Gujarat High Court
M/S Mehta Ayurvedic Pharmacy vs The Baroda People Cooperative ... on 1 November, 2023
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/7267/2023 ORDER DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7267 of 2023
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M/S MEHTA AYURVEDIC PHARMACY
Versus
THE BARODA PEOPLE COOPERATIVE BANK LTD.
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Appearance:
MR H.M. PARIKH SENIOR ADVOCATE with MR.D K.PUJ(3836)
for the Petitioner(s) No. 1,2,3
MR RASESH H PARIKH(3862) for the Respondent(s) No. 1
MR.HEMANG H PARIKH(2628) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 01/11/2023
ORAL ORDER
1. By way of this petition, the petitioners have
challenged the order dated 16.3.2023 passed by
the Gujarat State Co-operative Tribunal in
Appeal No.645 of 2006 confirming the order dated
30.6.2006 by the Board of Nominees, Vadodara in
Lavad Case No.674 of 2002.
2. By way of order dated 30.6.2006, Board of
Nominees, Vadodara allowed the Lavad Suit No.674
of 2002 preferred by the respondent No.1 and
decreed the suit in favour of respondent No.1 by
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directing the petitioner to pay a sum of
Rs.24,79,459/- from 1.4.2002 along with 16%
interest and cost of Rs.6180/-.
3. The Co-operative Tribunal vide impugned order
dated 16.3.2023 confirmed the aforesaid order
and dismissed the Appeal No.645 of 2006
preferred by the petitioners. Being aggrieved by
the same, the petitioners have preferred this
petition.
4. Heard learned advocate Mr. D.K. Puj appearing
for the petitioners and learned senior advocate
Mr. H.M. Parikh with learned advocate Mr. Kishan
Dave appearing for the respondent No.1 Bank.
5. The respondent Bank lended an amount of
Rs.15,00,000/- at the interest rate of 17% per
annum to the petitioner and as the said amount
could not be repaid as per the terms of loan
agreement, the bank preferred Lavad Suit No.674
of 2002 before Board of Nominees at Vadodara. In
the aforesaid suit, though the present
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petitioners specifically took a contention that
the petitioner is not a member of respondent
Bank and therefore, the dispute between bank and
present petitioner cannot be termed as a dispute
under Section 96 of Co-operative Societies Act
and therefore, the Board of Nominees, Vadodara
does not have jurisdictions to adjudicate the
aforesaid dispute. The Board of Nominees,
Vadodara even after framing the aforesaid issue
about whether the petitioner can be termed as
members of the respondent Bank or not, decided
the suit in favour of respondent No.1 Bank and
directed the petitioner to pay a sum of
Rs.24,79,459/- from 1.4.2002 with 16% interest
to the respondent Bank till the date of
realization.
6. The aforesaid order was carried in appeal by the
petitioner before the Co-operative Tribunal by
Appeal No.645 of 2006.
7. Even before the lavad suit was filed by the bank
before the Board of Nominees, Vadodara, the bank
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had preferred a Summary Special Suit No.138 of
2000 before the Court of learned Civil Judge
(Senior Division) at Vadodara. In that suit, the
bank took a specific stand that the present
petitioner was not the member of respondent No.1
Bank and therefore, for recovery of loan amount
of Rs.15,00,000/-, Summary Suit No.138 of 2000
was preferred by the bank.
8. However, that suit remained pending, while in
2006, the subsequent lavad suit preferred in the
year 2002 was decided by the Board of Nominees
and against that appeal before the Co-operative
Tribunal was pending.
9. In the Civil Court, the aforesaid Summary Suit
No.138 of 2000 upon its transfer to another
Court was renumbered as Commercial Summary Civil
Suit No.175 of 2019 and in that the present
petitioner on 8.1.2020 preferred an application
below Exh.18 challenging the jurisdiction of
Civil Court. In the aforesaid application in
paragraph No.3, a specific averment was made by
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the petitioner stating that the petitioner
obtained loan from respondent No.1 Bank in
capacity as member of the aforesaid bank and in
the prayer also, it was specifically stated that
as the petitioner is the member of the
respondent No.1 Co-operative Bank, for recovery
of the outstanding amount of the bank, the bank
before the Board of Nominees and therefore, the
suit is barred by jurisdiction and therefore,
the same may be dismissed.
10. Upon hearing the aforesaid application,
learned Principal Senior Civil Judge, Commercial
Court, Vadodara passed an order on the very same
day i.e. 8.1.2020 taking note of the fact that
the lavad Case No.674 of 2002 has been decreed
in favour of the respondent Bank, vide order
dated 30.6.2006. It is noteworthy that in the
application below Exh.18, the present petitioner
did not disclose that the aforesaid order dated
30.6.2006 has been carried in appeal by the
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petitioner itself and that appeal has not yet
been decided and therefore, learned Principal
Senior Civil Judge, Commercial Court, Vadodara
by taking note of the fact that the lavad Suit
No.674 of 2002 has been decreed in favour of the
respondent No.1 Bank, allowed the application
below Exh.18 and thereby, the suit being
Commercial Civil Suit No.175 of 2019 was
dismissed as having barred by Section 166 of
Co-operative Societies Act, 1961.
11. On the basis of the aforesaid order dated
8.1.2022, when the same was produced before the
Co-operative Tribunal, even the Co-operative
Tribunal dismissed the appeal preferred by the
petitioner by impugned order dated 16.3.2023, by
taking note of the fact that there is an
admission on the part of the petitioner before
the Civil Court at Vadodara in Commercial
Summary Civil Suit No.175 of 2019 that the
petitioner is the member of the bank and
therefore, the Civil Court does not have
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jurisdiction to adjudicate the dispute between
the petitioner and respondent Bank and on the
basis of the aforesaid fact coupled with other
reasons stated in the order, Appeal No.645 of
2006 preferred by the petitioner was rejected.
Being agreed by the aforesaid order dated
16.3.2023, the petitioner has preferred this
petition.
12. Learned advocate Mr. D.K. Puj appearing for
the petitioners submitted that the appeal
preferred by the petitioners being Appeal No.645
of 2006 was against the order dated 30.6.2006
passed by Board of Nominees, Vadodara in Lavad
Suit No.674 of 2002 and therefore, the Tribunal
was required to examine the validity of the
order dated 30.6.2006 passed in Lavad Suit
No.674 of 2002 and could have not considered any
so-called admission on the part of the
petitioner which has come much after the
aforesaid lavad suit was decided.
12.1 Learned advocate Mr. D.K. Puj further
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submitted that while allowing the suit preferred
by the respondent No.1 Bank vide order dated
30.6.2006 though an issue was framed about
jurisdiction, the aforesaid issue was never
decided by the Tribunal and therefore, the
Tribunal completely overlooked the aspect of
jurisdiction which has remained undecided by the
Board of Nominees and considered the subsequent
so-called admission by the petitioner and
therefore, the impugned order is erroneous, bad
and requires to be quashed and set aside.
13. Learned senior advocate Mr. Parikh
appearing with learned advocate Mr. Kishan Dave
for the respondent Bank submitted that the
application below Exh.18 was submitted by the
present petitioner himself. He himself conceded
before the Civil Court that he is the member of
respondent No.1 bank. Learned Senior Counsel Mr.
Parikh further pointed out from the application
below Exh.18 submitted by the petitioner before
the Civil Court, Vadodara that in this entire
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application, there is no reference about Appeal
No.645 of 2006 preferred by the petitioners
before the Co-operative Tribunal to indicate
that the order dated 30.6.2006 in Lavad Suit
No.674 of 2002 was challenged by the petitioner.
In absence of there being any averment
indicating that the order dated 30.6.2006
whereby the Lavad Suit No.674 of 2002 was
allowed, was under challenge, the Civil Court
was kept in dark by the petitioner himself and
therefore, once upon the petitioner's
application, the suit was held to be without
jurisdiction, the petitioner cannot take a
contrary stand before this Court, while
challenging the impugned order and say that it
is the Civil Court which can have the
jurisdiction and not the Board of Nominees. He
submitted that the petitioner has taken a stand
before Civil Court as well as Board of Nominees
that both the forums do not have jurisdiction to
adjudicate the issue on hand. He submitted that
once the petitioner's application about
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jurisdiction is entertained by the Civil Court,
the same would amount to admission and
therefore, in view of judgment of the Hon'ble
Supreme Court in case of Sitaramacharya (Dead)
through Legal Representatives Versus
Gururajacharya (Dead) through Legal
Representatives reported in (1997) 2 SCC 548,
even if the aforesaid admission cannot be said
to be conclusive proof of the matter, the same
would operate as estoppel against the present
petitioner.
13.1 By relying upon the aforesaid judgment,
learned senior advocate Mr. Parikh submitted
that when the petitioner has contested both the
suits before the Board of Nominees as well as
Civil Court on the ground of jurisdiction
stating that the relevant forum does not have
the jurisdiction, the respondent Bank cannot be
non-suited. He submitted that therefore, on the
basis of admission of the petitioner, when the
suit has been dismissed and Board of Nominees
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has already decreed the suit in favour of the
petitioner, the tribunal was justified in
rejecting the appeal preferred by the petitioner
by taking note of the order dated 8.1.2020
passed below Exh.18 in Summary Civil Suit No.175
of 2019 and thereby, rejecting the Appeal No.645
of 2006.
13.2 Learned senior advocate Mr. Parikh also
pointed out that the decree of the Civil Court
would act as res-judicata against the present
petitioner and therefore, now the petitioner
cannot take benefit of the decree which is in
his favour to challenge the jurisdiction of
Board of Nominees on that ground.
13.3 Learned senior advocate Mr. Parikh also
submitted that in a petition under Article 227
of the Constitution of India, the petitioner
cannot be permitted to take two contrary stands
and that also with a view to avoid the
jurisdiction of the Board of Nominees before
which not only the suit was proceeded and
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decreed in favour of the petitioner but even the
appeal is also dismissed. By making the
aforesaid submissions, he prayed for dismissal
of this petition.
14. I have heard learned counsels appearing for
the respective parties and perused the record.
On perusal of the record, I found that it is
true that the Board of Nominees has vide order
dated 30.6.2006 decided the Lavad Suit No.674 of
2002 in favour of the respondent No.1 bank and
it is also equally true that while deciding the
Lavad Suit No.674 of 2002 though issue No.2 was
framed in respect of jurisdiction, the aforesaid
issue remained undecided. However, once the
aforesaid judgment was challenged by the
petitioner before the Co-operative Tribunal, it
was the duty of the petitioner to state in
application below Exh.18 before the Civil Court
placing the correct facts on record. The
petitioner did not state anything about the
pendency of appeal in an application below
Exh.18 and admitted the fact that he is a member
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of the respondent No.1 Bank and also submitted
that Lavad Suit No.674 of 2002 has been decreed
in favour of the respondent Bank vide order
dated 30.6.2006. When the petitioner himself did
not disclose anything about pendency of Appeal
No.645 of 2006 before the Civil Court at
Vadodara, the Civil Court, Vadodara based on the
aforesaid application below Exh.18 dismissed the
suit preferred by the respondent No.1 on the
ground that it is the Board of Nominees which is
having jurisdiction to adjudicate the dispute
between the parties. In fact, the petitioner's
specific prayer in application below Exh.18 was
that it is not the Civil Court and only Board of
Nominees which is having jurisdiction to
adjudicate the dispute and therefore, the suit
was decreed against the bank - respondent No.1
herein, on the basis of aforesaid application
preferred by the petitioner.
14.1 When the aforesaid order dated 8.1.2020
passed by the Civil Court Vadodara in Summary
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Civil Suit No.175 of 2019 was placed before the
Co-operative Tribunal, considering the aforesaid
admission of the petitioner, the appeal was
dismissed by the Board of Nominees, Vadodara.
While dismissing the appeal preferred by the
petitioner, the Board of Nominees has also given
other cogent reasons but the petition was mainly
contested by learned advocate Mr. Puj only on
one ground that though the Civil Court is having
jurisdiction to decide the dispute and though
the issue in respect of same was framed by the
Board of Nominees, the same was not decided by
the Board of Nominees and ignoring that vital
aspect only on the basis of order dated 8.1.2020
passed below Exh.18 in Commercial Summary Civil
Suit No.175 of 2019, the Tribunal has rejected
the appeal preferred by the petitioner.
14.2 Considering the judgment of the Hon'ble
Supreme Court in case of Sitaramacharya (Supra)
relied upon by learned senior counsel Mr. Parikh
whereby a view is taken that an admission by the
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party may not be a conclusive evidence but still
the same would operate as estoppel against the
person who has admitted the fact in the instant
case. In view of aforesaid judgment, when the
petitioner himself has given an application
before the Civil Court at Vadodara and
specifically stated that he was the member of
the respondent bank and therefore, in view of
order dated 30.6.2006 passed in Lavad Suit
No.674 of 2002, the Civil Court would not have
jurisdiction to adjudicate the dispute and the
same is only with Board of Nominees, the
petitioner cannot challenge the order dated
16.3.2023 passed by the Co-operative Tribunal
dismissing the appeal on the basis of aforesaid
admission of the petitioner.
14.3 Since the order dated 16.3.2023 has not
been challenged on any other ground and no other
submissions are made except for the submissions
recorded herein above, I don't see any
illegality committed by the Co-operative
Tribunal while passing the order dated 16.3.2023
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and thereby, dismissing the appeal preferred by
the petitioner. In view of above observations
and discussions, the present petition is
required to be dismissed and the same is
dismissed accordingly. Notice is discharged. No
order as to costs.
(NIRZAR S. DESAI,J)
Pallavi
