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SCA/1742/2005 12/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1742 of 2005
With
SPECIAL
CIVIL APPLICATION No. 1727 of 2005
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
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 ?
=====================================================
ANKLESHWAR
NAGRIK SAHAKARI BANK LTD. THRO.MANAGER - Petitioner(s)
Versus
HASMUKHLAL
MOHANLAL AMDAVADI & 2 - Respondent(s)
=====================================================
Appearance :
MR
CHIRAG B PATEL for Petitioner(s) : 1,
MR ASHUTOSH R BHATT for
Respondent(s) : 1 - 2.
RULE SERVED BY DS for Respondent(s) :
1.2.1, 1.2.2,
3,
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 09/04/2010
COMMON
ORAL JUDGMENT
1. As
both petitions involve common questions of fact and law and the same
order is impugned in them, they are being heard together and decided
by a common judgment.
2. The
challenge in these petitions is to common order dated 19-1-2004
passed by the Gujarat State Co-operative Tribunal,Ahmedabad ( The
Tribunal for short) in Appeal Nos.925 of 2001 and 926 of 2001,
arising out of Lavad Suit Nos.744 of 1993 and 745 of 1993.
3. The
petitioner is the Ankleshwar Nagrik Sahakari Bank Ltd. The brief
factual background in which the petitions have been filed is that the
petitioner-Bank advanced a loan to Pradipkumar Sanmukhlal Parikh
(respondent No.3 in Special Civil Application No.1742 of 2005) for
purchasing a rickshaw. Respondent No.1 Bhuriben Mohanlal Amdavadi and
respondent No.2 stood as sureties/guarantors towards the said loan
with the condition to repay the loan amount by instalments with
interest on the principal amount. The said loan was sanctioned on
1-12-1989. It is the case of the petitioner that respondent No.3 paid
some of the instalments towards the loan but all of a sudden the
payments were stopped. The outstanding amount of the loan was
Rs.17,580/-. As the said amount was not forthcoming, the
petitioner-Bank filed Lavad Suit No.745 of 1993 against the original
debtor as well as the sureties/guarantors, before the Board of
Nominees, Vadodara.
4. Similarly,
respondent No.2 of Special Civil Application No.1727 of 2005,
Maheshkumar Motilal Khristi obtained a loan of Rs.19,700/- for
purchasing a rickshaw from the petitioner-Bank, on or about,
24-12-1988. Bhuriben, who is also respondent No.1 in the said
petition and respondent No.3 stood as sureties/guarantors. The loan
amount along with interest was not paid to the petitioner Bank,
leading to filing of Lavad Suit No.744 of 1993,before the Board of
Nominees,Vadodara.
5. Both
Lavad Suit Nos.744 of 1993 and 745 of 1993 were decided by a common
judgment by the Board of Nominees. The Suits were decreed in favour
of the petitioner-Bank by judgment and award dated 10-10-2001.
Aggrieved thereby, Bhuriben,respondent No.1, filed appeals in both
the Lavad Suits before the Tribunal, which have been allowed by
passing the impugned order, whereby the order passed by the Board of
Nominees in Lavad Suits has been set aside qua respondent No.1, by
the Tribunal. Aggrieved by the said decision of the Tribunal, the
petitioner has approached this Court by way of the present petitions.
6. At
the very outset Mr.Chirag B.Patel,learned counsel for the petitioner
has submitted that he is confining his submissions to only one
ground, that the procedure as prescribed in Rule 85 of the Gujarat
Co-operative Societies Rules,1965 ( The Rules for short) has not
been followed, while passing the impugned order.
7. Mr.Chirag
B.Patel, learned counsel for the petitioner-Bank has submitted that
the petitioner has a grievance only against respondent No.1
Bhuriben,who has appended her right thumb impression on the surety
bond, which is now disputed by her in the Lavad Suits and the
Appeal. It is further submitted that the impugned order of the
Tribunal has been passed in violation of the provisions of Rule 85 of
the Rules as under the said Rule, the Tribunal cannot look into the
additional evidence unless an application for the same is submitted
and allowed. In the present case, respondent No.1 has produced the
opinion of the Hand Writing Expert which has been relied upon in a
criminal case filed by her at the stage of filing the appeal before
the Tribunal, and the said document had been submitted along with the
Memorandum of appeal, and not by filing a separate application. The
learned counsel for the petitioner has submitted that Rule 85
stipulates that either party is entitled to produce rebutting
evidence and to address the Appellate Authority on all points arising
out of the fresh evidence or deposition of witnesses, if any, and as
the Tribunal has permitted respondent No.1 to produce additional
evidence along with the Memorandum of appeal, the mandatory procedure
prescribed in the said Rule has not been followed. The petitioner has
not got the opportunity to cross-examine the Hand Writing Expert as
the said Expert was not summoned, thereby constituted a grave
procedural lapse. It is submitted that the impugned order, being
illegal, deserves to be quashed and set aside,and the petition
allowed.
8. Mr.Ashutosh
R.Bhatt, learned advocate appears for respondents Nos.1/ and 1/ 2
who are the heirs and legal representatives of deceased respondent
No.1-Bhuriben. Respondents Nos.2 and 3 have been served duly but have
not chosen to appear through-out the proceedings.
9. It
is submitted by Mr.Ashutosh R.Bhatt,learned advocate, that respondent
No.1 has never stood as guarantor or appended her thumb impression on
the surety bond, therefore, neither she nor her legal heirs are
liable to pay any amount to the Bank. It is contended that respondent
No.1 has filed Criminal Complaint No.55 of 1993 before the learned
Judicial Magistrate, First Class, Ankleshwar,wherein the learned
Judicial Magistrate, passed an order for inquiry under Section 156(3)
of the Code of Criminal Procedure directing the Investigating Agency
to further investigate the matter. After the investigation, the
Police submitted a C Summary report before the learned Judicial
Magistrate which was rejected, with a direction for further
investigation. The police submitted the report along with the expert
opinion regarding the thumb impression of respondent No.1.
Ultimately, on the basis of the expert opinion and material on
record, the learned Judicial Magistrate, ordered issuance of
process. The learned counsel for the respondent No.1 has further
submitted that the respondent Nos.1/1 and 1/ 2 are not relying on the
opinion of the Hand Writing Expert but on the order of the Criminal
Court. It is further submitted that even on merits, the respondents
Nos.1/1 and 1/ 2 have a good case as it is clear from the material on
record that the rickshaws for which the loans were advanced were sold
and the Bank has remained negligent in attaching the said
rickshaws,which observation has rightly been made in the impugned
order. Though it is specifically denied that respondent No.1 ever
stood as a guarantor, for the sake of assumption if it is presumed to
be so even then, once the rickshaws are sold respondent No.1 ceases
to remain a guarantor, and her liability comes to an end.
9.1 Regarding
the provisions of Rule 85 of the Rules, it is submitted by
Mr.Ashutosh R.Bhatt,learned advocate for respondents No.1/1 and 1/ 2
that there is no violation of the said Rule by the Tribunal while
passing the impugned order. It is contended that Rule 85 does not
contain any blanket bar to the effect that no documents can be
accepted by the Appellate Authority. The said Rule stipulates that
the documents tendered by a party can be accepted by the Appellate
Authority if they are deemed necessary for deciding the appeal,
provided that the other party is entitled to produce rebutting
evidence. Mr.Bhatt has emphatically submitted that nobody had stopped
the petitioner from producing rebutting evidence, and if it has not
chosen to do so, it alone is responsible for the lapse. The
petitioner had ample opportunity to address the Appellate Authority
as per provisions of Rule 85(3) and in fact, has not been prevented
from doing so either by the Tribunal or the respondents
and,therefore, no violation of Rule 85 has occurred while passing the
impugned order. On the strength of the above submissions, it is
submitted by Mr.Bhatt that the petition be dismissed.
10. I
have heard the learned counsel for the respective parties, perused
the averments made in the petition, contents of the impugned order
and other documents on record. The first, and only, contention raised
by the learned counsel for the petitioner is that while passing the
impugned order the Tribunal has contravened the provisions of Rule
85, which constitutes a serious procedural lapse, and renders the
impugned order illegal and bad in law. In this regard, it has also
been emphasised that the Tribunal, which is the Appellate Authority,
has accepted additional evidence in the form of documents with the
Memorandum of appeal, and no separate application for production of
additional evidence was filed by respondent No.1. It has further been
submitted on behalf of the petitioner that, had an expert been
summoned the petitioner would have got an opportunity to
cross-examine him regarding the opinion given in the criminal
case,pertaining to the right thumb impression of respondent No.1.
11. In
order to decide the issues raised in the petitions,it would be
relevant to notice the provisions of Rule 85, which are reproduced
herein-below:
85.
Fresh evidence and witness :
(1) No
party to an appeal shall be entitled to adduce fresh evidence whether
oral or documentary before the appellate authority. The appellate
authority may accept
documents tendered by a party or call for the same if it is of the
opinion that they are necessary for deciding the appeal,provided that
the other party shall in that case be entitled to produce
rebutting evidence.
(2) If
the appellate authority is of opinion that any witness should be
examined, it may do so,if it is necessary for deciding the appeal.
(3) Where
fresh evidence has been adduced under sub-rule (1) or a witness has
been examined as provided in sub-rule(2) the parties may, if they so
desire address the appellate authority on points arising out of the
fresh evidence or the deposition of the witness.
12. Although
Rule 85(1) states that no party to an appeal shall be entitled to
adduce fresh oral or documentary evidence before the Appellate
Authority, it goes on to state that the Appellate Authority may
accept documents tendered by a party, or call for the same,if it is
of the opinion that they are necessary for deciding the appeal. The
inbuilt proviso under Rule 85 stipulates that in case the Appellate
Authority accepts documents tendered by a party or calls for the same
itself, the other party shall be entitled to produce rebutting
evidence. A perusal of the provisions of Sub-rule(1) of Rule 85 shows
that the said Sub-rule does not stipulate that a separate application
for producing additional evidence is to be filed by the party
desirous of tendering the same. Documents tendered by a party can be
accepted by the Appellate Authority (in this case the Tribunal) if it
forms the opinion that they are necessary for deciding the appeal.
The only rider is that, if such documents are accepted or called for,
the other side is entitled to produce evidence in rebuttal. In the
present case, admittedly respondent No.1, who was the appellant
before the Tribunal has tendered documents with the Memorandum of
appeal. The petitioner, who was opponent No.1 in the appeal, has
filed its reply to the Memorandum of Appeal, wherein the stand taken
by respondent No.1 has been denied and the documents annexed have
been rebutted. A copy of the reply produced by the learned counsel
for the petitioner, has been taken on record. The contention of the
learned counsel for the petitioner, to the effect that no opportunity
of producing rebutting evidence was granted to it cannot,therefore,
be accepted. Had the petitioner wanted to produce any more evidence
in rebuttal, it could have done so as there was no estoppal or bar
upon it. If,however, it did not choose to do so, it alone is
responsible and no provision of Rule 85 is violated nor is the order
of the Tribunal rendered bad in law or illegal,as it is not the case
of the petitioner that the Tribunal had prevented it from producing
evidence in rebuttal.
12.1 Sub-Rule
(2) of Rule 85 provides that if the Appellate Authority is of the
opinion that any witness should be examined,if it is necessary for
deciding the matter it can proceed to do so. In the present case, no
witness has been summoned. Respondent No.1 has relied upon the
judgment in the Criminal Case as well as the opinion of the Hand
Writing Expert, on the basis of which the judgment has been rendered.
It therefore,appears that the Appellate Authority did not consider
it necessary to examine the Hand Writing Expert. Discretion, whether
to summon any witness or not, lies with the Appellate Authority as
per Sub-Rule (2) of Rule 85, therefore, the contention of the learned
counsel for the petitioner that opportunity to cross-examine the
Expert was not granted to it,cannot be accepted.
12.2 Sub-rule
(3) of Rule 85 stipulates that the parties are permitted to address
the Appellate Authority,if they so desire, on points arising out of
fresh evidence that may have been adduced under Sub-rule (1) or the
deposition of witnesses under Sub-rule (2). It is not the case put
forth by the learned counsel for the petitioner that the Tribunal
has refused the opportunity, or prevented the petitioner from
addressing it, on any relevant point.
13.
The submissions advanced by the learned counsel for the petitioner
regarding violation of the provisions of Rule 85 by the Tribunal
are, therefore, not worthy of acceptance.
14. In
any case, the provisions of Rule 85 are procedural in nature and are
not substantive provisions. Even so, in the considered opinion of
this Court, the Tribunal has not digressed from the procedure
prescribed in the said Rule, while passing the impugned order.
15. Though
the learned counsel for the respondents Nos.1/1 and 1/ 2 has
addressed this Court on certain issues touching upon the merits of
the case, as the learned counsel for the petitioner has confined
the challenge in the petition only to the question of violation of
Rule 85 of the Rules, this Court does not consider it necessary or
proper to go into the other points raised.
16. As
a result of the above discussion and for the aforestated reasons,
the petitions fail and are dismissed. Rule is discharged, in both
petitions. Interim relief, if any,stands vacated,in both matters.
There shall be no orders,as to costs.
(Smt.Abhilasha Kumari,J)
arg
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