SCA/4929/1993 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4929 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = AVIRAJ TRADERS Versus GUJARAT STATE CO.OP.TRIBUNAL AND ANOTHER ========================================= =Appearance : MR KIRIT I PATEL for the Petitioner MR SHIIVANG SHUKLA, AGP for Respondent No.1 MR THOMAS for MR PV NANAVATI for Respondent(s) : 2, MR VIBHUTI NANAVATI for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/03/2008 ORAL JUDGMENT 1. Short facts of the case appear to be that respondent No.2 Bank filed a suit against the petitioner for recovery of the amount of Rs.79,757/- with interest before the learned Nominee, being Lavad Suit No.2014 of 1988. The summons were served and as there was application for attachment before judgment, written reply was also SCA/4929/1993 2/5 JUDGMENT submitted by the petitioner, who was defendant in the suit. In the said reply, the suit was denied. However, it was stated that, in view of the Fixed Deposits, loan was given of overdraft. It was prayed that the defendant be permitted for adjustment of the deposit. In the suit, pursis came to be filed before the learned Nominee by the learned advocate for the defendants on 16.2.1990 declaring that, in view of the reply, the defendant agrees for payment by installments, if the deposits are adjusted of the family members. The learned advocate for the Bank objected to such pursis. However, the learned Nominee by observing that the directives of the Reserve Bank are not binding, ordered that award be drawn as per the pursis. It appears that the order below pursis came to be passed after some time, i.e. on 29.10.1991, whereas the pursis was submitted on 16.2.1990. The learned Nominee passed the award decreeing the whole suit with interest at the rate of 20.5% and further directed for adjustment of the deposit of the family members of the petitioner. The petitioner carried the matter in appeal before the Tribunal, being Appeal No.391 of 1992. The Tribunal did not interfere with the award and dismissed the appeal vide judgment dated 8.4.1993 and under these circumstances, the present petition. 2. Heard Mr. Patel, learned counsel for the petitioner, Mr. Thomas for Mr. Nanavati, learned advocate for respondent No.2 and Mr. Shivang Shukla, learned Assistant Government Pleader for respondent No.1. SCA/4929/1993 3/5 JUDGMENT 3. The only aspect, which may arise for consideration, is as to whether the learned Nominee could pass the award based on the declaration/ pursis submitted by the learned advocate for the petitioner or not. 4. As such, the matter is covered by a decision of this Court in the case of Kantaben T. Shah and others Vs Devendrakumar C. Shah and others reported in 2002 (2) GLR 1005 so far as the exercise of power by the Civil Court for passing the decree based on the pursis signed by the lawyers is concerned. As per the view taken by this Court in the above-referred decision, compromise pursis, as per Order 23 Rule 3 of the Civil Procedure Code, is required to be signed by the parties to the proceedings and, if not signed, decree would be bad in law. 5. In the present case, it is an admitted position that the pursis is not signed by the defendant but is signed by the advocate. Though the provisions of Order 23 Rule 3 of the CPC may not be strictly applicable to the proceedings before the Nominee, but principles analogous to the provisions of the Civil Procedure Code can be made applicable. Therefore, applying such principles, as such since the pursis was not signed by the party to the proceedings, the award passed by the learned Nominee cannot be sustained. 6. Additional circumstance in the present case is that the plaintiff has not agreed for such pursis and has rather objected to SCA/4929/1993 4/5 JUDGMENT such pursis. Therefore, in view of the aforesaid non-agreement on the part of the plaintiff, even if the learned Nominee was to act upon, the admission through the advocate of the defendant, it was required for him to record the reasons and then to further consider the matter. Moreover, the pursis is submitted on 16.2.1990 and the award is passed on 29.10.1991. When the pursis is submitted and if the party had appeared before the Nominee, it would be of the same date. The aforesaid can be said as an additional ground for not maintaining the award passed by the Nominee. 7. Unfortunately, the Tribunal has not considered the aforesaid aspect, which goes to the root of the matter, and has misdirected itself to the effect that the bank has given adjustment of the fixed deposit receipts and, therefore, no case is made out for interference to the award passed by the Nominee. 8. In view of the above, impugned award passed by the Nominee dated 29.10.1991 in Lavad Suit No. 2014 of 1988 and confirmation thereof by the Tribunal in Appeal No.391 of 1992 are quashed and set aside with the direction that Lavad Suit No.2014 of 1988 shall stand restored to file of the Nominee. The learned Nominee shall decide the suit afresh after giving opportunity of hearing to both the sides, as early as possible, preferably within six months from the date of the order of this Court. The petition is allowed to the aforesaid extent. Rule is made absolute according. No order as to cost. SCA/4929/1993 5/5 JUDGMENT (JAYANT PATEL, J.) omkar