IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13217 of 2007 with SPECIAL CIVIL APPLICATION NO. 13229 Of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= M/S JIVAN CONSTRUCTION THRO' CHETANBHAI RANCHHODBHAI -
Petitioner(s) Versus SARASPUR NAGRIK SAHAKARI BANK LTD, THRO' SHRI H.R. PATEL & 2 - Respondent(s) ========================================================= Appearance :
MR MB GANDHI for Petitioner(s) : 1,MR CHINMAY M GANDHI for Petitioner(s) : 1, MR SHIRISH JOSHI for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 3.
RULE NOT RECD BACK for Respondent(s) : 2 - 3.
========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/08/2012 CAV JUDGMENT
1. As common questions of fact and law are involved in these petitions, they were heard together and disposed of by way of this common judgment and order.
2. By way of these petitions under Articles-226 and 227 of the Constitution of India, the petitioner – a Partnership firm has prayed for the following reliefs – “9.
(a) Writ of mandamus or any other suitable writ in the nature of mandamus be issued whereby, this Hon’ble Court be pleased to direct the respondent no.3 herein a private party either to deposit before this Hon’ble Court a sum of Rs.55 lacs adhoc or in the bank account or in the execution proceedings so as to close the bank account.
(b) That by appropriate writ, order or direction, the Hon’ble Court be pleased to hold and declare that when 18% p.a. interest on which the amount was lent, there cannot be 24% p.a. interest and if it is charged, that be declared as illegal and, therefore, that additional interest be ordered to be quashed and set aside.
(c) Hon’ble Court be pleased to issue a mandate that according to the bank’s policy, the settlement which is arrived at with various parties, the bank be directed to give the same treatment to the petitioner and by forging the interest, only by accepting the capital amount or reduced amount of interest, at which the settlement be made.
(d) Hon’ble Court be pleased to direct the respondent no.2 –Executing Court to quash and set aside the proceedings for want of prosecution.
(e) Pending hearing and final disposal of this petition, the Hon’ble Court be pleased to direct the respondent no.3 herein to deposit the amount of Rs.55 lacs either in this Hon’ble Court or in the bank account of the petitioner and to direct the respondent no.1-bank to stop the running interest in the said account.
(f) Cost of this petition and any other relief which this Hon’ble Court may deem fit and just be granted in the interest of justice.”
2. Facts shortly stated be thus –
2.1) The petitioner- a Partnership firm availed of loan facility from the respondent Bank. Due to financial crunch petitioner was unable repay the loan. Ultimately suits were filed and Awards were passed. Bank also filed Execution of Awards. The petitioner was directed to pay the outstanding dues of the Bank and for that purpose a pursis was given to the trial Court and on the said pursis the trial court passed an order that the property be attached. Orders under Order-21, Rule-54 and 64 of C.P.C, were passed, but no steps were taken. According to the petitioner Bank was not interested in taking any steps, as a result of which the amount of interest kept on mounting. The grievance of the petitioner is that the execution proceedings were dismissed for non-prosecution and the bank also failed to sell the property and was not allowing the petitioner also to sell the property. Under such circumstances the petitioner had prayed that the respondent no.3 – private party be directed to deposit in this Court a sum of Rs.55 lacs or in the bank account or in the execution proceedings so as to close the bank account.
3. Respondent bank has appeared in response to the notice issued. The stand of the Bank is that the petition is not maintainable as respondentno.1 Bank is not a State within the meaning of Article-12 of the Constitution of India. It is also the stand of the Bank that the respondent nos.2 and 3 have also been joined as party respondents for no reason as they are not party to any proceedings. Respondent no.2 is a Civil Judge (S.D.) and is presiding over the Executing Court where the execution applications of respondent Bank are pending and in progress. According to the Bank the petition is not maintainable as the issues raised therein are covered between the parties in the judgment and order dated 28/3/2004 rendered by learned Single Judge of this Court in Special Civil Application no.2388/2004 and Special Civil Application No.2392/2004.
4. Having heard the learned counsel for the respective parties and having gone through the materials on record I find that there are highly disputed questions of fact involved in the petitions. Over and above, the relief which has been prayed for is somewhat in the nature of a money decree sought to be prayed for by the petitioner in a writ petition. Under the circumstances, I am of the view that both the petitions are devoid of any merit and they are accordingly rejected with no order as to cost. Rule discharged.
(J.B.PARDIWALA, J.) Ashish N.