Rafik Mustufabhai Bandi vs The Modasa Road Transport ...
2022 Latest Caselaw 8975 Guj

     C/SCA/6653/2022                                JUDGMENT DATED: 11/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6653 of 2022


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                               Sd/-
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1     Whether Reporters of Local Papers may be allowed                    No
      to see the judgment ?

2     To be referred to the Reporter or not ?                             No

3     Whether their Lordships wish to see the fair copy                   No
      of the judgment ?

4     Whether this case involves a substantial question                   No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                   RAFIK MUSTUFABHAI BANDI
                            Versus
    THE MODASA ROAD TRANSPORT COOPERATIVE SOCIETY LIMITED
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Appearance:
MR VISHVESHKUMAR H PANDYA(10227) for the Petitioner(s) No. 1
JAY B TRIVEDI(7474) for the Respondent(s) No. 1
MR D V KANSARA(7498) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                               Date : 11/10/2022

                              ORAL JUDGMENT

The present writ petition is filed with the following

prayers:-

"15(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or any other appropriate writ, order or directions quashing and setting aside the order dated 15.3.2022 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Revision Application No.19

C/SCA/6653/2022 JUDGMENT DATED: 11/10/2022

of 2022 as well as order dated 24.2.2022 passed by the Board of Nominees, Mehsana passed in Arbitration Case No.36 of 2022;

(B) Pending admission and final hearing of this petition, Your Lordships be pleased to stay the implementation, operation and execution of the order dated 15.3.2022 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Revision Application No.19 of 2022 as well as order dated 24.2.2022 passed by the Board of Nominees, Mehsana passed in Arbitration Case No.36 of 2022;"

2. The factual matrix of the present case is as under:-

2.1 That the petitioner is a Member of the respondent No.1 -

The Modasa Road Transport Cooperative Society Limited

["Society" for short] and has been elected on 14.11.2021 for a

period of 5 years. It is alleged that the petitioner had given

indiscriminate loans to the persons who were residing out of

area of operation of the respondent No.1 Society and during the

period of 2017 to 2021, the loans so sanctioned by the petitioner

were suffering from irregularities. Accordingly, the notice came

to be issued to the petitioner. The petitioner denied the

allegations against him. Again, the respondent No.1 Society

issued a notice dated 15.1.2022 whereto the reply so given by

the petitioner was not accepted and it was contended that the

actions taken by the petitioner as a Chairman of the Loan

Committee were in violation of Loan Advance Policy and

C/SCA/6653/2022 JUDGMENT DATED: 11/10/2022

therefore, he may be removed from the post of Member of the

Committee.

2.2 That the respondent No.1 Society issued an agenda on

19.1.2022 for the meeting to be held on 24.1.2022. In the said

meeting held on 24.1.2022, the Executive Committee Members

took a decision that the reply given by the petitioner was not

acceptable and the act committed by the petitioner was against

the interest of the Society and therefore, by majority, the

petitioner came to be removed from the post of Member of the

Executive Committee.

2.3 Being aggrieved by such removal, the petitioner preferred

Arbitration Case No.36 of 2022 before the learned Board of

Nominees, Mahesana. Along with the said petition, the petitioner

also preferred injunction application for staying the removal of

the petitioner as a Member of the Executive Committee. By ad-

interim relief, the learned Board of Nominees, Mahesana was

pleased to grant ad-interim injunction till the next date of

hearing. That on the next date of hearing, i.e. on 24.2.2022, the

learned Board of Nominees, after hearing both the parties,

rejected the application for grant of stay and vacated the ad-

C/SCA/6653/2022 JUDGMENT DATED: 11/10/2022

interim relief granted in favour of the petitioner.

2.4 Being aggrieved and dissatisfied with the order dated

24.2.2022 passed in Arbitration Case No.36 of 2022, the

petitioner preferred Revision Application No.19 of 2022 before

the Gujarat State Cooperative Tribunal. Learned Tribunal vide

order dated 15.3.2022 was pleased to reject the revision

application filed by the petitioner upholding the order passed by

the learned Board of Nominees.

2.5 Aggrieved, the present writ petition is filed.

3. Mr. Hemang Parikh, learned advocate for the petitioner

submitted that the petitioner is a Member of the respondent No.1

Society and was elected on 13.11.2016 for a term of 5 years and

during that term, he was elected as a Chairman of the Loan

Committee of the respondent No.1 Society. He further submits

that the petitioner again got elected on 14.11.2022 for a further

period of 5 years. He further submitted that during the term of

the petitioner as a Chairman of the Loan Committee, various

applications were submitted for obtaining loans, the petitioner

had sanctioned loan to one Pathan Mustakkhan Samsherkhan

C/SCA/6653/2022 JUDGMENT DATED: 11/10/2022

resident of Dungarpur to the tune of Rs.10 Lakhs. The said

decision of the Loan Committee was confirmed by the Manager,

Chairman and other Executive Members. He further states that

the other allegations with respect to some of the parties not

having submitted their hypothication document, etc. in such

cases, the petitioner has been wrongly held to be responsible.

3.1 While denying the allegation against him, it is submitted

that the duties of the Chairman is only to sanction the loan and

rest of the loan transactions are to be completed by the staff who

are managing the day today affairs and the staff who is

processing the loan files. He submits that a look at the agenda

for the meeting dated 24.1.2022 at Sr. No.9 shows that there

was only a discussion with respect to the notice issued to the

petitioner, whereas on the said date in the meeting, resolution

No.9 came to be passed removing the petitioner from the

Executive Committee which shows that the Committee exceeded

its jurisdiction. He further submitted that by resolution No.12,

another person has been nominated in place of the petitioner in

the Executive Committee which is also without jurisdiction. He

further submitted that, initially, learned Board of Nominees had

granted ad-interim relief to the petitioner, however, it

C/SCA/6653/2022 JUDGMENT DATED: 11/10/2022

erroneously rejected the said relief and the same ought to have

been confirmed. He submits that the forums below did not

appreciate that there is no provision to remove the Executive

Committee Member and the petitioner has been removed without

giving due notice and the same is illegal. He further submits that

there is a clear violation of Rule-32 of the Gujarat State

Cooperative Rules, 1949 and none of the ingredients as provided

for in Rule-32 have been committed by the petitioner and

therefore, the petitioner ought to have been granted interim

relief. It is further submitted that the Executive Committee

Members have deliberately and pre-determinedly passed the

resolution against the petitioner which is bad in law. He further

submits that even if it is accepted that some irregularities have

taken place, no financial loss has been caused to the respondent

No.1 Society neither any such allegation is made and therefore

also, it cannot be said that the petitioner has committed any

breach of the Loan Advance Policy.

In support of his contention, learned advocate for the

petitioner has relied on the judgments reported in AIR 1978 SC

1277 and 1984 (4) SCC 635.

C/SCA/6653/2022 JUDGMENT DATED: 11/10/2022

4. Heard learned advocate for the petitioner and perused the

documents on record.

5. At the outset, what has been impugned in the present writ

petition is the order whereby the ad-interim relief granted in

favour of the petitioner was vacated by the learned Board of

Nominees after hearing both the parties. That from the reply filed

on record by the respondent No.1 Society, it is, prima facie, seen

that the petitioner as a Chairman of the Loan Committee had

sanctioned loans which were contrary to the bye-laws and

detrimental to the interests of the Society. Instances have been

illustrated in the impugned orders also. For such irregularities,

the petitioner has also been issued due notice and reply was also

sought from him. The Managing Committee of the respondent

No.1 Society did not accept such reply. After looking into the

factual aspects and the loan instances, learned Board of

Nominees was pleased to vacate the ad-interim ex-parte relief

granted in favour of the petitioner. Learned Tribunal vide its

order dated 15.3.2022 has also upheld the order vacating the

ad-interim ex-parte relief after taking into consideration the loan

transactions sanctioned by the petitioner as brought on record

by the respondent No.1 Society. The petitioner has not denied

C/SCA/6653/2022 JUDGMENT DATED: 11/10/2022

such loan transactions but has tried to transfer his

responsibility on the Manager and other staff of the respondent

No.1 Society for such irregularities. Further, it is not denied that

loan was also granted to a person who was residing out side the

area of operation of the Society and the only explanation given

was that the said loan transaction has later been approved by

the Managing Committee and therefore, he is not solely

responsible for the same. The judgments as relied upon by the

learned advocate for the petitioner are not applicable in the facts

and circumstances of the present case and are of no help to the

case of the petitioner. Considering the factual instances as

enumerated herein above and the contentions as raised, no

interference is called for in the impugned orders passed by the

fora below. It is needless to say that the observations made in

the impugned orders are prima facie in nature and only for the

purpose of adjudicating the interim relief prayed for by the

petitioner pending the suit. It is also needless to say that the

Lavad Suit filed by the petitioner will be decided on its own

merits in accordance with law after due consideration of the

evidence on record and the contentions raised by the parties.

C/SCA/6653/2022 JUDGMENT DATED: 11/10/2022

Accordingly, the present writ petition is dismissed. No

order as to costs. Rule is discharged.

Sd/-

(ANIRUDDHA P. MAYEE, J.)

KAUSHIK D. CHAUHAN