RULE.
Mr.Ravindra R. Shah, learned advocate appearing for respondent No.1-Bank, and Mr.Rakesh R. Patel, learned Assistant Government Pleader appearing for respondent No.2, waive service of rule for the respective parties. With consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
The petitioners have prayed for the following reliefs:
"(A) the Hon'ble Court may be pleased to quash and set aside the order dated 21.3.03 passed by the learned Board of Nominees Court allowing Summary Lavad Case No.3692/02 at Annexure E, and the order dated 30.9.05 rejecting the Farifile Application No.110/05 at Annexure H, as well as the order dated 23.11.11 passed by respondent No.2, Cooperative Tribunal rejecting Appeal No.403/06 at Annexure L;
(B) Pending hearing and final disposal of the present petition, the Hon'ble Court may be pleased to stay the operation, implementation and execution of the order dated 21.3.03 passed by the learned Board of Nominees Court allowing Summary Lavad Case No.3692/02 at Annexure E, and the order dated 30.9.05 rejecting the Farifile Application No.110/05 at Annexure H as well as the order dated 23.11.11 passed by respondent No.2, Cooperative Tribunal rejecting Appeal No.403/06 at Annexure L;
(C) Pending hearing and final disposal of the present petition, record and proceedings of Appeal No.403/06 as well as the board (listing the matters) maintained by respondent No.2 dated 23.11.11 may be called for in the interest of justice;
(D) Ex-parte ad interim relief in terms of para (B) & (C) hereinabove may please be granted.
(E) Such other and further relief/s as may be deemed just and proper in the facts of the case may be granted."
Heard Mr.Shirish Joshi with Mr.Baiju Joshi, learned advocates for the petitioners, Mr.Ravindra R. Shah, learned advocate for respondent No.1-Bank, and Mr.Prakash K. Jani, learned Government Pleader, with Mr.Rakesh R. Patel, learned Assistant Government Pleader for respondent No.2.
It appears from the prayers that it is an ordinary petition challenging the orders passed by the Board of Nominees as well as the Gujarat State Co-operative Tribunal (the Tribunal), which would have entailed hearing in due course. However, suffice it to say that the present petition arising out of the order passed by the Tribunal in Appeal No.403 of 2006 dated 23.11.2011 (at Annexure-L to the petition). Petitioner No.1 and its sister concern are also pursuing another Appeal No.402 of 2006 as well as Revision Application No.160 of 2009, which are pending for hearing before the Tribunal. Earlier the orders passed by the Tribunal in a similar fashion in Revision Application No.160 of 2009 came to be challenged before this Court by filing Special Civil Application No.18510 of 2011, which came to be allowed vide judgment and order 29.12.2011 and the order passed in the Revision Application, impugned in the said petition, was quashed and set aside and the matter was remanded for its re-hearing to the Tribunal. As pointed out by the learned counsel appearing for the respective parties, incidentally, the said proceedings are kept for hearing before the Tribunal today.
This Court vide order dated 29.12.2012 had passed the following order:
"NOTICE for final disposal returnable on 12.01.2012. Mr. Rakesh R. Patel, learned AGP waives service of notice for respondent No.2 as connected matter between the same parties is also listed today. At the request of the Court, Mr. Ravindra Shah, learned advocate appearing for respondent No.1 Bank accepts advance copy of the petition. Ad-interim relief in terms of Para 12(B) till then. Direct service is permitted."
At the request of the court, Mr.P.K.Jani, learned Government Pleader, appeared before the court and was also called for the proceedings of Appeal No.403 of 2006.
From the original record of the said proceedings it transpires that the said appeal was registered in the year 2006 and was pending for final adjudication before the Tribunal. It further transpires that on 23.11.2011 a pursis came to be filed by the learned advocate appearing for respondent No.1-Bank, which was recorded on the same day by the Tribunal and on the same day the order impugned in the present petition dated 23.11.2011 was passed on the basis of the said pursis. On bare perusal of the original document Exh.11 of the appeal, it transpires that the appeal was filed by the present petitioners, whereas the pursis was filed by respondent No.1 and that too without giving a copy thereof to the other side i.e. the present petitioners, who were the appellants before the Tribunal and on the same day the order impugned dated 23.11.2011 was passed, without hearing the learned advocate for the appellants.
Mr.Shah, learned advocate appearing for the respondent-Bank, has, however, submitted that the suit came to be filed being Lavad Suit No.3692 of 2002 against the petitioner and the same was decreed vide judgment and award dated 21.03.2003. It was further pointed out that in fact the said judgment and award was challenged by filing a substantive appeal before the Tribunal along with condonation of delay application being Misc. Application No.97 of 2003. The Tribunal vide order dated 13.01.2004 rejected the said application and as the delay was not condoned the appeal stood automatically dismissed. Against the said order the petitioners thereafter filed a Review (Fari File) Application No.110 of 2005 on 04.05.2005. It was further pointed out that on the basis of the accounts, a pursis dated 25.05.2005 came to be filed by the present petitioners for recording of settlement between the parties before the Board of Nominees in Review (Fari File) Application No.110 of 2005. The said pursis came to be objected to by respondent No.2 and, therefore, the Board of Nominees kept the matter for hearing on 23.06.2005 and ultimately the same culminated into rejection vide order dated 30.09.2005. Being aggrieved by the said order, the petitioners preferred Appeal No.403 of 2006. It was therefore, submitted that even though there is procedural lapse on the part of the Tribunal, as canvassed by the learned advocate for the petitioners as well as pointed out by the learned Government Pleader on the basis of the original record of the Tribunal, no fruitful purpose would be served by quashing and setting aside the order impugned in the present petition and remitting back the proceedings of Appeal No.403 of 2006 for re-hearing before the Tribunal.
Before reverting to the submissions made by Mr.Shah, learned advocate for respondent No.1-Bank, it would be appropriate to note that, as stated hereinabove, in all, there are three proceedings between the petitioners as well as the respondent-Bank - being Revision Application No.160 of 2009, Appeal No.402 of 2006 and Appeal No.403 of 2006. It transpires from the record and it was also pointed out by the learned Government Pleader, on the basis of the original record of the Tribunal, that in the proceedings of Revision Application No.160 of 2009 an application being Exh.23 in the said proceedings was filed on 16.03.2010, inter alia, for a prayer to hear all these three proceedings viz. Revision Application No.160 of 2009 as well as Appeal No.402 of 2006 and Appeal No.403 of 2006 together. The Tribunal, after hearing the parties i.e. the present petitioners as well as the respondent-Bank vide order dated 20.04.2010 (Exh.26 in Revision Application No.160 of 2009) passed an order whereby all the proceedings were directed to be heard and disposed of together. Learned Government Pleader has brought this order to the attention of this Court and the original record of the said proceedings are also shown to this Court. As aforesaid, in the earlier proceedings also, the Tribunal has acted in similar fashion and, therefore, while dealing with Special Civil Application No.18510 of 2011, vide judgment and order dated 29.12.2011 this Court in Paragraph Nos.5 and 7-10 observed thus:
"5. Mr.
Prakash K. Jani, learned Government Pleader has produced the original proceedings before this Court today. The proceedings are in two parts. One relates to Revision Application No. 160 of 2009 and the other relates to the appeals. It transpires from the record and as pointed out by the learned Government Pleader that by an application dated 16.3.2010 being Exh.23 in the said Revision Application, an application was filed by the present petitioner with a prayer before the Tribunal that all the three proceedings may be heard together. Upon service of copy of the said application Exh.23, the learned advocate for the Bank had made endorsement on the original application and has raised objections to the request made by the advocate for the petitioner. The Tribunal, as per the record, fixed the said application for hearing and by order dated 20.4.2010 (Exh.26), the Chairman as well as the Member allowed the said application Exh.23 and ordered that all the three proceedings i.e. Revision Application No. 160 of 2009, Appeal No. 402 of 2006 and Appeal No. 403 of 2006 be heard together. It also further transpires from the record that the stay was granted and thus, by order dated 20.4.2010, all the three proceedings were to be heard and disposed of together. It further transpires that on 26.9.2011 by an application Exh.38, the learned advocate for the petitioner through a proxy advocate Mr. Raval submitted written arguments in Revision Application No.160 of 2009 being Exh.39. The record of the Revision Application further shows that the matter was kept for orders on 7.10.2011. The Rojkam of the proceedings further indicates that on 23.11.2011, the written arguments submitted by the learned advocate for the petitioner is taken on record. Further on 8.12.2011, it is indicated that the impugned order Exh.40 came to be passed upon considering the written arguments Exh.39 submitted by the learned advocate for the petitioner and upon hearing the learned advocate for the Bank. On that very day, an application for staying said order was filed by the learned advocate for the petitioner at Exh.41. Similarly, on perusing the record of Appeal Nos.402 and 403 of 2006, the Rojkam indicates that the same were kept for hearing on 3.1.2012. The learned advocate who appeared before the Tribunal has also filed an affidavit before this Court in this petition and has stated these facts. Cumulatively, considering all these facts, it clearly transpires that the Tribunal discarded the earlier order passed by the Chairman and Member below Exh.23 and as such, without giving an opportunity of being heard to the learned advocate for the petitioner merely by considering the written submissions, passed the order at Exh.40. It cannot be gain said that all the three matters which were in a way consolidated by the earlier order was not known to the Tribunal while disposing of Revision Application No.160 of 2009 as the application below Exh.23 was filed and the order Exh.26 dated 20.4.2010 was passed in this very proceeding. This speaks in volumes. However, in order to see that the interest of all the parties is not jeopardized, this Court restrains itself from making any further comments in regards to the manner in which the Tribunal has disposed of the aforesaid Revision Application in total disregard to its own earlier order. It is not necessary for this Court to remind the Tribunal of its power enshrined under the provisions of Gujarat Cooperative Societies Act, 1961. The manner in which the Tribunal has dealt with Revision Application No.160 of 2009 is highly deprecated.
7. This Court could have dealt with the petition on its own merits. However, interest of justice would be served if the order impugned in this petition is quashed and set aside without going into the merits of the order impugned and is remanded back for its fresh hearing together with Appeal Nos.402 and 403 of 2006. It is further noticed that the Tribunal has also disposed of Appeal No.403 of 2006 without taking into consideration the order at Exh.26 dated 20.4.2010 which is subject matter of a separate petition being Special Civil Application No.18750 of 2011 wherein this Court has passed the following order today:-
"NOTICE for final disposal returnable on 12.01.2012. Mr. Rakesh R. Patel, learned AGP waives service of notice for respondent No.2 as connected matter between the same parties is also listed today. At the request of the Court, Mr. Ravindra Shah, learned advocate appearing for respondent No.1 Bank accepts advance copy of the petition. Ad-interim relief in terms of Para 12(B) till then. Direct service is permitted."
8. In the above circumstances, without going into the merits of the order impugned as such the order dated 8.12.2011 passed in Revision Application No.160 of 2009 deserves to be quashed and set aside. Mr. Ravindra Shah has no objection if the order impugned is quashed and set aside and is remanded back to the Tribunal for its fresh hearing on its own merits within the stipulated time limit in order to see that the interest of the Bank is not affected further.
9. Resultantly, the petition is allowed. The order dated 8.12.2011 passed in Revision Application No.160 of 2009 is quashed and set aside and the Revision Application No.160 of 2009 is remanded back for its fresh hearing on merits. Accordingly, Revision Application No.160 of 2009 stands restored to the file of the Tribunal and the Tribunal is directed to hear and dispose of the same along with Appeal No.402 of 2006 subject to further orders that may be passed in Special Civil Application No.18750 of 2011 which is pending before this Court as expeditiously as possible by giving utmost priority to the said matters as per the order passed below Exh.26 dated 20.4.2010 latest by 29.02.2012.
10. It is made clear that it would be open for both the parties to raise all contentions available on merits and this petition is allowed only on the limited ground that the Tribunal decided Revision Application No.160 of 2009 ex-parte in total disregard to its own earlier order, as aforesaid, without being influenced by the fact that the present petition is entertained and the earlier order dated 8.12.2011 is quashed and set aside."
Even considering the submissions made on behalf of the respondent-Bank, presuming for a moment, without expressing any opinion on merits, the Tribunal being a judicial authority is duty bound to follow the procedure and practice that is prevailing in the Tribunal since its inception. Even the basic principle of fair play and justice requires that in any proceedings if any application is filed, on the contrary it is the duty of the Tribunal/court to see that the other side or the other party to the said proceedings is given a copy and at least made aware about a pursis being filed. Considering the present case the appeal was filed by the present petitioners, whereas the pursis was given by the learned advocate of the respondent-Bank without endorsing any copy, which indicates that the said pursis was filed without the knowledge of the appellants themselves. This Court feels that the procedure adopted by the Tribunal is unknown to any court. Even the manner in which the impugned order is passed forthwith at threshold of the filing of the pursis calls for interference of this Court in its jurisdiction under Articles 226 and 227 of the Constitution of India. A party may have its own case on merits but the procedure, which is laid down under law, has to be followed by every court of law and on perusal of the original record it appears that, with respect, the Tribunal has not followed the same.
Learned Government Pleader has also drawn attention of this Court to Regulation 13 of the Gujarat State Co-operative Tribunal Regulations, 1964 (the Regulations), under Chapter-IV, which provides for hearing, adjournment and judgment. On bare reading of Regulations 13 and 14, it transpire that the same have inherent provisions of fair play and justice and, in opinion of this Court, the parties as well as the Tribunal are bound to follow the said regulations. It is also rightly pointed out by the learned Government Pleader that even Regulation 10 of the Regulations, inter alia, provides that when an appeal or applications has been registered under regulation 8 the Registrar shall, as soon as may be, send intimation thereof in Form G to the respondent or the opponent as the case may be.
As aforesaid, the said procedure is completely given go-by by the Tribunal and, therefore, the order impugned deserve to be quashed and set aside. Resultantly, the petition is partly allowed. Impugned order dated 23.11.2011 passed by respondent No.2 in Appeal No.403 of 2006 is hereby quashed and set aside and the proceedings of Appeal No.403 of 2006 are remanded back for its fresh hearing on merits. Accordingly Appeal No.403 of 2006 is restored to the file of the Tribunal and the Tribunal is directed to hear, decide and dispose of the same along with Appeal No.402 of 2006 and Revision Application No.160 of 2009 as per its own order passed in Revision Application No.160 of 2009 dated 20.04.2010 and as directed by this Court in Special Civil Application No.18510 of 2011.
It is however made clear that this Court has not examined the merits of the matter but the matter is allowed only on the procedural lapse on the part of the Tribunal, as indicated in this order, and it would be open for the parties i.e. the present petitioners as well as the respondent-Bank to raise all contentions available on merits, including maintainability and other questions of law that may be raised by both parties at the time of hearing of Appeal No.403 of 2006 for the Tribunal.
It is further made clear that this Court has not dealt with order passed by the Tribunal in Review (Fari File) Application No.110 of 2005 and only appeal is remanded for its re-hearing. It is also made clear that the parties to this petition i.e. the present petitioners and the respondent-Bank shall co-operate in the hearing before the Tribunal and shall not take any unnecessary adjournments and on the contrary shall co-operate with the Tribunal in hearing all three proceedings within the time stipulated as directed by this Court and the learned advocates appearing for the present petitioners and the respondent-Bank assure this Court that unnecessary adjournments shall not be sought for, except under unavoidable circumstances. RULE made absolute to the aforesaid extent. Parties to bear their own cost.
The court appreciates the valuable assistance rendered by Mr.Prakash K. Jani, learned Government Pleader, for the cause of justice at the call of the court.
Sd/-
[ R.M.CHHAYA, J] *** Bhavesh* Top