would be jeopardized.

5. On the other hand, learned Advocate Mr. Satta for Respondent No.2- Bank submitted that the Tribunal has kept the application for amendment filed by the petitioner for hearing along with the main matter and the same is, now, kept for pronouncement of the judgment vide order dated 05.08.2021.

5.1 It was therefore submitted that if the Tribunal allows the application for amendment filed by the petitioner, necessary steps will be taken by the Tribunal to join the Auction Purchaser and therefore no interference is required to be made in exercise of the inherent powers under Article 227 of the Constitution of India.

C/SCA/11830/2021 ORDER DATED: 13/09/2021

6. Having heard the learned Advocates for the respective parties, it appears that the property has been successfully auctioned on 28.07.2021 and the same was disclosed by Respondent No.2-Bank during the course of hearing before the Tribunal on 29.07.2021. Then, the Tribunal passed following order on 05.08.2021:

"Ld. Counsel Ms. Harshada Darji for the Applicant is present.

Ld. Counsel Mr. K.N. Shah for the Respondent Bank is present.

Today this matter has come up for virtual hearing.

Ld. Counsel for the Applicant filed affidavit of the Applicant. The same is taken on record.

Heard argumetns of Ld. Counsel for the parties at length.

List the matter for pronouncement of judgment on 23/08/2021."

6.1 It appears that pursuant to the application for amendment filed by the petitioner before the Tribunal, the Tribunal has, without deciding the same, kept the same with the main matter for pronouncement of the judgment, which may initiate further litigation. In order to avoid such multiplicity of the proceedings, the Tribunal is required to be directed to decide the application for amendment filed by the petitioner on merits and thereafter pass necessary orders.

6.2 If the application for amendment filed by the petitioner is allowed by the Tribunal, the petitioner shall be required to file an application for joining Auction Purchaser and the Tribunal may be required to give an opportunity to the Auction Purchaser, while deciding Securitization Application No. 22 of

C/SCA/11830/2021 ORDER DATED: 13/09/2021

2021.

7. In view of the above, this petition is PARTLY ALLOWED and the impugned order dated 05.08.2021 passed by the Tribunal is QUASHED and set aside. The Tribunal is DIRECTED to hear the application for amendment filed by the petitioner and if, such an application is allowed, the petitioner may file an application for joining Auction Purchaser before the Tribunal which may be heard and decided in accordance with law.

7.1 It is clarified that this Court has not entered into the merits of the matter and the Tribunal shall decide the application for amendment in Securitization Application No. 22 of 2021 in accordance with law. Notice is discharged.

(BHARGAV D. KARIA, J) UMESH/-