Shree Sabhrai Dudh Utpadak Sahkari ... vs The Kutch District Central Co-Op. Bank ...
2024 Latest Caselaw 1250 Guj

Gujarat High Court

Shree Sabhrai Dudh Utpadak Sahkari ... vs The Kutch District Central Co-Op. Bank ... on 13 February, 2024

Author: Sangeeta K. Vishen

Bench: Sangeeta K. Vishen

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     C/SCA/21889/2023                          ORDER DATED: 13/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21889 of 2023
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       SHREE SABHRAI DUDH UTPADAK SAHKARI MANDALI LTD.
                            Versus
         THE KUTCH DISTRICT CENTRAL CO-OP. BANK LTD.
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Appearance:
MR S M SOJATWALA(3499) for the Petitioner(s) No. 1,2,3
DARSHAN M VARANDANI(7357) for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 13/02/2024
                   ORAL ORDER

1. By this petition, the petitioners have prayed for quashing and setting aside the judgment and decree passed by the learned Board of Nominees, Rajkot passed in Lavad Suit no. 20 of 2021 dated 04.05.2022. This Court, has passed an order dated 04.01.2024 accepting the submissions made by the learned Counsel appearing for the petitioners. The petitioners-farmers have extended the assurance to deposit the outstanding amount coupled with the request that some installment be extended to the petitioners. Accepting the assurance, this Court, directed the respondents not to take any coercive steps and the aspect of deposit was to be considered on the returnable date.

2. Mr. Darshan Varandani, learned Advocate appearing for the respondent bank submitted that the amount was due since the year 2014 and the petitioners have willingly chosen not to deposit the same. The learned Counsel, extending the grace submitted that if the petitioners are ready and willing to deposit the amount, the bank has no objection. However, it was clarified that the payment should be done at the earliest and not as suggested by the

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petitioners of twelve months.

3. The petitioners since had expressed their willingness to deposit the amount with a request for installments and as the bank had agreed for such payment by installment and accordingly, order was passed. Apropos which, the petitioners had filed an undertaking before this Court that they shall deposit the outstanding amount within a period of four months. The matter, was thereafter adjourned to 12.02.2024, i.e. yesterday, when, it was reported by Mr.Varandani, learned Advocate, that the petitioners have failed to adhere to the assurance extended and the undertaking filed before this Court. Thus, the matter was kept today.

4. Mr. SM Sojatwala, learned Advocate has fairly conceded that the petitioners, have not not deposited the amount as assured before this Court. It is submitted that the Court may pass appropriate orders.

5. As stated hereinabove, on 04.01.2024, this Court, accepting the submissions and willingness expressed by the petitioners to deposit the outstanding amount, issued the notice and the respondents, were directed not to take any coercive steps. It was clarified that the aspect of deposit shall be considered later. Considering the submissions and the counter submissions made, this Court has passed an order dated 18.01.2024, which reads thus:

"Mr. S.M. Sojatwala, learned Advocate appearing for the petitioners submitted that the petitioner-society is ready and willing to deposit the amount; however, installment of twelve months may be made available, so that the petitioners can deposit the amount as directed by the learned Board of Nominees.

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2. Mr. Darshan Varandani, learned Advocate appearing for the respondent bank, states that the amount was due since the year 2014 and the petitioners had chosen not to deposit the same. So far as the aspect of subsidy of concerned, if any irregularities are found, the society, would not be entitled for any subsidy. In the present case, irregularities were reported inasmuch as, out of eleven members, whom the loan has been alleged to have been disbursed, seven members are not traceable and remaining four members, have reported that they have not received any amount. However, if the petitioners are ready and willing to deposit the amount, the bank has no objection, but only if the payment is done at the earliest and not as suggested by the petitioners by installment of twelve months.

3. Let the petitioners file an undertaking/affidavit before this Court that they shall deposit the outstanding amount within a period of four months from the date of receipt of copy of this order.

4. List the matter on 22.01.2022. Interim relief granted earlier, to continue till then."

Clearly, the petitioner-society, has expressed the readiness and willingness to deposit the amount and in furtherance thereof, an undertaking was also filed. Relevant excerpts from the undertaking are as under:

"I, Hussainbhai Sumarbhai Kumbhar, (President) Aged about years, Male, Occu: Business, Resi : Mukam-Post: MukamPost: Sabhrai, Tal:

Mandvi, Jilla Kutchh., state as under:

1] I state that I am the president of Shree Sabhrai Dudh Utpadak Sahkari Mandali Ltd having its office Mukam Post: Sambhrai, Tal. Mandvi, Jilla Kutchh.

2] I state that I had filed the petition before this Hon'ble Court challenging the Judgment and Order passed by the Ld Board of Nominees in Lavad Suit no 21 of 2021 dated 04/05/2022.

3] I state that this Hon'ble Court was pleased to grant stay and issue notice, wherein I had shown my willingness to pay the remaining amount which is due and payable by me.

4] I undertake to comply with the order passed by the Ld. Board of Nominees to pay the amount of Rs. 27,00,943/- with 12% interest and to pay the additional interest of 3% and whatever amount is finalized by the Respondent Bank.

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5] I state that as per the record whatever outstanding 5. amount is calculated by the respondent bank, 1 undertake to pay the said mount within 04(Four) months from the date of the order.

6] I state that the above referred matter was listed before this Hon'ble Court on dated 18/01/2024 and this Hon'ble Court was pleased to pass the order granting time of 04 (Four) months to pay the outstanding loan amount, vide order dated 18/01/2024, and the petitioner was directed toile the undertaking in relation to the said order and therefore the petitioner is inclined to file the said undertaking.

7] I undertake that as per the order, I the above named undertake to pay the amount whichever amount is finalized by the respondent bank within 04 (Four) Months from the date of the order without fail.

What is stated hereinabove is true to the best of my knowledge and I believe the same to be true"

6. It has been agreed before this Court by the petitioners that the petitioners undertake to comply with the order passed by the learned Board of Nominees to pay the amount of Rs.27,00,000/- with 12% interest so also the additional interest of 3%, and the amount as may be finalized by the bank. The petitioner had also expressed that the petitioners shall pay the amount within four months from the date of the order.

7. On the basis of the said undertaking and the discussion which took place, this Court passed an order dated 25.01.2024 recording thus:

"Mr S.M. Sojatwala, learned advocate for the petitioners, has tendered the undertaking of President of the petitioner no.1, inter alia, agreeing that the petitioner undertakes to pay the outstanding amount calculated by the respondent bank within a period of four months from the date of order. Said undertaking is directed to be taken on record.

2. Mr Darshan M. Varandani, learned advocate for the respondent no.1 states that what was agreed was four equal monthly installment to be paid by the petitioner. The undertaking is not as per the agreement and let the petitioners, pay the four equal monthly installment during the period of four months. Chart has been placed on record, copy whereof has been given to Mr S.M. Sojatwala,

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learned advocate, indicating four installment to be paid, starting from February 2024 to May 2024.

3. It is submitted that the total outstanding recoverable as per the award, is Rs. 36,65,513/- and four equal monthly installment would be Rs. 9,16,378/- and first installment be paid in the first week of February 2024. It is urged that let the petitioners adhere to the said schedule for, the amount is outstanding since the year 2014. Sufficient indulgence has been shown to the petitioners. Showing further indulgence, would not be interest of the bank.

4. Mr S.M. Sojatwala, learned advocate, has agreed for the said schedule. It is submitted that the petitioners shall pay the first installment during the month of February 2024.

5. Pertinently, the dues outstanding and recoverable are Rs. 36,65,513/-. In view of the statements made by learned advocates appearing for the respective parties, it would be appropriate that the proposal given by the bank is accepted by the petitioners and let the petitioners, make payment of the outstanding amount in four equal monthly installment to paid by 10th of every month.

6. For compliance, list the matter on 12.02.2024.

7. Interim relief granted earlier, to continue till then. "

8. Clearly, the total outstanding recoverable as per the award was Rs.36,65,513/- and four equal months installments were extended which, was to the tune Rs.9,16,378/-. The petitioners were to pay the first installment in the first week of February,2024. However, the petitioner has not deposited the same. Today, when the Court confronted the learned Advocate appearing for the petitioners, the request was made that the petitioners be allowed another two months i.e. by April, the petitioners would be in a position to deposit the amount.

9. It is not in dispute that the issue of the outstanding dues is pending since the year 2014. The learned Board of Nominees has passed judgment on 22.05.2022; whereas, the writ petition came to be filed in the month of December 2023, i.e. almost after 1-1/2 years. During the intervening period, there was sufficient time

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available to the petitioners; however, the petitioners chose not to deposit the amount and straightaway, as aforesaid, petition has been filed. Even during the pendency of the writ petition, sufficient opportunity was allowed to the petitioners, but the petitioners, thought it fit not to avail of the same. Considering the overall facts, this Court, is of the opinion that the petitioners, do not deserve any further indulgence.

10. The petition, on this limited ground, does not deserve to be entertained and is hereby dismissed. The interim protection extended, stands vacated. No order as to costs.

(SANGEETA K. VISHEN,J) SINDHU NAIR