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SCA/17580/2003 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 17580 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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 ?
=========================================================
JYOTIBEN
BHIKHARIDAS PATEL & 2 - Petitioner(s)
Versus
BANK
OF BARODA - Respondent(s)
=========================================================
Appearance
:
MR
NV GANDHI for
Petitioner(s) : 1 - 3.
MR AMIT V THAKKAR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 29/11/2010
ORAL
JUDGMENT
Heard
Mr. Gandhi, learned advocate for the petitioners and Mr. Thakkar,
learned advocate for the respondent.
Present
petition has been taken out seeking below mentioned relief/s:
“8(i)
Your Lordship may be pleased to issue writ of certiorari or any
other appropriate writ, order/s or direction/s and be pleased to
quash and set aside the Execution Proceedings at Annexure-C to this
petition, pending in the Court of learned Civil Judge (S.D.) at
Bardoli be further pleased to restrain the respondent Bank from
recovering the excess amount from the petitioners.
(ii)…..
(iii)…..”
Mr.
Gandhi, learned advocate for the petitioners has submitted that
originally two suit proceedings were conducted before the learned
trial Court. One of the two suits was a Civil Suit which was
registered as Civil Suit No. B-4/1994. In respect of which a decree
dated 28.8.1998 for a sum of Rs.3,09,600/- allowing interest @ of
15% per annum, came to be passed. Mr. Gandhi further submitted that
after the decree was passed and before the execution proceedings
were initiated, compromise between the bank and the
petitioners-borrowers, who happened to be the original borrowers
against whom the decree came to be passed, was entered into on
19.7.2000 by which, the petitioners agreed to pay lumusum amount of
Rs.5,23,700/- towards full satisfaction of the decree and the bank
accepted the said settlement. Mr. Gandhi has further submitted that
subsequently i.e. within 15 days from the date of the said
compromise, the petitioners paid a sum of Rs.5,05,182/-. Having said
thus, he has made a grievance that though the aforesaid amount was
paid by the petitioners which was required to be credited against
the decree dated 28.8.1998 in Civil Suit No. B-4/1994 towards full
and satisfactory discharge of the decree, the bank seems to have
credited the aforesaid amount in some other account and has not
given credit of the said amount in favour of the petitioners. He has
also made grievance that without giving credit to the aforesaid
payment, bank has initiated and is prosecuting the execution
proceedings in respect of the decree on 28.8.1998 in Civil Suit
No.B-4/1994 and therefore the petitioners are constrained to prefer
present petition.
Mr.
Thakkar, learned advocate for the respondent has resisted the
petition stating, inter alia, that in respect of the dispute raised
in the petition, it does not deserve to be entertained.
The
petition involves disputed questions of fact which would require the
party to lead appropriate evidence, oral and/or documentary in
support of the rival contentions. The Code of Civil Procedure
prescribes appropriate procedure for the aforesaid purpose
particularly under Rule 2 of Order 21 and other provisions under
Order 21.
In
that view of the matter, learned advocate Mr. Gandhi has
submitted that the petitioners will take out appropriate
application-proceedings before the learned Executing Court so as to
establish the fact that the amount of Rs.5,05,182/- has already been
paid by the petitioners-borrowers pursuant to the above referred
settlement. However, the bank has not given credit of the said
payment in favour of the petitioners-borrowers. He also submitted
that so as to approach the learned Executing Court for the said
purpose, he does not press the petition at this stage.
In
view of the said statement and submission the petition stands
disposed of as not pressed so as to enable the petitioners-borrowers
to take out appropriate proceedings before the learned Executing
Court so as to place relevant facts on record and make appropriate
request with regard to the maintainability and justifiability of the
execution proceedings. Rule is discharged. Ad-interim relief/interim
relief if any, stands vacated. No costs.
It
is needless to state that the contention of the parties in petition
are kept open.
(K.M.THAKER,J.)
Suresh*
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