{"id":44175,"date":"2010-12-20T00:00:00","date_gmt":"2010-12-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-laxmibai-vs-the-jalgaon-merchant-on-20-december-2010"},"modified":"2016-11-29T16:47:33","modified_gmt":"2016-11-29T11:17:33","slug":"smt-laxmibai-vs-the-jalgaon-merchant-on-20-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-laxmibai-vs-the-jalgaon-merchant-on-20-december-2010","title":{"rendered":"Smt. Laxmibai vs The Jalgaon Merchant … on 20 December, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Smt. Laxmibai vs The Jalgaon Merchant … on 20 December, 2010<\/div>\n
Bench: Naresh H. Patil, Shrihari P. Davare<\/div>\n
                                       1                              lpa333.10\n\n                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                              BENCH AT AURANGABAD\n\n\n\n\n                                                                     \n                   LETTERS PATENT APPEAL NO.333 OF 2010\n                                    WITH\n                    CIVIL APPLICATION NO.18209 OF 2010\n\n\n\n\n                                             \n                                     IN\n                       WRIT PETITION NO.2337 OF 2010\n\n\n           Smt. Laxmibai w\/o Laxminarayan                      Appellant\/\n\n\n\n\n                                            \n           Zawar, age major, occup.household                   Orig. Resp.\n           Sita Sada, Opp. Gangopi Apartment                   No.1.\n           Ring Road, Jalgaon.\n\n                     versus\n\n\n\n\n                                 \n     01.   The Jalgaon Merchant Co-operative\n           Bank Ltd., Jalgaon, Address-82,\n                    \n           Merchant Sahkar Bhavan, Navi Peth,\n           Bank Street, Jalgaon, Taluka and\n           Dist.Lalgaon, through its Manager\n                   \n           Sunil s\/o Laxminiwas Baheti.\n\n     02.   Sou. Kiran Ashok Zawar,\n           age major, occup. Business,\n      \n\n     03.   Shri Ashok Laxminarayan Zawar,\n           age Major, occupatioin:business,\n   \n\n\n\n           Nos.2 & 3 r\/of 113, Polan Peth,\n           Jalgaon.\n\n     04.   Shri Sunil Laxminarayan Baheti,\n\n\n\n\n\n           Assistant Manager, age major,\n           occup. service.\n\n     05.   Shri Narendra Narayandas Rathi,\n           age major, occupation business,\n           r\/of H-13, MIDC, Ajanatha Road,\n\n\n\n\n\n           Jalgaon.\n\n     06.  Shri Sudhirchandra Laxminarayan\n          Baheti,age major,occup.business\n          and agriculture, r\/o Girad,\n          Tq. Pachora, District Jalgaon.        Respondents\n     ------------------------------------------------------------\n     Shri Dhananjay B. Thoke, Advocate, for       the appellant.\n     Shri V.D. Sapkal, Advocate, holding for Shri D.D.Pokhrankar\n     Advocate for Respondent Nos.1 and 4.\n     ------------------------------------------------------------\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 16:42:44 :::\n                                                     2                               lpa333.10\n\n                                                   Quorum:Naresh H.Patil        and\n                                                               Shrihari P.Davare,JJ.\n<\/pre>\n
                                                   Date:      20.12.2010.\n<\/p>\n
     Judgment (Per: Shrihari P. Davare, J.)<\/p>\n
     01.    Rule.  Rule  made  returnable  forthwith  and   with  the  consent   of <\/p>\n
     learned   counsel   for   the   parties,   taken   up   for   final   hearing   at   the <\/p>\n
     admission stage itself.\n<\/p>\n
     02.    Heard learned Counsel for the respective parties.\n<\/p>\n
     03.    The challenge in this Letters Patent Appeal is to the judgment <\/p>\n
     and   order   passed   by  the   learned   Single  Judge   of   this   Court   in  Writ <\/p>\n
     Petition No. 2337 of 2010, on 18.10.2010, thereby allowing the said writ <\/p>\n
     petition,   resulting   into   quashing   and   setting   aside   the   order   dated <\/p>\n
     11.8.2008 passed by the Cooperative Court, Jalgaon, below Exhibit 30 <\/p>\n
     in   Dispute   No.1057   of   2007,   restraining   the   opponents   therein   from <\/p>\n
     putting  the property in dispute for sale, and also resulting into setting <\/p>\n
     aside the judgment and order  dated 15.11.2008 passed by the learned <\/p>\n
     Member,   Maharashtra   State   Cooperative   Appellate   Court,   Mumbai, <\/p>\n
     Bench at Aurangabad, in Appeal No. 169 of 2008, thereby dismissing <\/p>\n
     the said appeal.\n<\/p>\n
     04.    Respondent   No.1   herein   is   the   Cooperative   Bank   and   the <\/p>\n
     appellant herein is alleged to be the guarantor to the loan advanced by <\/p>\n
     the said Bank to her close relatives i.e. the parties named in the Writ <\/p>\n
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\n                                                     3                               lpa333.10<\/p>\n
     Petition.   Respondent No.1 bank has assailed the order passed by the <\/p>\n
     learned Judge, Cooperative Court, in Dispute No.1057 of 2007, dated <\/p>\n
     11.8.2007   which   was   confirmed   by   the   learned   Member,   Cooperative <\/p>\n
     Appellate Court, Aurangabad, by an order dated 15.11.2008 passed in <\/p>\n
     Appeal No.169 of 2008,   by filing Writ Petition No.2337 of 2007 which <\/p>\n
     came  to be  allowed  by the learned  Single Judge  of this  court  by the <\/p>\n
     impugned order dated 18.10.2010 as afore-stated.\n<\/p>\n
     05.    On the aforesaid background, learned Counsel Shri Dhananjay <\/p>\n
     Thoke for appellant-Laxmibai, canvassed that the appellant never stood <\/p>\n
     as guarantor for the loan which was renewed from time to time and <\/p>\n
     submitted that she fairly admits the liability towards the loan which <\/p>\n
     was originally advanced and renewed upto 31.10.2002 only, but stated <\/p>\n
     that subsequent renewals were done without the consent  and signature <\/p>\n
     of   the   appellant   herein.     According   to   the   learned   Counsel   for   the <\/p>\n
     appellant, the provisions of the Indian Contract Act would also restrain <\/p>\n
     the bank to recover the said loan amount from the appellant, since the <\/p>\n
     liability after renewal is not full-fledged liability. It is also submitted <\/p>\n
     that as per Section 62 of the Contract Act, it amounts to novation which <\/p>\n
     has been admitted by the officers of the bank during cross examination <\/p>\n
     before the Cooperative Court.\n<\/p>\n
     06.    Learned   Counsel   for   the   appellant   also   argued   that   the   Debt <\/p>\n
     Recovery   Tribunal   is   having   inherent   lack   of   jurisdiction,   so   far   as <\/p>\n
     matter of fraud, or other disputed questions of facts are concerned and, <\/p>\n
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\n                                                     4                               lpa333.10<\/p>\n
     therefore, perhaps the Debt Recovery Tribunal (“DRT” for short) did not <\/p>\n
     go into the said questions of disputed facts since there is inherent lack <\/p>\n
     of jurisdiction under Section 17 of the Securitisation and Reconstruction <\/p>\n
     of Financial Assets and Enforcement of Security Interest Act, 2002 (for <\/p>\n
     short, “the Securitization Act”).  It is submitted  by learned counsel for <\/p>\n
     the appellant that according to Section 17 of the Securitization Act, the <\/p>\n
     DRT is required to look into whether the procedure is properly adopted <\/p>\n
     or not. and the DRT is not bound to conduct the full fledge trial under <\/p>\n
     the said provision.   it is further submitted that sofar as allegations of <\/p>\n
     fraud are concerned, the same are required to be adjudicated before the <\/p>\n
     Cooperative   Court   as   the   Cooperative   Court   is   empowered   under <\/p>\n
     Section 91 of the Maharashtra Cooperative Societies Act (“MCS Act” for <\/p>\n
     short) to look into the disputed questions of facts and to conduct full-\n<\/p>\n
     fledge trial and to come to the conclusion whether the loan documents <\/p>\n
     are false and fabricated.\n<\/p>\n
     07.    The learned  Counsel for the appellant also canvassed that  bar <\/p>\n
     under   section   34   of   the   Securitization   Act   is   not   absolute   bar   and <\/p>\n
     Section 34 specifically states, ” No Civil Court shall have jurisdiction to <\/p>\n
     entertain any suit or proceeding in respect of any matter which a Debt <\/p>\n
     Recovery Tribunal or the Appellate Tribunal is empowered by or under <\/p>\n
     this Act to determine and no injunction shall be granted by any court or <\/p>\n
     authority in respect of any action taken or to be taken in pursuance of <\/p>\n
     any power conferred by or under this Act or under the Recovery of debts <\/p>\n
     due to Banks and Financial Institutions Act, 1993″.   Accordingly, it is <\/p>\n
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\n                                                      5                               lpa333.10<\/p>\n
     submitted that bar under Section 34 of the Securitization Act is related <\/p>\n
     to   matters,   cognizance   of   which   is   to   be   taken   by   the   DRT   or   the <\/p>\n
     Appellate Tribunal and  the matters which are pertaining under this <\/p>\n
     Act only. Thus, the bar is limited only to the actions sought to be taken <\/p>\n
     under Section 13 of the Securitization Act.  It is further canvassed that <\/p>\n
     the learned Single Judge has not considered that bar under Section 34 <\/p>\n
     of the Securitization Act cannot come in the way of the appellant, as the <\/p>\n
     present appellant has  challenged the action of the Respondent-bank on <\/p>\n
     the ground that the bank has committed fraud on the appellant and <\/p>\n
     fabricated the documents.\n<\/p>\n
     08.     Learned Counsel for the appellant also argued that the learned <\/p>\n
     Single Judge has not considered the fact that the dispute which was <\/p>\n
     filed   by   the   appellant   under   Section   91   of   the   MCS   Act,   was <\/p>\n
     maintainable   and   as   such,   it   is   the   contention   of   the   appellant   that <\/p>\n
     there is no security interest created over the properties of the appellant <\/p>\n
     and,   therefore,   the   provisions   of   the   Securitzation   Act   are   not <\/p>\n
     applicable.\n<\/p>\n
     09.     It is further submitted by the learned Counsel for the appellant <\/p>\n
     that the learned Single Judge has not considered the law laid down by <\/p>\n
     the Hon’ble Apex Court in the case of Mardia Chemical vs. Union of <\/p>\n
     India and others<\/a>, AIR 2004 SC 2371.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:42:44 :::<\/span><\/p>\n
                                                     6                               lpa333.10<\/p>\n
     10.    To   substantiate   his   contentions,   learned   Counsel   for   the <\/p>\n
     appellant has relied upon following cases;\n<\/p>\n
                    (A)     Khamgaon   Urban   Coop.   Bank   Ltd.   vs.
\n                    Karunashankar Ramkishore Tiwari and others, 2007
\n                    (2) ALL MR 44.\n<\/p>\n
                    (B)     Authorized Officer, Indian Overseas Bank and
\n                    another vs. M\/s Ashok Saw Mill, 2009 (SCW) 4949.\n<\/p>\n
                    (C)     M\/s   Rama   Steel   Industries   and   others   vs. \n                    Union of India and<\/a> another, 2007 (6) ALL MR 739.\n                           \n                    (D)     M\/s  Asha Oil  Foods  Pvt. Ltd. vs. The  Jalgaon \n                          \n<\/pre>\n
                    Janta Sahakari Bank Ltd. and ors. 2005 (2) ALL MR
\n                    721.<\/span><\/p>\n
     11.    Accordingly,   learned   counsel   for   the   appellant   urged   that   the <\/p>\n
     impugned order dated 18.10.2010 is erroneous and unsustainable and <\/p>\n
     hence,   it   be   quashed   and   set   aside   by   allowing   the   present   Letters <\/p>\n
     patent Appeal.\n<\/p>\n
     12.    Shri   V.D.Sapkal,   learned   counsel   i\/by   Shri   D.D.Pokhrankar, <\/p>\n
     learned Advocate for Respondent Nos.1 and 4, countered the arguments <\/p>\n
     advanced   by the  learned   Counsel   for  the  appellant,  and   opposed  the <\/p>\n
     present appeal, vehemently.   It is pointed out by learned counsel for <\/p>\n
     Respondent no.1 that the appellant herein had filed Writ Petition No.<\/p>\n
     4168 of 2007 before this Court which was ultimately withdrawn by her <\/p>\n
     on 27.7.2007.    Thereafter,  the Appellant  had  filed  Dispute before  the <\/p>\n
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\n                                                    7                              lpa333.10<\/p>\n
     Cooperative Court under Section 91 of the MCS Act, on 6.9.2007 and <\/p>\n
     also approached the DRT, by filing proceedings before it, on 2.11.2007 <\/p>\n
     and the law of election expects that once a particular remedy is resorted <\/p>\n
     to, it has to be pursued till its conclusion. It is also submitted that the <\/p>\n
     Securitization  Act  is  a  complete code in itself  and everything  can  be <\/p>\n
     considered under section 17 thereof.\n<\/p>\n
     13.    It is further submitted by learned counsel for the respondent that <\/p>\n
     since the appellant approached the DRT,   the said remedy has to be <\/p>\n
     taken to its logical end.   In the said context, it is pointed out that the <\/p>\n
     appeal   filed   by   the   present   appellant   before   the   Debt   Recovery <\/p>\n
     Appellate Tribunal is still pending before the said forum and  since the <\/p>\n
     appellant is not pursuing the said appeal,  action of the appellant to file <\/p>\n
     dispute under section 91 of the MCS Act before the Cooperative Court is <\/p>\n
     unwarranted and barred by Section 34 of the Securitization Act, since <\/p>\n
     notice under Section 13(4) of the said Act was issued by Respondent No.<\/p>\n
     1  to the appellant.  In the said context, learned counsel for Respondent <\/p>\n
     No.1   placed   reliance   on  National   Insurance   Company   Ltd.   vs. <\/p>\n
     Mastan,<\/a> 2005 AIR (SCW) 6305.\n<\/p>\n
     14.    Moreover,   the   learned   counsel   Shri   V.D.Sapkal   for   Respondent <\/p>\n
     No.1   submitted   that   Writ   Petition   No.2337   of   2010   filed   by   present <\/p>\n
     Respondent   No.1   was   under   Article   227   of   the   Constitution   of   India <\/p>\n
     wherein   the impugned order dated 18.10.2010 was passed  by learned <\/p>\n
     Single   Judge   and   hence,     present   Letters   Patent   Appeal   is   not <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:42:44 :::<\/span>
\n                                                      8                               lpa333.10<\/p>\n
     maintainable.  Accordingly, learned Counsel for Respondent No.1 urged <\/p>\n
     that   present   appeal   bears   no   substance   and   same   is   devoid   of   any <\/p>\n
     merits and, therefore, same deserves to be dismissed.\n<\/p>\n
     15.     We have perused the contents of present Letters Patent Appeal, <\/p>\n
     its annexures, impugned order dated 18.10.2010 passed in Writ Petition <\/p>\n
     No.2337 of 2010 passed by learned Single Judge, and also considered <\/p>\n
     the submissions advanced by both the learned counsel for the parties, <\/p>\n
     as well as perused the judgments cited by the learned counsel for the <\/p>\n
     parties,   carefully   and   at   the   outset,   it   is   manifestly   clear   that   the <\/p>\n
     impugned   order   dated   18.10.2010   was   passed   by   the   learned   Single <\/p>\n
     Judge in Writ Petition no. 2337 of 2010 filed by Respondent No.1-Bank <\/p>\n
     herein  under Article 227  of the  Constitution of India, as  well  as  the <\/p>\n
     averments   made  therein  and   its   nature   also  appear  to  be  under   the <\/p>\n
     purview   of   the   said   Article   and,   therefore,   apparently,   there   is <\/p>\n
     substance   in   the   submission   advanced   by   learned   Counsel   for <\/p>\n
     Respondent  No.1   in  respect   of  maintainability  of  the present   Letters <\/p>\n
     Patent Appeal.\n<\/p>\n
     16.     Moreover, it is explicitly clear from the very language of Section <\/p>\n
     17   of   the   Securitization   Act   that   any   person   (including   borrower-\n<\/p>\n
     emphasis supplied)  aggrieved by any of the measures referred to in <\/p>\n
     sub-section   (4)   of   section   13   taken   by   the   secured   creditor   or   his <\/p>\n
     authorized officer under II Chapter of the Securitization Act, is entitled <\/p>\n
     to  approach   the  Debt   Recovery   Tribunal     and,   therefore,   there  is   no <\/p>\n
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\n                                                        9                                lpa333.10<\/p>\n
     substance in the arguments canvassed by the learned counsel for the <\/p>\n
     appellant that the DRT is required only to look into the aspect, whether <\/p>\n
     the procedure is properly adopted or not and the DRT is not bound to <\/p>\n
     conduct full-fledge trial under the said provisions, and the allegations <\/p>\n
     of fraud are required to be adjudicated before the Cooperative Court.\n<\/p>\n
     At   this   juncture,   it   is   material   to   note   that   the   appeal   filed   by   the <\/p>\n
     present   appellant   is   pending   before   the   Debt   Recovery   Appellate <\/p>\n
     Tribunal and, therefore, it is explicitly clear that the appellant has to <\/p>\n
     pursue the said adopted remedy to its logical end and she has no scope <\/p>\n
     to   advert   and   agitate   the   alleged   grievances   before   the   Cooperative <\/p>\n
     Court.\n<\/p>\n
     17.     Besides   that,   there   is   clear   embargo   of   Section   34   of   the <\/p>\n
     Securitization   Act   and   the   said   Section   34   is   reproduced   herein   for <\/p>\n
     ready reference.\n<\/p>\n
                     “34. Civil Court not to have jurisdiction.- No Civil Court <\/p>\n
                     shall have jurisdiction to entertain any suit or proceeding <\/p>\n
                     in respect of any matter which a Debt Recovery Tribunal <\/p>\n
                     or the Appellate Tribunal is empowered by or under this <\/p>\n
                     Act to determine and no injunction shall be granted by any <\/p>\n
                     Court or other authority in respect of any action taken or <\/p>\n
                     to   be   taken   in   pursuance   of   any   power   conferred   by   or <\/p>\n
                     under   this   Act   or   under   the   Recovery   of   Debts   Due   to <\/p>\n
                     Banks and Financial Institutions Act, 1993.”\n<\/p><\/blockquote>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:42:44 :::<\/span><\/p>\n
                                                  10                               lpa333.10<\/p>\n<\/blockquote>\n
     18.    Section 34 provides that no civil court shall have jurisdiction to <\/p>\n
     entertain any suit or proceedings in respect of any matter which a DRT <\/p>\n
     or Debt Recovery Appellate Tribunal is empowered by or under the said <\/p>\n
     legislation to determine and no injunction shall be granted by any court <\/p>\n
     or any other authority in respect of any action taken or to be taken in <\/p>\n
     pursuance of the powers conferred by or under the said legislation or <\/p>\n
     under the Recovery of Debts Due to Banks and Financial Institutions <\/p>\n
     Act, 1993. Moreover, Section 35 of the Securitization Act provides that <\/p>\n
     the provisions of the said legislation shall override other laws and shall <\/p>\n
     have effect notwithstanding anything inconsistent therewith contained <\/p>\n
     in any other law for the time being in force or any instrument having <\/p>\n
     effect by virtue of any such law.\n<\/p><\/blockquote>\n
     19.    Applying   the   parameters   of   Sections   34   and   35   of   the <\/p>\n
     Securitization Act in the instant case,  it is amply clear that since notice <\/p>\n
     under Section 13(4) of the Act was issued by Respondent No.1-Bank to <\/p>\n
     the appellant   herein,  the  remedy  available to the appellant  is  under <\/p>\n
     Section  17  of  the Act   and   there  is  complete bar  of  Section  34   of   the <\/p>\n
     Securitization Act to the appellant to approach the Cooperative Court <\/p>\n
     and hence, consequently, the acts of entertaining the dispute filed by <\/p>\n
     appellant herein before the Cooperative Court i.e. Dispute no. 1057 of <\/p>\n
     2007 and issuance of order therein 11.8.2007 by the said Court, thereby <\/p>\n
     injuncting Respondent No.1-Bank herein and dismissal of the   appeal <\/p>\n
     preferred by Respondent No.1 herein against the said order, i.e. appeal <\/p>\n
     No.169   of   2007   dated   15.11.2008     by     Member,   Maharashtra   State <\/p>\n
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\n                                                       11                                lpa333.10<\/p>\n
     Cooperative Court, Bench at Aurangabad,   were dehors the provisions <\/p>\n
     of law which were set right by the learned Single Judge of this court by <\/p>\n
     impugned   order   dated   18.10.2010   in   Writ   Petition   No.2337   of   2007, <\/p>\n
     correctly.\n<\/p>\n
     20.     Thus, we are of the considered view that there is no flaw in the <\/p>\n
     impugned order dated 18.10.2010 passed by the learned Single Judge of <\/p>\n
     this   Court   and   same  cannot   be   faulted   with   and   hence,   this   Letters <\/p>\n
     Patent Appeal deserves to be dismissed.\n<\/p>\n
     21.     In   the   result,   present   Letters   Patent   Appeal,   which   is   sans <\/p>\n
     merits, stands dismissed.  No order as to costs.\n<\/p>\n
     22.     In view of dismissal of Letters Patent Appeal, Civil Application <\/p>\n
     for stay does not survive and hence, dismissed as such.\n<\/p>\n
     (SHRIHARI  P.  DAVARE,  J.)                                        (NARESH  H.  PATIL,  J.)\n\n                                           \n\n\n\n\n\n                                           \n\n\n\n\n\n     pnd\/lpa333.10\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 16:42:44 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Smt. Laxmibai vs The Jalgaon Merchant … on 20 December, 2010 Bench: Naresh H. Patil, Shrihari P. Davare 1 lpa333.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.333 OF 2010 WITH CIVIL APPLICATION NO.18209 OF 2010 IN WRIT PETITION NO.2337 OF 2010 Smt. Laxmibai w\/o […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-44175","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSmt. 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