The petitioner has brought under challenge order dated 18.4.2012 passed below exh.15 by the Gujarat State Cooperative Tribunal, Ahmedabad in Revision Application No.134 of 2011 whereby the learned tribunal has allowed the revision application preferred by present respondent No.1 against the order dated 8.8.2011 passed below Exh.5 by Board of Nominee in Arbitration Case No.43 of 2011. The Board of Nominee had, vide its order dated 8.8.2011 passed below Exh.5 restrained the respondent No.1 from selling, transferring or alienating in any manner the suit property in question and also from creating any charge or interest of any nature whatsoever. Aggrieved by the said order dated 8.8.2011, present respondent No.1 preferred the revision application wherein the learned tribunal passed the impugned order dated 18.4.2012. 2. The factual matrix involved in and leading to present petition is as follows:-
2.1 The petitioner has preferred present petition through her constituted attorney. The petitioner claims that she is the only surviving legal representative of one Shri R.S.Modi who executed a deed / document dated 18.4.1941 in favour of present respondent No.1 Bank.
2.2 The petitioner has claimed that since she learnt about the action of the respondent No.1 proposing to sell, through auction, certain parcels of the land which are part of the suit property, she was constrained to initiate proceedings by filing arbitration suit under Section 96 read with Section 97 and Section 99 of the Gujarat Cooperative Societies Act, 1961 [hereinafter referred to as “the Act”].
2.3 The petitioner has also claimed that the document in question i.e. the deed dated 18.4.1941 is actually a deed of conditional sale and usufructuary mortgage which allows right of redemption of mortgage. The petitioner has also claimed that she offered to make entire payment alongwith interest/compound interest on account of which the said deed of mortgage was executed and she had requested the respondent No.1 Bank to accept the said amount and redeem the mortgage, however, the respondent No.1 Bank declined her requests and informed her that Bank would proceed with the proposed action of auction of certain parcels of the suit property and that therefore, she was constrained to take out proceedings before the Board of Nominees by filing suit which came to be registered as Arbitration Suit No.43 of 2011.
2.4 It appears from the record that the suit came to be filed in February-2011 and after hearing the case of plaintiff i.e. present petitioner, the Board of Nominee was pleased to grant an ex-parte order in nature of stay / injunction vide order dated 10.2.2011. Notice was issued to the respondent Bank who, upon service of notice, appeared before the Board of Nominees and filed its reply contesting the suit. The plaintiff – petitioner had also preferred an application seeking interim relief. The respondent Bank opposed the application for interim relief on diverse grounds including the objection against maintainability of the suit on the ground of delay as well as plaintiff’s locus.
2.5 The Board of Nominee heard the contesting parties and passed order dated 8.8.2011 whereby the earlier order came to be confirmed. The Board of Nominee directed the respondent Bank to not to transfer, assign, alienate or sale, in any manner, the suit property and do not to create any charge or interest of whatsoever nature.
2.6 The respondent Bank being aggrieved by the said order, preferred revision application before the learned tribunal which came to be registered as Revision Application No.134 of 2011.
2.7 After hearing the contesting parties, the learned tribunal came to the conclusion that the balance of convenience was in favour of the respondent Bank and the respondent Bank had also established prima-facie case in its favour. The learned tribunal came to the conclusion that the facts and circumstances of the case on hand did not justify the order passed by the Board of Nominee and that the said order dated 8.8.2011 was not sustainable. The learned tribunal, therefore, vide order dated 18.4.2012 accepted and allowed the revision application and quashed the order dated 8.8.2011 passed below Exh.5 by the Board of Nominee in Suit No.43 of 2011.
2.8 The plaintiff – petitioner is aggrieved by the said order dated 18.4.2012, hence, present petition.
3. Heard Mr. Nanavati, learned Senior Counsel, with Mr. A.S.Shah, learned advocate for the petitioner and Mr. A.J.Patel, learned counsel for the respondent No.1 Bank. In view of the nature of the petition and at the request of the learned advocates for the petitioner as well as the respondent No.1 Bank, the petition is taken up for hearing and final decision at this stage. The learned counsel appearing for the respondents have waived service of process.
4. Mr. Nanavati, learned Senior Counsel, appearing for the petitioner, submitted that the document in question is, according to the petitioner – plaintiff, a deed of conditional sale and usufructuary mortgage. He also submitted that the said deed confers right on the petitioner to redeem the mortgage and repurchase the suit property. Learned counsel for the petitioner submitted that the respondent No.1 Bank has claimed that the deed in question i.e. the deed dated 18.4.1941 is a sale-deed by virtue of which the suit property was sold to the respondent Bank. He, in light of the contention raised by the respondent No.1 Bank with reference to the deed in question, submitted that the proceedings i.e. arbitration suit No.43 of 2011 involves, inter alia, question about the interpretation and construction of the document i.e. the nature, effect and character of the said deed. He also submitted that the said issue would require the parties to lead evidence and only after considering the antecedents which lead to execution of the documents and after considering the subsequent events in light of the terms incorporated in the document, that the Board of Nominee will be able to determine the nature and type of the document. Under the circumstances, it is in interest of justice and also in interest of the concerned parties that status-quo with reference to the suit property may be maintained by the all parties concerned in the proceedings and those concerned with or interested in the suit property. Mr. Nanavati, learned Senior Counsel submitted that in such facts and circumstances, the order passed by the Board of Nominee was justified and ought not have been set aside by the learned tribunal. Mr. Nanavati, learned Senior Counsel, raised contentions, with reference to the deed in question and also with reference to the petitioner’s right in the property and he relied on the provisions contained under Sections 96, 97 and 99 of the Act and he also relied on the provisions contained under Transfer of Properties Act namely, Sections, 58, 60 and 62. He also submitted that the petitioner has shown willingness to pay the entire amount, with interest, even compound interest, on account of which the document in question had to be executed. Mr. Nanavati also submitted that even the objections raised by the respondent No.1 Bank against the maintainability of the suit on the ground of limitation would require the parties to lead evidence and that therefore also, the order requiring the parties to maintain status- quo is justified. He submitted that the petitioner is ready to abide by strict schedule for completion of the proceedings. Mr. Nanavati submitted that the learned tribunal has erred in holding that balance of convenience is not in favour of the petitioner and/or that the petitioner has failed to show strong prima-facie case in her favour.
5. Mr. Patel, learned counsel appearing for the respondent No.1 Bank, has resisted the petition and supported the order dated 18.4.2011 passed by the learned tribunal. He submitted that the suit filed at the instance of present petitioner is hopelessly and inordinately barred by limitation inasmuch as it has been filed almost 70 years after the date on which the deed was executed. He submitted that even if 5 years' period [during which the petitioner had option to repurchase the property] is allowed and further period of 30 years in view of provisions contained under Article 61(a) or 61(b) is also allowed, then also, the suit would remain barred by limitation since it has been filed after about 70 years. Mr. Patel also submitted that in view of the provisions contained under Sections 3 r.w. 27 and Article 61 of the Limitation Act, the Board of Nominee is obliged to dismiss the suit as barred by limitation. He also submitted that in view of provision contained under Section 27 of the Limitation Act, not only the remedy is barred, but even the right is extinguished. Mr. Patel relied on the details mentioned in paragraph No.6 [page-26 of the petition] of the impugned order passed by the learned tribunal and submitted that in past i.e. in 1963, 1947, 1943, etc. several parcels of lands [e.g. S.No.591-paiki, S.No.256 to 263, S.No. 858, S.No. 875 to 879, S.No.853-B, S.No.854 to 857 and S.No.859 to 861, S.No.49-B(1) paiki and S.No.50-A part– 1-B] out of the suit property have been sold by the respondent No.1 Bank in exercise of the authority available to it in light of the terms of the deed dated 18.4.1941 and at any point of time the petitioner had never raised any objection against the said instances of sale and now after about 70 years, the petitioner has for the first time taken out proceedings only because now, suddenly the price of the suit property has increased. Besides other objections and contentions, learned counsel for the respondent Bank vehemently submitted that the auction process is concluded and the auction sale has been finalized in favour of the highest bidder who has already paid the entire amount of sale consideration and that therefore also, the relief prayed for by the petitioner is unjustified and unsustainable. Mr. Patel submitted that the public notice for auction sale was published on 20.2.2010 and the bids were submitted on 19.3.2010. The plaintiff filed objection on 6.3.2010 and thereafter, auction process was conducted. The respondent Bank accepted the highest bid and accordingly auction process was closed/concluded. The petitioner – plaintiff thereafter filed the suit in February-2011. The auction purchaser had paid the entire consideration and accordingly equities have been created. Therefore, the order restraining Bank from transferring the title and ownership of the suit property is, at this stage, unjustified. In such circumstances, balance of convenience cannot be said to be in favour of the plaintiff – petitioner.
6. The learned counsel for the contesting parties relied on the below mentioned decisions:-
(1) Harbans v. Om Prakash and ors. ((2006) 1 SCC 129)
(2) Bhoju Mandal and ors. v. Debnath Bhagat and ors. (AIR 1963 SC 1906)
(3) Mumbai International Airport Private Ltd. v. Regency Convention Centre and Hotels Private Ltd. and ors ((2010) 7 SCC 417)
(4) Jasbir Singh Chhabra and ors. v. State of Panjab and ors ((2010) 4 SCC 192)
(5) Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass (AIR 2005 SC 104)
7. I have heard the learned counsel for the parties and considered the material on record.
8. Present petition is taken out against interim order passed at interlocutory stage of proceedings related to Arbitration Suit No.43 of 2011. It is an undisputed fact that several parcels of land out of the suit property have been sold by the respondent Bank in 1943, 1946 and 1963 and never before the present sale, the petitioner – plaintiff raised any objection and/or sought to exercise the so-called right of redemption or right of repurchase the suit property.
8.1 It is also not in dispute that the deed in question was executed in April-1941 whereas the suit came to be filed in February-2011. The document in question allowed 5 year’s time during which the right to repurchase the property could have been exercised. The respondent Bank contends that during the said period such right was never exercised and now such right is not available i.e. it cannot be exercised after completion of 5 year’s period. The parties are at dispute about the nature and type of the document.
8.2 The said aspects and other related aspects will have to be examined by the Board of Nominee, on the basis of material available on record, including the evidence which may be led during the proceedings of the suit.
8.3 In this view of the matter, the request for interim relief prayed for by the plaintiff – petitioner had to be considered in light of the principles for granting or refusing order in nature of injunction/stay.
8.4 Of course, during the hearing of present petition, the contesting parties have made submissions on the merits of the claim as well as the defence including the purport, nature and type of the document in question, the right of mortgagee and mortgagor, however, at this stage, the Court is required to consider the propriety of order dated 18.4.2012 passed by the learned tribunal. However, this is not the stage when the merits of the case can be examined. The impugned order is an interim order passed at interlocutory stage whereby the request for interim relief has been decided. Thus, the order has to be examined only in light of the well recognised, established and cardinal principles governing the discretion to grant or refuse interim relief. viz. strong prima facie case, balance of convenience and irreversible injury.
8.5 The impugned order is related to and concerning an interim order passed by board of nominees at interlocutory stage. After examining the order of Board of Nominees the learned tribunal has come to the conclusion that balance of convenience cannot be said to be in favour of the plaintiff – petitioner and/or that the plaintiff – petitioner failed to establish a strong prima facie case in her favour.
8.6 So far as the said two aspects are concerned, it is necessary to recall that the disputed document was executed in April-1941 and the petitioner came forward with her claim and request after lapse of long time. Furthermore, in the interregnum when sale of some of the parcels of the land out of the suit property took place, the petitioner or the person who originally executed the deed had never raised any objection. Moreover, the auction process was conducted in March-2010 and the successful bidder has, as claimed by the respondent Bank, paid the entire amount of sale consideration and it is only because of the proceedings and the initial order passed by the Board of Nominee that the Bank has not issued sale certificate.
8.7 At this stage, it is necessary to mention that the successful bidder did not prefer, before the Board of Nominee and/or before the learned tribunal, any application for joining the proceedings of Arbitration Suit No.43 of 2011 and/or Revision Application No.134 of 2011 but it preferred application to get itself impleaded in this petition and in Special Civil Application No.6145 of 2012 which, for the reasons recorded in the order (passed in said application), has been rejected. The fact remains that the auction purchaser has paid the sale consideration. Since the issue related to limitation is to be decided by the Board of Nominee, it would not be proper for the Court to make any observations on that count at this stage. However, even if the petitioner’s submission that the suit is not or cannot be said to be barred by limitation are, for the sake of examining the issues of balance of convenience and prima-facie case, taken into consideration, the fact would remain that the suit has been filed after lapse of more than 60 years and that at the time of earlier instances of sale, any objection was not raised by the petitioner or her predecessor and that at any earlier point of time, the petitioner did not approach the respondent Bank with her proposal.
8.8 Having regard to the said factual aspects, it is not possible to hold that the learned tribunal has committed any error setting aside the order of Board of Nominee and in holding that balance of convenience cannot be said to be in favour of the plaintiff – petitioner.
8.9 In view of the facts obtaining on record, it has to be held, at least at this stage, and for the purpose of deciding plaintiff’s application for interim relief, that the balance of convenience is in favour of the respondent Bank.
8.10 Conjoint effect of the aforesaid aspects would also demonstrate that the plaintiff – petitioner is not in position to claim that she has made out or established a strong prima facie case in her favour.
8.11 Besides this, so far as the principle of “irreversible injury which can not be compensated in terms of money” is concerned, in view of the facts of present case, particularly the fact that the defendant is a Cooperative Bank, it cannot be said that the petitioner will suffer irreversible injury which cannot be compensated in terms of money.
8.12 Differently put, all the ingredients whose presence is, ordinarily, considered necessary while determining the request for interim relief are absent (so far as the petitioner is concerned) in present case or are against the petitioner.
8.13 Therefore, it cannot be said that the learned tribunal has committed any error, of jurisdiction or of law, in setting aside the order dated 8.8.2011 passed by the Board of Nominee.
9. The petitioner has failed to make out a case that the conclusions reached by the learned tribunal are incorrect or arbitrary or perverse or are not based on relevant facts and evidence. The petitioner has also failed to show any material from record which would convince this Court to take a view different from the view taken by the learned tribunal and to set aside the decision by the tribunal.
9.1 This Court would be extremely slow and careful or cautious in interfering with orders passed at interlocutory stage in exercise of discretion conferred by law and unless it is demonstrated that the jurisdiction is exercised arbitrarily or with material irregularity resulting into miscarriage of justice or it is exercised by ignoring the well recognized, established and cardinal principles for granting or refusing interim relief, Court would not interfere with such decision.
10. It emerges from the record that the order passed by the Board of Nominee was passed with material irregularity and without having due regard to the established principles applicable to the matters of interim relief and when the learned tribunal interfered with and set aside the said order of Board of Nominees then the impugned order by the learned Tribunal, cannot be said to be incorrect or arbitrary. The exercise of jurisdiction by the tribunal cannot be said to be arbitrary and it cannot be said that jurisdiction is exercised with material irregularity. Any case for interference is not made out.
11. It is however clarified that having regard to the nature and scope of the Arbitration Suit No.43 of 2011, it appears appropriate, just and necessary to direct that:-
(a) The Board of Nominees shall endavour to hear and decide the suit as expeditiously as possible and preferably within three months.
(b) The amount of sale consideration received/to be received from third party/auction purchaser shall be separately invested in a Fixed Deposit and the said Fixed Deposit shall be retained by the Respondent Bank without any lien i.e. as “No Lien” and it shall be governed by the final directions by the Board of Nominees.
12. The petition therefore fails and deserves to be rejected and is accordingly hereby rejected.
(K.M.Thaker, J.) FURTHER ORDER At this stage, learned counsel for the petitioner has requested to stay the operation of present order.
In the facts and circumstances of the case and in view of the reasons for which this order is passed, the request is not accepted.
(K.M.Thaker, J.) kdc