1. Heard Mr. Nanavati, learned Senior Counsel with Mr. Gandhi, learned counsel appearing for the applicants-original petitioners.
2. The grievance made by the learned Senior Counsel for the applicants is to the effect that in the judgment and order dated 06.05.2010 passed in S.C.A.No.5400 of 2001 the Court has upheld the contention of the petitioners and set aside the order of the first authority, however, Appellate Authority's order has not been expressly set aside and therefore present application is preferred with a request for appropriate correction/modification in the judgment and order dated 06.05.2010 in S.C.A.No.5400 of 2001.
3. Mr.
Nanavati, learned Senior Counsel appearing for the applicants submitted that in the said judgment the principal contention of the applicants is accepted by the learned Single Judge and the first authority's order is set aside, thus, the absence of express order setting aside the Appellate Authority's order is an inadvertence or technical defect and that therefore appropriate correction/modification in the said order dated 06.05.2010 in S.C.A.No.5400 of 2001 may be made.
4. It has, however, appeared from the record and also from the submission by learned Senior Counsel appearing for the applicants that the said decision dated 06.05.2010 in S.C.A.No.5400 of 2001 is challenged by way of Letters Patent Appeal and the appeal is pending before the Hon'ble Division Bench. Learned A.G.P. has also submitted that the appeal has been admitted and by way of interim relief the operation and implementation of the judgment and order dated 06.05.2010 in S.C.A.No.5400 of 2001 is stayed. The order passed by the Hon'ble Division Bench in Letters Patent Appeal No.1177 of 2011 reads thus:
"We have heard learned AGP Ms. Jirga Jhaveri for the appellants, learned Senior Counsel Mr. K.S. Nanavati, assisted by learned Advocate Mr. Gandhi for respondents No. 1 and 2 and learned Advocate Mr. Premal Joshi for respondents No. 3 and 4.
ADMIT.
Office is directed to list the Appeal on 12th March, 2012. Affidavit-in-reply or rejoinder, if any, to be filed before that date."
4.1. The order passed by the Hon'ble Division Bench in C.A.No.8457 of 2011 reads thus:
"We have heard learned AGP Ms. Jirga Jhaveri for the applicants - appellants, learned Senior Counsel Mr. K.S. Nanavati, assisted by learned Advocate Mr. Gandhi for Opponents No. 1 and 2 and learned Advocate Mr. Premal Joshi for Opponents No. 3 and 4.
Learned AGP for the applicants/appellants has urged that in the impugned order dated 6th May, 2010 passed in Special Civil Application No. 5400 of 2001, the learned Single Judge has quashed only the Recovery Proceedings but not quashed the appellate order. Therefore, in view of the principle of merger, the recovery order has merged with the appellate order and, if, the appellate order is not quashed, the order could not be given effects.
We are, prima facie of the opinion that in absence of quashing the appellate order, the notice/demand could not be quashed by the learned Single Judge. Hence, RULE. Learned Senior Counsel Mr. K.S. Nanavati, assisted by learned Advocate Mr. Gandhi waives service of notice of Rule on behalf of Opponents No. 1 and 2 and learned Advocate Mr. Premal Joshi waives service of notice of Rule on behalf of Opponents No. 3 and 4.
4 In the facts and circumstances of the case, the present Application is allowed. The operation, implementation and execution of the Order dated 6.5.2010 passed by the learned Single Judge in Special Civil Application No. 5400 of 2001 shall remain stayed.
Rule is made absolute"
5. In view of the fact that the entire subject matter is under consideration before the Hon'ble Division Bench and the judgment and order dated 6th May 2010 in S.C.A.No.5400 of 2001 itself is stayed, it would not be in propriety for this Court to consider the request made in present application.
6. The request which is made in present application can be made by the applicants before the Hon'ble Division Bench at the time of hearing of the appeal.
7. The learned Senior Counsel for the applicants has submitted that at least at that stage the request which is made by the applicants may be considered so that the order in S.C.A.No.5400 of 2001, which is technically incomplete, may be properly modified and appropriately corrected and necessary directions as may be considered appropriate by the Court may be passed.
8. Therefore, office to take necessary steps to place the present application before the Hon'ble Division Bench along with L.P.A.No.1177 of 2011 after taking appropriate orders from the Hon'ble Division Bench.
(K.M.THAKER, J.) jani Top