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CA/5619/2010 3/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR DIRECTION No. 5619 of 2010
In
SPECIAL
CIVIL APPLICATION No. 9201 of 2005
=========================================================
PRAN
S FULTARIYA & 1 - Petitioner(s)
Versus
GUJARAT
CO-OPERATIVE BANK AND CREDIT SOCIETY SHAREHOLDER & 11 -
Respondent(s)
=========================================================
Appearance :
MR
RS SANJANWALA for
Petitioner(s) : 1 - 2.
MR TS NANAVATI for Respondent(s) :
1,
GOVERNMENT PLEADER for Respondent(s) : 2 - 5.
MR DHARMESH V
SHAH for Respondent(s) : 6,
MR MITUL K SHELAT for Respondent(s) :
7,
None for Respondent(s) : 8 - 10, 12,
MR KV SHELAT for
Respondent(s) :
11,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 27/05/2010
ORAL
ORDER
1. Leave
to amend.
2. The
Civil Application was for consideration before this Court yesterday.
The Court passed the following order:
To
enable the applicants to produce a Demand Draft of Rs.1.5 crore in
favour of the Liquidator Charotar Nagrik Sahakari Bank Ltd., the
matter is kept tomorrow i.e. on 27th May 2010.
3. Today,
the learned Senior Advocate Mr. Oza with Mr. R.S.Sanjanwala for the
applicants hands over a Demand Draft of Rs. 1.5 crore to the learned
Advocate Mr. D.V.Shah and also hands over two post dated cheques of
Bank of India bearing No. 036945 and 036946, each of Rs. 1.75 crore
dated 02.06.2010 and 09.06.2010. They are signed by
Director/Authorized Signatory of Bhavya Developers and Organizers, a
division of Bhavya Infrastructure and Development Ltd. These two
cheques are also handed over to Mr. D.V.Shah, learned Advocate
appearing for the opponent No.6 Liquidator for Charotar Nagarik
Sahakari Bank Ltd. (in liquidation). The learned Senior Advocate for
the applicants requested that in light of the aforesaid positive act
on the part of the applicants, the relief as prayed for in the
petition be granted.
4. The
relief prayed in para 13 is as under:
(a) That
pending hearing and final disposal of Special Civil Application
No.9201 of 2005, the following directions may be issued:
I. That
the High Level Committee of the State Government may be directed to
forthwith consider and grant One Time Settlement as per the State
Government policy dated 19.05.2010 to the applicants and the various
accounts (19) of the applicants treating the said accounts as group
accounts:
II. The
State Government and the Liquidator of Charotar Bank may be directed
to dispose of the mortgaged properties as per list Annexure-G,
jointly with the applicants, and to deposit the sale consideration in
a No Lien Account to be appropriated against the settlement amount
once the High Level Committee decides the OTS proposal.
III. That
all further proceedings in connection with FIR bearing C.R. No. 6 of
2002 and the charge-sheet dated 16.09.2006 & 11.10.2006 against
the present applicants may be stayed.
5. The
learned Senior Advocate for the applicants submitted that the High
Level Committee of the State Government may be directed to decide the
question of grant of One Time Settlement to the applicants for
various accounts, 19 in number, treating them to be group accounts in
light of the contents of the State Government policy dated
19.05.2010. The request is found to be reasonable and also
acceptable. Hence, it is granted.
6. So
far as the relief prayed in clause II is concerned, the learned
Advocate for opponent No.6 submitted that the word No Lien Account
should be deleted and then the relief be considered for being
granted. The learned Advocate for opponent No.6 submitted that in any
case the amount payable by the present applicants is not going to be
less than 38 crores, even as per the claim of the applicants. He
submitted that, in fact, the amount is much more according to the
Liquidator of Charotar Nagarik Sahakari Bank Ltd. But, then the
matter is required to be decided by the High Level Committee of the
State Government, after taking into consideration the say of the
Liquidator. That being so, the Liquidator of Charotar Nagarik
Sahakari Bank Ltd. is directed to dispose of the mortgaged properties
listed in the list at Annexure-G by an acceptable mode of public
auction in a transparent manner and in the event the properties are
such for which public tender is required to be invited, it will be
open for the Liquidator to do so.
6.1. The
Liquidator shall place the progress report after each sale before
this Court. It is made clear that the Liquidator shall not wait for
all the properties to be sold at a time. He must start selling the
properties immediately so as to avoid any further delay. As it is the
case of the present applicants that if the applicants succeed in the
matter pending before the Hon’ble the Apex Court the amount payable
will be very less. The fact that the principal amount is 21 crore,
the amount realized up to 21 crores can directly be appropriated by
the Liquidator. It is only the interest amount which will vary, as
that will depend upon the outcome of the matter pending before the
Hon’ble the Apex Court. The Court, therefore, deems it fit to direct
the Liquidator to keep the excess amount, excess to Rs.21 crores in a
separate account and it should be appropriated only after obtaining
necessary orders from this Court.
7. Coming
to the mortgaged properties which are set out in list at Annexure-G,
it is directed that the applicants shall remain present at Charotar
Nagarik Sahakari Bank’s Ahmedabad branch at 11.00 a.m. tomorrow i.e.
28.05.2010, to handover the peaceful vacant possession with
marketable title, of the properties listed in Annexure-G.
8. Coming
to the relief prayed in clause III i.e. stay of further proceedings
in connection with FIR bearing C.R. No. 6 of 2002 and the
charge-sheet dated 16.09.2006 & 11.10.2006 against the present
applicants is concerned, the learned Advocate Mr. T.S.Nanavati
vehemently opposed the same. He submitted that the present applicants
had filed Special Criminal Application No. 761 of 2010 for quashing
of the charge-sheets to the extent the same concern the applicants.
He submitted that this Civil Application is nothing but an attempt to
obtain the relief which they are not able to obtaine in quashing
petition before this Court.
8.1. Prima
facie, the submission of Mr. T.S.Nanavati appears to be acceptable.
But, the same is not accepted by the Court for the reasons that the
FIR is of the year 2002, the charge-sheets are filed in the
year 2006 and we are in the year 2010 and still by no
means/machinery any amount could be recovered from the applicants.
Now, when the applicants have come forward and have shown their
bonafide by paying 1.5 crore and two post dated cheques, each of
Rs.1.75 crore, of dated 02.06.2010 and 09.06.2010, this Court deems
it fit to grant conditional stay of the further proceedings in
connection with FIR bearing C.R. No. 6 of 2002 and the charge-sheets
dated 16.09.2006 & 11.10.2006. The proceedings in connection with
FIR bearing C.R. No. 6 of 2002 and the charge-sheets dated 16.09.2006
& 11.10.2006 are stayed on condition that if any of the cheques
dated 02.06.2010 or 09.06.2010 get dishonoured, this relief will
stand vacated automatically without reference to the Court. It is
clarified that in the event any property mentioned in Annexure-G list
is found to be non-marketable on account of seals applied by any
other creditors than the Liquidator of Charotar Nagarik Sahakari Bank
Ltd., the relief of stay of proceedings in connection with FIR
bearing C.R. No. 6 of 2002 and the charge-sheets dated 16.09.2006 &
11.10.2006, will stand vacated automatically.
9. The
matter is adjourned to 7th June, 2010 only for the purpose
of reporting the honouring of cheque dated 02.06.2010. In the event,
it is reported that the cheque dated 02.06.2010 is honoured, the
matter shall stand over to 11.06.2010 for the purpose of reporting
the honouring of another cheque dated 09.06.2010. On that day, if it
is reported that the cheque dated 09.06.2010 is honoured, the matter
shall be listed on 30th August, 2010. It is made clear
that in the meantime if the Liquidator of Charotar Nagarik Sahakari
Bank Ltd. faces any difficulty qua handing over of the peaceful,
vacant possession with marketable title, it will be open for him to
get the matter placed on board immediately.
10. Learned
Advocate for opponent No.6 Liquidator of Charotar Nagarik
Sahakari Bank Ltd. requested that the applicants be directed to
deposit Rs. 5 lacs separately for incurring the expenses of
advertisement for the purpose of sale of the properties mentioned in
list Annexure-G. The amount of Rs. 5 lacs shall be deposited by the
applicants within one week from today with the Liquidator.
11. The
applicants have filed undertaking to the effect that the post dated
cheques will be honoured on its presentation.
12. Direct
service permitted today.
(RAVI
R. TRIPATHI, J.)
jani
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