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SCA/7885/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7885 of 2011
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DAVIPRASHAD
DAVIDAS PANDIT - Petitioner(s)
Versus
SHRI
ISHWERIYA SEWA CO-OPERATIVE SOCIETY - Respondent(s)
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Appearance :
MR
DHARMESH V SHAH for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1,
MR
BAIJU JOSHI for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 30/08/2011
ORAL
ORDER
1. Rule.
Mr.Baiju Joshi, learned advocate waives service of rule on behalf of
respondent no.1. With the consent of learned advocates for the
respective parties, petition is taken up for final disposal.
2. Petitioner
had availed loan from respondent no.1. Thereafter, respondent had
preferred Lavad Case No.203 of 2004 against present petitioner to
recover an amount of Rs.31,24,000/-. In the said case, order of
attachment before the judgment has been passed by the Board of
Nominees on 28.06.2005. The petitioner preferred appeal before the
Gujarat State Cooperative Tribunal, Ahmedabad challenging the decree
passed by the Board of Nominees in Lave Case No.203 of 2004. As there
was delay in preferring appeal, the petitioner also filed delay
condonation application being M.C.A.No.557 of 2006 on various ground.
Gujarat State Cooperative Tribunal, Ahmedabad by impugned order
dated 03.02.2009 rejected the delay condonation applications. Hence,
present petition.
3. Learned
advocate for the petitioner submitted that learned Tribunal ought to
have considered the grounds urged in the application in its true
spirit. It is submitted that while deciding the application for
condonation of delay, sufficient cause has to be construed liberally.
Therefore, it is requested to quash the impugned order passed by the
Tribunal in delay condonation application.
4. Learned
advocate for the respondent submitted that order by the Tribunal is
legal and not required to be interfered with. It is submitted that
material facts have been suppressed by the petitioner, so he is not
entitled to get any relief. It is requested to dismiss the petition.
5. Heard
learned advocate for the respective parties. In opinion of this
Court, matter should be thrown out on technical ground of delay and
opportunity should be given to the petitioner to submit the case on
merits. Reference is made to the decision of this Court in the case
of Shree Ambica Coled Storage and Ors. v/s. Netpur Cooperative
Bank Ltd. and Ors. reported in 2010 (1) GLH (UJ)
10, wherein in para 5, while considering the aspect of
delay, this Court in para 5 has observed as under :-
“5. However,
the fact remains that there was delay in preferring the
appeal. Even if it was a strong case on merits in favour of the
appellants to the extent that the award could not stand in law then
also the Tribunal could have considered the matter for condonation of
the delay by imposing suitable cost by way of compensation to the
respondent bank. The Tribunal has not awarded any cost but has
directed the petitioners to deposit the 15% of the awarded amount,
which as per the statement made by the learned counsel for the
petitioner at bar comes to approximately Rs. 20 to 21 lacs.
Therefore, it appears to the Court that it would be just and proper
if the question is considered only on the aspect of cost to be
awarded to the respondent bank for the delay on the part of the
petitioners in preferring the appeal when there is a very strong case
on merits to be considered by the Tribunal. Considering the facts and
circumstances of the case, the appropriate cost would be Rs. 5,000/-
for each of the appeal. Hence, the impugned order passed by the
Tribunal deserves to be modified.”
6. In
view of above and considering the decision of Shree Ambica Coled
Storage (supra), impugned order dated 03.02.2009 passed by the
Tribunal in delay condation application is required to be quashed and
set aside.
7. For
the reasons stated above, petition is partly allowed. Order dated
03.02.2009 passed by the Gujarat State Cooperative Tribunal,
Ahmedabad in Misc. Civil Application No.557 of 2006 is quashed and
set aside and same is allowed and delay caused in preferring appeal
is condoned on condition that the petitioner shall pay an amount of
Rs.1000/- (One Thousand only) to the respondent no.1 within three
weeks from today. Rule is made absolute to the aforesaid extent.
8. Gujarat
State Cooperative Tribunal, Ahmedabad is directed to decide the
appeal in accordance with law. All the contentions of respective
parties are kept open.
[M.D.Shah,
J.]
satish
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