Full Judgment Text
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CASE NO.:
Appeal (civil) 1892 of 2008
PETITIONER:
Uttar Gujarat S.R.V. Sangh Ltd
RESPONDENT:
M/s. Mehsana Dist. Cent. Co-op. Bank Ltd & Ors
DATE OF JUDGMENT: 11/03/2008
BENCH:
Dr. ARIJIT PASAYAT & C.K. THAKKER & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CIVIL APPEAL No. 1892 OF 2008
(Arising out of SLP (C) 1374 OF 2006)
Dr. ARIJIT PASAYAT, J
1. Leave granted.
2. Challenge in this appeal is to the order passed by learned
Single Judge of the Gujarat High Court in Special Civil
Application No. 5660 of 1998 and Misc. Civil Application No.
231of 2005.
3. Background facts as projected by appellant in a nutshell
are as follows:
Certain bales of cotton belonging to Respondent No. 3
were pledged with the respondent no. 1. However, the
respondent no. 3 had handed over the said goods to the
respondent no. 2 for ginning. The respondent no. 2 had ginned
the cotton but they were not having any facility of pressing.
Therefore, the said goods were given to Ashoknagar
Cooperative Society. Ashoknagar Cooperative Society had
pressed and made bales and the same were supplied to the
present appellant to be sold in the market. The said goods
were accordingly sold by the appellant after approval was
granted by the respondent no. 1 on the condition that the sale
proceeds of the goods would be paid to the respondent no. 1.
Accordingly the appellant handed a part of the sale proceeds
to the respondent no. 1. For the remaining amount, the
appellant was, about to hand over the said money.
In the meantime, Civil Suit No. 1808/1990 was filed by
the respondent no. 3, before the Court of Board of Nominees at
Mehsana against the respondent no. 2, and the present
appellant claiming a sum of Rs. 77,786/- being the sale
proceeds of the goods sold. In the said suit, Respondent No. 3
obtained an order of injunction against the appellant thus
preventing the appellant from handing over the said amount to
Respondent No. 1. Similarly, Civil Suit No. 1809 of 1990 was
filed by the respondent No. 1, against the appellant and the
respondent No.3 herein before the Court of Board of Nominees
at Mehsana. Both the suits were tried together.
Thus the appellant though having money and prepared to
pay the said money to respondent no.1 was prevented from
paying the same by the injunction order obtained by
respondent no.3 against the present appellant. According to
appellant it has no privity of contract with the respondent
no.3. The goods were handed over by Ashok Nagar Cooperative
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Society to the appellant. Therefore, the appellant has nothing
to do with either the respondent no.3 or with the respondent
no.2. Therefore, in both the suits, the appellant did not remain
present.
The said suits were decreed by common order dated
18.7.1994 and it was ordered that the amount of Rs.77, 786/-
lying with the appellant be paid to the respondent no.3 with
interest at the rate of 18% per annum. The appellant was thus
saddled with large amount of interest though it was holding
money as per court’s direction only and for no reason of its
own or for any dispute with any of the Respondents.
The aforesaid order of the Court of Board of Nominees
was challenged before the Cooperative Tribunal by way of
Appeal Nos. 243/94 and 216/94. The said appeals were
dismissed by the Cooperative Tribunal by its order dated
31.5.1998 and order of the Court of Board of Nominees was
confirmed. Against the said order of the Cooperative Tribunal,
Respondent no.1 and Respondent no.2 moved Writ Petitions
before the High Court of Gujarat. In the said Writ Petition,
even though the appellant was impleaded as a party
respondent, it was not served with notice and therefore the
appellant could not remain present at the time of hearing of
the Writ Petitions. Both the Writ Petitions were heard and
dismissed by a Single Judge of the High Court of Gujarat by
order dated 2.12.2004.
Thereafter the appellant filed a review application in the
High Court of Gujrat bearing No. Misc. Civil Application
(Stamp No. 231/2005) interalia on the ground that no notice
was served and hence no opportunity of hearing was given to
it. The said review application was dismissed by the present
impugned order dated 13.5.2005 on the ground that no
’adverse order’ was passed against the appellant.
After the review petition was dismissed Respondent No. 3
filed execution proceedings in the Small Causes Court,
Ahmedabad, being Darkhast No. 378 of 2005 and obtained ex
parte garnishee orders against the appellant. The appellant’s
account in Respondent No. 1 Bank was seized.
4. Learned counsel for the appellant submitted that the
High Court proceeded on erroneous premises. In the special
Civil application appellant was impleaded as respondent No. 2,
but no notice was issued to it.
5. In para 4 of the Order it was observed as follows:
"I have heard learned counsel for the
parties and perused the relevant documents
on record. The Board of Nominees Court, after
hearing the advocates for the parties, passed a
decree by which an amount of Rs.77,786/-
was ordered to be recovered from defendant
No. 2 and the order below Exh. 6 was
confirmed. The Tribunal has rightly upheld
the order passed by the Board of Nominees
Court. Mehsana, as is clear from the
reasonings given by it in para 12 of its order, I
find no infirmity in the orders passed by the
Board of Nominees Court and the Tribunal,
since the same are just and proper and do not
require any interference from this Court in this
petition. Hence, the petitions are required to
be dismissed."
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6. The Board of Nominees of Cooperative Societies at
Ahmedabad, in Case No. LVD/2629/82.93292 dated
15.10.1982, directed as follows:
"From Amongst that amount the
defendant No. 1 is hereby restrained from
recovering any amount from the balance
amount of Rs.77,786.82 which remains
after deducting the amount of
Rs.60,604.76 from the total price which
is to be recovered by the defendant No. 1
from the plaintiff and the defendant No. 2
is also restrained from giving or making
give the said amount to the defendant No.
1 and such order of interim injunction is
being passed against the defendant Nos.
1 and 2."
7. In the Revision Petition the High Court noted as if the
appellant was to receive some money from Respondent No. 1.
The case of the respondents was to the contrary.
8. There is no appearance on behalf of the respondents Nos.
1 and 2 in spite of notice.
9. It needs to be noted that pursuant to the order of
restraint passed by the Board of Nominees, Ahmedabad
Division as quoted above, the defendant No. 2 i.e. present
appellant was restrained from giving or making payment to
defendant No.1. Though appellant was a party i.e. respondent
No. 2 in the Special Civil Application, the matter was disposed
of without hearing the appellant. In the Review Application
the learned Single Judge of the High Court proceeded on
entirely erroneous premises. The ultimate result is that the
appellant, without getting an opportunity of being heard
and/or presenting its case has been saddled with the liability.
10. We, therefore, set aside the impugned order and remit
the matter to the High Court for fresh disposal in accordance
with law.
11. The appeal is allowed with no order as to costs.