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SCA/13585/2009 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13585 of 2009
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HARKISHANBHAI
TRIBHOVANBHAI SHETH - Petitioner(s)
Versus
JIVAN
COMMERCIAL COOPERATIVE BANK LIMITED & 4 - Respondent(s)
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Appearance :
MR
PM LAKHANI for
Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 MRS RP LAKHANI
for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5
None for
Respondent(s) : 1 -
5.
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 13/01/2010
ORAL
ORDER
1. The
petitioner, by this petition, has prayed for the relief inter alia to
declare the actions of the bank and its officers initiated against
the petitioner in so far as taking away the possession of the
showroom of the petitioner without following the due procedure of law
and disposing of the stocks as bad in law. The petitioner has also
prayed to direct the respondents to forthwith restore the possession
of the showroom known as ‘Buddhisagar Grasim Gwalior Showroom’,
situated at Sir Lakhaji Raj Road, Rajkot alongwith movable assets
like share certificates, furniture and fixtures etc.
2. Heard
Mr. Lakhani, learned counsel appearing for the petitioner.
3. The
contention raised on behalf of the petitioner is that the fundamental
rights of the petitioner has been violated and large number of
irregularities have been committed by the learned Nominee in passing
the award and also by the authority in issuance of the certificate.
It has been submitted that the petitioner had made complaint to the
police which has not been registered, therefore, under these
circumstances, the alternative remedy would not be efficacious
alternative remedy. He submitted that the suit was filed by the
petitioner being Suit No. 10 of 2005 but the same has been dismissed
for non-payment of the court fees. Under these circumstances, the
present petition.
4. Having
heard the learned counsel for the petitioner it appears that the
petition is by joining the multifarious cause of action in one
petition and the prayer made is also too vague and too general.
5. If
the petitioner has any grievance against any action taken by the bank
under the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred to
as the ‘Securitization Act’ for short), the petitioner has the
express statutory remedy available under Section 17 before the Debts
Recovery Tribunal, which admittedly has not been resorted to. If the
petitioner has any grievance against any action of the Board of
Nominee or the award passed therein, the petitioner has the remedy of
approaching before the Tribunal. Further, if the certificate has been
wrongly issued by the competent authority then also the petitioner
has the remedy as provided under the Gujarat Cooperative Societies
Act. None of such remedy has been exhausted by the petitioner.
6. It
is also an admitted position that the property is transferred in
favour of the auction purchaser and the registered sale deed is also
executed. Therefore, in normal circumstance, the petitioner could
have filed the civil suit, which appears to have been filed being
Civil Suit No. 10 of 2005 but the same has been dismissed on the
ground that the requisite court fee was not paid. Had the petitioner
no capacity to pay court fees, nothing prevented him to
pursue the suit as an indigent person or in alternative if the Civil
Court has wrongly dismissed the suit, the petitioner has the remedy
available under the Code of Civil Procedure of carrying the matter
before the higher forum. Even if the contention of the petitioner is
considered that the complaint was not accepted by the police, the
petitioner could have resorted to the appropriate proceedings by
filing complaint before the competent Court which has also not been
resorted to.
7. There
is no question of involvement of any fundamental rights or breach of
the fundamental rights as sought to be canvassed.
8. In
view of the aforesaid, as the petitioner has not resorted to the
appropriate remedy under the relevant statute for challenging the
legality and validity of the action, the petition cannot be
entertained.
9. Apart
from the above, it also deserves to be recorded that once the sale
deed is executed in favour of the purchaser, the rights of third
party are created. Further the allegations made in the petition, even
if are to be examined, it would require a full fledge inquiry where
the opportunity will be required to be given to both the sides to
lead the evidence and examination thereof and such cannot be
conveniently undertaken by this Court in a petition under Article 226
of the Constitution.
10. In
view of the above, the petition is not entertained, hence dismissed.
[JAYANT
PATEL, J.]
jani
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