IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 7549 of 1999
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GAUTAM FILMS COOPERATIVE SOCIETY LTD
Versus
AHMEDABAD DISTRICT COOP BANK LTD
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Appearance:
1. Special Civil Application No. 7549 of 1999
MR BM MANGUKIYA for Petitioner No. 1-8
MR MK VAKHARIA for Respondent No. 1
MR SUNIL K SHAH for Respondent No. 2-5
.......... for Respondent No. 6-10
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CORAM : MR.JUSTICE M.S.SHAH
Date of Order: 06/07/2001
ORAL ORDER
The respondent-bank filed Arbitration Suit before
the Board of Nominees for recovering dues from the
petitioner being Arbitration Suit No.361/95. Thereafter
the respondent Bank filed restoration application which
came to be rejected. The respondent-plaintiff Bank filed
another restoration application No.147/97 which came to
be allowed by the Board of Nominees on 3-8-1998. The
petitioner therefore filed an application before the
Board of Nominees for recalling the aforesaid order
setting aside the order of dismissal of the suit for
default. The Board of Nominees rejected the said
application of the petitioner-defendant on 15-3-1999.
The petitioner’s Appeal No.522/98 also came to be
dismissed by the Gujarat State Cooperative Tribunal on
25-8-1999. Hence, this petition.
Mr. B.M. Mangukiya, learned counsel for the
petitioner has vehemently submitted that when the first
restoration application filed by the Bank was dismissed,
the Board of Nominees had no authority to hear and decide
the second restoration application.
On the other hand, learned counsel for the
respondent-Bank has submitted that the petitioner had
borrowed the loan from the respondent-Bank between 1983
and 1994 . However, the petitioner did not repay the
amounts and, therefore, the arbitration suit was required
to be filed. It is further submitted that when the suit
was fixed for hearing on 21-7-1987 before the Board of
Nominees, one officer from the respondent plaintiff Bank
was present. When the matter was called out at 11-30
a.m. the Officer as well as the learned advocate for the
petitioner had requested the Board of Nominees that the
Officer who is going to give deposition would be arriving
at 12-30. However, the Board of Nominees dismissed the
suit for default. Thereafter the Officer who was to give
deposition had arrived in the Court at 1-00 p.m. and
application was made for setting aside the order of
dismissal of the suit for default which was not granted.
Hence, a separate Misc. Civil Application for
restoration of the suit was made which came to be granted
by the Board of Nominees. It is submitted that the Board
of Nominees as well as the Tribunal have given concurrent
findings that there was sufficient cause for the
nonappearance of the plaintiff’s witness. In view of the
above, this petition may be dismissed.
Having heard the learned counsel for the parties,
it appears that when the witness came to the Court, an
application was given merely stating that the witness has
come for giving evidence, therefore, the order of
dismissal for default may be recalled. That application
appears to have been rejected with one word `rejected’.
Thereafter, the plaintiff-bank filed a detailed
application for restoration giving reasons for
nonappearance of the witness particularly it was pointed
out that after the suit was filed, the hearing of the
suit was adjourned on a number of occasions and,
therefore the learned advocate for the Bank as well as
the officer of the Bank had requested the Court that the
witness will be coming shortly. It thus appears that the
witness was not present at 11-30 on 26-8-1997 because the
hearing of the suit had been adjourned on a number of
previous occasions and, therefore, the witness was to
come as and when there was some certainty that the
evidence will be recorded. Considering the fact that the
suit was filed by the Bank for recovery of its dues and
that the witness had reported for recording evidence on
the day on which the suit was fixed for hearing albeit
the witness was late by a few hours, in the facts and
circumstances of the case, it cannot be said that the
Board of Nominees committed any jurisdictional error in
restoring the suit to file.
As regards the contention that since the first
application was rejected and, therefore, the second
application should not have been entertained by the Board
of Nominees, assuming that the first application was
rejected, and assuming that there was an illegality on
the part of the Board of Nominees, as per the well
settled legal position, the writ jurisdiction under
Article 226 and 227 is discretionary and this Court would
not issue a writ merely upon the petitioner showing that
there has been an illegality without showing that there
is also injustice. This is well settled as per the
decision of the Apex Court in AIR 1957 SC 226, and in the
facts and circumstance of the case, if at all there is
injustice it was to the plaintiff Bank when the suit was
dismissed for default even when the learned advocate for
the Bank as well as another Officer present had requested
the Board of Nominee to keep back matter for some time so
that the witness would be reaching the Court.
The petition is therefore dismissed. Notice is
discharged.
(M.S. Shah,J)
zgs/-