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SCA/350/2008 8/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 350 of 2008
=========================================================
KAUSHIKBHAI
N HUDAD - Petitioner(s)
Versus
GUJARAT
STATE FINANCIAL CORPORATION & 2 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Petitioner(s) : 1,
MR DEVANG D TRIVEDI for Respondent(s) : 1 -
2.
MR JAYESH A KOTECHA for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 29/09/2008
ORAL
ORDER
The
petitioner by this petition has prayed for the relief, inter alia,
to declare that the action of the respondent Corporation vide
communication Annexure C is unjust and improper and the
petitioner has also prayed to direct the respondent Corporation to
accept the amount as per the proposal dated 2.1.2008.
Heard
Mr.Dagli, learned Counsel appearing for the petitioner and
Mr.Trivedi, learned Counsel for the Corporation.
Upon
hearing the learned Counsel appearing for both the sides, it appears
that the Corporation did communicate to the petitioner vide letter
dated 2.1.2008 Annexure B that the matter can be settled
against the payment of Rs.27,31,011/- out of which the petitioner
had to deposit 25% of the principal amount and vide letter dated
28.12.2007, the petitioner was communicated that the principal
amount was Rs.12,10,437/- and 25% comes to Rs.3,02,610/- which, if
deposited by the petitioner, the matter can further be considered,
failing the Corporation may be required to take action for disposal
of the property and it is under these circumstances, the petitioner
has approached this Court by the present petition.
This
Court (Coram: Anant S. Dave, J.) on 11.1.2008 had passed the
following order:-
Mr.
Ashish Dagli, learned advocate for the petitioner, submits that the
petitioner is ready and willing to deposit 25% of the approximated
amount of Rs.27,99,037/- (Rupees Twenty Seven Lac Ninety Nine
Thousand and Thirty Seven only) with Deputy General Manager, Region
Office of the respondent Corporation at Rajkot on or before
18.01.2008.
Upon
the above statement, ad-interim relief in terms of para 7{E}
till then.
In
case, if the petitioner fails to deposit 25% of the above-mentioned
amount on or before 18.01.2008, this ad-interim relief shall stand
vacated. Direct service is permitted.
Thereafter
on 17.1.2008, the following order was passed:-
Heard
Mr. A.M.Dagli, learned counsel for the petitioner. He has drawn
attention of this Court to the figure mentioned in the order dated
11.1.2008. In absence of the counsel appearing for the other side, it
will not be either proper or justified for this Court to correct the
figure mentioned in the above order, because, it would be a
substantive deduction. Therefore, before passing orders under Note
for Speaking to Minutes, it would be in the interest of justice to
extend the date of payment fixed by the Court vide order dated 11th
January, 2008.
It
is therefore directed that the petitioner can pay 25% amount on or
before 22nd January, 2008 instead of 18th
January, 2008. By that time, the Court will be able to ascertain
and decide the exact amount which is required to be paid under the
Scheme floated by the Gujarat State Financial Corporation. The
matter is adjourned to 18th January, 2008. The matter be
listed in the Ist Board. Direct service is permitted.
The
order was thereafter further passed on 18.1.2008 below note for
speaking to minutes as under:-
Heard
Mr. Asish Dagli, learned counsel for the petitioner.
In
the background of the order passed by this Court on 11th
January, 2008, Mr. Devang D. Trivedi, learned counsel appearing for
the respondent Corporation is present. He fairly concedes on
instructions that the amount of Rs.12,10,438/- ought to have been
mentioned in the order in stead of Rs.27,99,037/-. Therefore, the
order passed by this Court on 11th January, 2008 be read
and construed accordingly. Now, the petitioner is entitled to pay
25% of the amount of Rs.12,10,438/- to the respondent Corporation
in compliance of the Scheme adopted by the petitioner. Copy of this
order be placed in the proceedings of Special Civil Application No.
350 of 2008. This order may be conveyed to the concerned authority
by the learned counsel for the respondent GSFC, who is present in
the Court. Note for speaking to minutes filed by the petitioner is
disposed of accordingly. The main matter be listed for admission
hearing on 30th January, 2008.
As
a consequence thereof the petitioner has deposited 25% of
Rs.12,10,438/-, which has already been deposited. It further
appears that pending the petition, the respondent Corporation had
processed the application of the petitioner for One-Time Settlement
and as per the respondent Corporation vide letter dated 31.5.2008
the petitioner was called upon to make payment of Rs.24,51,916/- in
four equal instalments of Rs.6,12,980/-, which would have become
payable by June, July, August and September, 2008. It is the case
of the respondent Corporation that the communication was forwarded
to the petitioner, however, postal endorsement has returned back
with the remarks. As per the petitioner since he is not residing at
Rajkot, the communication was not received. Be that as it may, the
learned Counsel for the petitioner, under the instructions to his
client, states that the petitioner is ready to pay the outstanding
amount of Rs.24,51,917/- as per the communicated dated 31.5.2008 and
is also further ready to pay the interest at the rate of 12% p.a.
for the delay in payment of the amount.
Mr.Trivedi,
learned Counsel for the respondent Corporation, states that as such
the Corporation is charging 3% additional penal interest, but if
this Court so directs, the payment can be accepted.
Mr.Dagli,
learned Counsel for the petitioner further contended that after the
Corporation took over the possession of the property, thefts have
taken place and, therefore, some officer of the Corporation may be
directed to inquire into the matter and if ultimately it is found
that there is default on the part of the officers of the Corporation
or the security agency engaged by the Corporation, relaxation may be
given in payment of One-Time Settlement and after the payment is
made by the petitioner, the property may be returned to the
petitioner.
Mr.Trivedi,
learned Counsel for the respondent Corporation states that the
Corporation can inquire into the matter, if it is so directed by
this Court.
It
appears that if there are thefts of the machineries after the
Corporation took over the possession, it will be required for the
Corporation to inquire into the matter and if any loss is caused on
account of the thefts due to laxity on the part of the Corporation
or its officer(s), including the security agency it would be
required for the Corporation to take corrective measure and also to
make good the loss, if any, caused to the petitioner.
In
view of the aforesaid, I find that the following directions shall
meet with the ends of justice:-
(a) The
petitioner shall abide by the declaration made of paying the amount
by four equal instalments of Rs.6,12,980/- each, the first
instalment by 31st October, 2008 and thereafter, on every
next three months, and the last instalment on of before 31st
January, 2009. The interest for the delayed payment on the basis of
the communication dated 31.5.2008 shall be additionally paid by the
petitioner to the Corporation on or before 28.2.2009. It is also
observed and clarified that in the event there is failure on the
part of the petitioner to pay any of the instalments, it would be
open to the Corporation to sell the property by following the
procedure in accordance with law. However, if the amount if fully
paid by the petitioner to the respondent Corporation as per earlier
direction, the respondent Corporation within two weeks from the full
payment of the amount, as indicated hereinabove, shall entrust the
possession of the property to the petitioner by drawing proper
panchnama.
(b) It
is also observed that the petitioner shall be at liberty to make
representation to the Corporation for the loss caused to him on
account of the alleged thefts, after the Corporation took over the
possession, within a period of four weeks from today. Such
representation shall be examined and decided by the General Manager
of the respondent Corporation within a period of three months from
the date of receipt of the representation. If it is found that
there was any laxity on the part of the officer(s) of the
Corporation or the security agency, the amount shall be quantified
and the petitioner shall be returned the said amount. In the event
the officer(s) of the respondent Corporation finds that there was no
laxity or callous approach on the part of the officer(s) of the
Corporation, including the security agency, and the representation
of the petitioner is not accepted, the petitioner may have the
remedy in accordance with law.
(c) It
is also clarified that the pendency of the representation or the
order passed therein shall not operate as a bar for implementation
of the earlier directions and the petitioner shall be required to
make payment as per the declaration made and recorded hereinabove
and directed accordingly.
The
petition is disposed of in terms of the aforesaid directions.
Direct service is permitted.
29.9.2008 (Jayant
Patel, J.)
vinod
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