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SCA/6708/1989 2/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6708 of 1989
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
CO-OPERATIVE
BANK OF AHMEDABAD - Petitioner(s)
Versus
PARASRAM
S MOHITE & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MB GANDHI for
Petitioner(s) : 1,
RULE NOT RECD BACK for Respondent(s) : 1,
MR
AK CLERK for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 21/01/2010
ORAL
JUDGMENT
As
per the order passed by this Court today in Civil Applications
No.11385 of 2009 and No.9956 of 2009, the amendment shall be carried
out by the applicant original petitioner latest by tomorrow.
As
the applications are allowed and the original respondent No.2 has
expired and his legal heir is brought on record being respondent
No.2/1, Mr.Aniket Asitkumar Shukla, notice of rule is waived by the
Advocate, Mr.Pushpadatta Vyas for respondent No.2/1.
The
learned Counsel appearing for the petitioner and for respondent
No.2/1 are also heard on merits. The matter being an old one, the
learned Counsel appearing for the parties are also heard for final
hearing.
The
short facts of the case appear to be that Lavad Case No.3288 of 1985
was preferred by the petitioner Bank against respondent No.1 as the
principal borrower and against the original respondent No.2 as the
guarantor. The learned Nominee, in the said suit, had passed the
order dated 12.1.1988, whereby the suit was decreed in favour of the
plaintiff the petitioner Bank for Rs.4,186.95 with the interest
at the rate of 19% per annum on Rs.2,000/- from 7.1.1985 till
realization and the cost of Rs.1,000/-, but the said decree was
passed against the person and properties of the original defendant
No.1 – respondent No.1 herein and the suit was dismissed against the
original defendant No.2. Against the said decision, the petitioner
Bank carried the matter in appeal before the Tribunal being
No.55/1988 and the said appeal as per the impugned order dated
25.1.1989 is dismissed by the Tribunal, but the Tribunal slightly
modified the operative portion of the award passed by the Nominee by
granting benefits of the chargeability of the interest at the
interval of six months, instead of three months. However, so far as
the defendant No.2 is concerned, suit dismissed by the learned
Nominee was confirmed. It is under these circumstances, the
petitioner has approached this Court by the present petition.
The
perusal of the order passed by the Tribunal shows that so far as the
liability of original defendant No.1 respondent No.1 herein is
concerned, the award of the Tribunal is not materially adverse to
the petitioner inasmuch as the interest is made chargeable at the
interval of six months, instead of three months and, in any case,
the decree passed against the said defendant is not disturbed, nor
is under challenge in present proceedings. However, so far as
defendant No.2 is concerned, the Tribunal found that the bank, by
unilateral action, has altered the conditions with the principal
borrower and no consent is obtained of the guarantor, who is
defendant No.2, therefore, he would stand discharged from the
liability as the guarantor. Such finding of the Tribunal cannot be
said as by committing any error apparent on the face of record as
sought to be canvassed by the learned Counsel for the petitioner.
Further, there are concurrent findings of facts for alteration of
the contract by the bank with the principal borrower, without
consent of the guarantor, which also cannot be upset in a petition
under Article 227 of the Constitution of India. It cannot be said
that the Tribunal has exercised the discretion in a perverse manner,
which may call for interference by this Court under Article 227 of
the Constitution of India.
In
view of the aforesaid, the petition is meritless. Hence, dismissed.
Rule discharged.
21.1.2010
(Jayant Patel, J.)
vinod
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