1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"a. Your Lordships be pleased to admit this petition.
b. Your Lordships be pleased to issue writ of certiorari or any other writ, order or direction by holding that the order of the Ld. Gujarat State Cooperative Tribunal Dt.22.09.2011 in Civil Misc. Application No.19 of 2010 [in Lavad Case No.648 of 1999] is bad in law, ultra-virus, unconstitutional and it be quashed and set aside.
c. Your Lordships be pleased to issue writ of certiorari or any other writ, order or direction by holding that the notice by the respondent Bank Dt.03.11.2011 is bad in law, ultra-virus, unconstitutional and it be quashed and set aside.
d. Your Lordships be pleased to stay the implementation and execution of that the recovery proceedings initiated by the Bank against the petitioner by notice Dt.03.11.2011 pending admission, hearing and final disposal of this petition.
e. Your Lordships be pleased to grant any other relief/s as may be necessary for the just disposal of the case."
2. Heard Mr.K.R. Dave, learned counsel appearing for the petitioner. Mr.Dave has taken this Court to the impugned order dated 22.09.2011 passed by the Gujarat State Cooperative Tribunal in Civil Misc. Application No.19 of 2010 whereby, the Tribunal was pleased to reject the said application filed for condonation of delay in filing the appeal against judgment and award dated 08.09.2000 passed in Lavad Case No.648 of 1999.
3. Mr.Dave also invited attention of this Court to the fact that by notice dated 03.11.2011, purported to have been issued under the provisions of Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 'SARFAESI Act'.), the respondent-Bank has now, sought further proceedings as contemplated under Section 13(4) of the SARFAESI Act.
4. Perusing the impugned order dated 22.09.2011 passed by the Tribunal, following glaring facts are noticed:-
(a) Lavad Suit No.648 of 1999 came to be disposed of by the Board of Nominees, Bhavnagar vide judgment and award dated 08.09.2000.
(b) The petitioner approached the Tribunal by way of filing Civil Misc. Application No. 19 of 2010 and in the said application, in paragraph 3, it appears that he acquired the knowledge of the judgment and awarded 08.09.2000 only when the respondent-Bank issued notice dated 14.12.2009 under Section 13(2) of the SARFASI Act.
(c) During the hearing of the said application before the Tribunal, the Tribunal has, on the basis of the record, clearly come to the conclusion that the present petitioner had suppressed material fact to the effect that the respondent-Bank, through its competent officer, had issued notice for recovery on 12.05.2001. It also transpires from the order passed by the Tribunal that thereafter, notices were issued on 17.11.2001, 25.10.2002, 18.11.2002, 31.01.2004 and 08.06.2004. Further notices were also issued on 30.11.2004 and 14.12.2004. It further transpires that in fact, the petitioner had sent reply to the said notice through his advocate on 05.01.2010 which also replied by the respondent-Bank vide reply dated 08.01.2010. The Tribunal has recorded on the basis of the documentary evidence that notice dated 18.12.2002 issued by the Bank has been replied by the petitioner. The Tribunal has further recorded that the other notices have also been received by the petitioner. It also transpires from the order of the Tribunal that the notice issued by the Bank was received by the petitioner himself on 28.02.2005 and receipt of the said notice is evident by countersignature made by the petitioner.
5. On the basis of these facts, the Tribunal has recorded that the petitioner acquired the knowledge of judgment and award dated 08.09.2000 passed in Lavad Suit No.648 of 1999 for the first time on 24.12.2009. In light of such glaring facts on the face of the record, which establish the fact that the petitioner has purposely suppressed those facts before the Tribunal, the Tribunal has rightly recorded the finding that the delay being enormous, cannot be condoned and has rightly rejected Civil Misc. Application No.19 of 2010.
6. As far as contention raised by learned counsel Mr.Dave regarding notice dated 03.11.2011, the said notice is issued under the provisions of SARFAESI Act, more particularly, under Section 13(4) read with Section 13(2) of the SARFAESI Act. As held by the Hon'ble Supreme Court in case of Kanaiyalal Lalchand Sachdev and others V/s. State of Maharashtra and others reported in (2011)2 SCC 782, the petitioner has an alternative efficacious remedy of challenging the said notice before the appropriate forum i.e. the Debt Recovery Tribunal. Hence, the petition cannot be entertained as far as challenge to the notice dated 03.11.2011 is concerned.
7. Resultantly, the petition being devoid of merits, the same deserves to be rejected and is summarily rejected. However, in the facts and circumstances of the case, no order as to costs.
(R.M.CHHAYA, J.) Hitesh Top