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SCA/10354/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10354 of 2008
=========================================
A
V M ENGINEERING WORKS AND OTHERS
Versus
VIJAY
CO OPERATIVE BANK LTD AND ANOTHER
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Appearance :
MR
PC KAVINA with MR HR PRAJAPATI for the
Petitioners
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 14/08/2008
ORAL
ORDER
Leave
to amend.
2. The
petitioners are before this Court praying that:-
?S22. (A) Your Lordships be
pleased to issue a writ of Certiorari or any other appropriate writ,
order and/or direction and be pleased to quash and set aside the
impugned order dated 17.5.2008 passed by the Gujarat Co-operative
Tribunal in restoration application no.30/2007 as well as the order
dated 28.6.2004 passed in Appeal No.358 of 2001 refusing to condone
the delay in filing the appeal as being illegal, invalid, null &
void, unjust, unfair and violative of Art. 14 of the Constitution of
India.
3. It is indeed a clever drafting of the learned advocate for the
petitioners to challenge the order passed in the year 2004. The same
is worth appreciating. In fact, order dated 28.06.2004 ought to have
been challenged as soon as it was passed, but for the reasons known
to the petitioners, the same was not done. Not only that, it was not
challenged soon, as per the legal advise available to the
petitioners, the petitioners chose to file a restoration application
on 08.08.2006.
By any standards, this restoration application itself was beyond
time and therefore, an application seeking condonation of delay was
filed along with the restoration application.
4. The Tribunal condoned the delay caused in filing the restoration
application. But, merely because delay was condoned, the restoration
application did not become maintainable or liable to be granted. The
Tribunal thereafter considered the restoration application on merits
and found that the restoration application is not having sufficient
merit to be granted and therefore, dismissed the same by order dated
17.05.2008.
In an appeal which was not alive in view of the order passed on
delay condonation application on 28.06.2004, there was no question of
filing any restoration application, but nobody can prevent the
petitioners from filing such restoration application, even if it was
after lapse of more than two years. Only because the Tribunal had
condoned the delay, the petitioners do not get right to say that his
restoration application be also allowed, whereby a matter which has
already died on account of non-condonation of delay in the year 2004,
be brought to life.
5. In view of the aforesaid facts, wherein the had appeal already
died as the delay condonation was refused in the year 2004, cannot be
allowed to come to life by interfering with the order passed on
restoration application, which otherwise does mot warrant any
interference at the hands of this Court.
6. Even on merits if the petitioners have the case that the decree as
is passed against the petitioners could not have been passed in that
formate, the petitioners have lost that opportunity by not
challenging order dated 28.06.2004 for all these years. The so
called challenge to that order, in the form of restoration
application, was also after expiry of more than two years. The
Court, therefore, finds that this is a fit case wherein the
petitioners shall be refused indulgence and relief as prayed for.
7. The petition fails and the same is dismissed.
(RAVI
R.TRIPATHI, J.)
*Shitole
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