AO/326/2007 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 326 of 2007 With CIVIL APPLICATION No. 11979 of 2007 In APPEAL FROM ORDER No. 326 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= SMITA MUKESH SHAH - Appellant(s) Versus RECOVERY / SALE OFFICER AHMEDABAD PEOPLES CO OP BANK & 2 - Respondent(s) ========================================================= Appearance : MR PAVAN S GODIAWALA for Appellant(s) : 1, MR AK CLERK for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/08/2008 ORAL JUDGMENT 1. Present Appeal From Order is filed by the appellant – original plaintiff challenging the order dtd.21/8/2007 AO/326/2007 2/14 JUDGMENT passed by the learned Chamber Judge, City Civil Court NO.5, Ahmedabad below Notice of Motion Ex.6/7 in Civil Suit No. 2900 of 2003. 2. The appellant – original plaintiff has instituted Civil Suit No. 2900 of 2003 in the City Civil Court at Ahmedabad for permanent injunction restraining the defendant No.1 – Recovery/Sale Officer, Ahmedabad Peoples Co-operative Bank Ltd., its officer, agent and servant from acting upon notice dtd.10/1/2003 and/or attaching and/or dealing in any manner with the suit property being Bungalow situated at “Shyam Hari”, Vastrapur being Final Plot No.22/2 and/or disturbing the possession of the plaintiff and her family members of the suit property. In the said suit, the plaintiff also took out Notice of Motion seeking temporary inunction of the similar nature. 3. The appellant – plaintiff is the wife of the defendant No.2 and mother of the defendant No.3. At the outset, it is to be noted that Ahmedabad Peoples Cooperative Bank Limited instituted Lavad Case No.1054 of 1999 against the husband of the plaintiff – Mukesh Shyamlal Shah with respect of the dues of M/s.Ahmedabad Motors and a decree came to be passed by the learned Board of Nominees on 16/6/2002 and thereafter a notice AO/326/2007 3/14 JUDGMENT dtd.10/10/2003 came to be issued by the defendant No.1 – recovery officer of the Bank in exercise of powers under sec.159 of the Gujarat Cooperative Societies Act, 1961 (“the Act”) read with Rule 96 of the rules framed under the Act for recovery of the amount due and payable under the said decree. The case of the plaintiff in the suit was that the suit property being Bungalow situated at “Shyam Hari”, Vastrapur originally belonged to one Smt.Shobhnaben Shyamlal Harilal – mother-in-law of the plaintiff, which was inherited by Shobhnaben on the demise of her husband – Shyamlal Harilal; that the said Shobhnaben during her life time had executed a Will on 20/3/1999 whereby she had formed a family trust nominating four beneficiaries of the trust, namely, the husband of the plaintiff i.e. defendant No.2 – Mukeshbhai Shyamlal Shah, the plaintiff herself; the son of the plaintiff – Viralbhai Mukeshbhai Shah i.e. defendant No.3 and the respective HUFs of the defendant Nos.2 and 3; that the suit property held by the said late Smt.Shobhnaben Shah was bequeathed by her in the name of the said Trust; that the said Shobhnaben expired on 25/6/1995; that on or about 14/10/2003, the defendant Nos.2 ie. Husband of the plaintiff, who was AO/326/2007 4/14 JUDGMENT Managing Trustee received an envelope containing a notice of attachment issued by the defendant No.1 – recovery officer of Ahmedabad People's Cooperative Bank Limited, addressed to the plaintiff's husband in the capacity of Partner of M/s.Ahmedabad Motors; that by said notice, the suit property, which belonged to the family trust, was sought to be attached and sold by the said defendant No.1 for the purpose of recovery of alleged dues of M/s.Ahmedabad Motors; that on inquiry, it was found that the decree was passed by the Board of Nominees against M/s Ahmedabad Motors in the recovery proceedings initiated by the defendant No.1; that the suit property was never mortgaged to the defendant No.1 - bank by the firm – M/s.Ahmedabad Motors; and therefore, the suit property could not have been sold or attached for the purpose of recovering the dues of M/s.Ahmedabad Motors. Therefore, the aforesaid suit came to be filed and the Notice of Motion was taken out by the plaintiff; that though the Will was executed by Shobhnaben way back on 20/3/1992, nobody was aware of the same and creation of the family trust by her under the Will and the said Will was kept by his Uncle – Ramakant Harilal Shah, who had slept out of his mind till AO/326/2007 5/14 JUDGMENT 1998 and all of a sudden, he came to know about the said will and immediately necessary entry was mutated in the year 1999. It was submitted that by the aforesaid Will, family trust was created and the plaintiff was one of the beneficiaries 4. The Notice of Motion was resisted by the defendant No.1 by filing Written Statement at Ex.22, to which the plaintiff filed rejoinder at Ex.27. The defendant Nos.2 and 3 did not file any reply to the Notice of Motion. However, the defendant No.2 filed one affidavit at Ex.80 and in reply thereto, the defendant No.1 filed rejoinder at Ex.87. 5. That after considering the rival contentions made on behalf of the respective parties, the learned Chamber Judge, City Civil Court No.5, Ahmedabad by the impugned order dtd.21/8/2007 dismissed the Notice of Motion and vacated the ad-interim injunction granted earlier. Feeling aggrieved by and dissatisfied with the same, the appellant – plaintiff has preferred the present Appeal From Order with Civil Application therein for interim relief. 6. Mr.Pavan Godiyawala, learned advocate appearing on behalf of the appellant has submitted that in view of the Will executed by deceased Shobhnaben creating trust in AO/326/2007 6/14 JUDGMENT which the appellant plaintiff is also one of the beneficiaries, the learned Chamber Judge ought to have allowed the Notice of Motion restraining the respondents - defendant No.1 Bank from attaching and/or dealing with the suit property and/or disturbing the possession of the plaintiff and her family members of the suit property. It is further submitted that admittedly the Will is under operation and unless and until the authority, veracity and sanctity of the Will is challenged and set aside, one has to consider the Will. It is also further submitted that as the suit property was not mortgaged with the respondent No.1 Bank and though the decree was also passed against the other partners of M/s.Ahmedabad Motors also, the respondent No.1 Bank is deliberately not executing the decree against the other persons against whom the decree is passed, which shows that the bank has not approached the Court with clean hand. It is further submitted by Mr.Godiawala, learned advocate appearing on behalf of the appellant that it was specifically observed by the learned Chamber Judge that the legality and validity of the Will is not the subject matter of the suit, still the learned Chamber Judge has brushed aside the Will and not properly considered and/or appreciated AO/326/2007 7/14 JUDGMENT the right of the plaintiff in the suit property as one of the beneficiaries of the trust created under the aforesaid Will. It is submitted that without deliberation of the issue pertaining to the Will, the injunction application could not have been decided, as the trust is created through the Will and the suit property is the property of the Trust created under the aforesaid Will. It is submitted that merely because the the defendant No.2 has failed to point out real facts before the Board of Nominees and the order came to be passed, the same would not be the ground for the Chamber Judge for not considering the issue pertaining to the Will and the trust created under the Will. Submitting accordingly, it is requested to allow the present Appeal From Order by quashing and setting aside the order passed by the Chamber Judge by allowing the Notice of Motion. 7. The Appeal From Order is opposed by Mr.Clerk, learned advocate appearing on behalf of the respondent No.1 – Recovery Officer of the Bank. It is submitted that the story put forward by the plaintiff with respect to the Will of 1992 and creation of the Trust under the said Will and finding out the Will in the year 1992, are all got up story created by the plaintiff more particularly defendant AO/326/2007 8/14 JUDGMENT Nos.2 and 3 against whom decree has been passed and it is nothing but after thought. It is submitted that even the alleged date of finding out the Will is also required to be considered. It is submitted that even as per the plaintiff he came to know about the execution of the Will in the year 1998, still neither the defendant No.2 nor any other person has taken any steps till the decree came to be passed and only thereafter when the decree was sought to be executed against the defendant No.2 being one of the partner of M/s.Ahmedabad Motors, the aforesaid story has been created which is not believable at all. It is submitted that under the circumstances, the learned Chamber Judge has rightly dismissed the Notice of Motion. It is submitted that so far as the contention on behalf of the plaintiff that the decree is sought to be executed only against the defendant No.2, one of the partner and not against any other partner, is concerned, it is joint decree and all the partners are jointly and severally liable to satisfy the decree and it is for the decree holder to execute the decree against any of the defendants to realise the amount under the decree. It is submitted that even Bank is also to recover from other partners also. So far as the contention of the plaintiff that AO/326/2007 9/14 JUDGMENT as the property was not mortgaged with the Bank and therefore, there cannot be any attachment, it is submitted that when the decree is sought to be executed, the amount can be realised from the assets/movable property of the judgement debtor irrespective of the fact that whether the the same was mortgaged or not, more particularly in exercise of the powers under sec.159 of the Act, therefore, it is submitted that the notice issued by the Bank to recover the amount cannot be said to be illegal. Submitting accordingly it is requested to dismiss the present Appeal From Order. 8. Heard the learned advocates appearing on behalf of the respective parties. 9. At the outset, it is required to be noted that the respondent No.1 Bank had instituted Lavad Case No.1054 of 1999 against the defendant No.2 - Mukesh Shyamlal Shah who happens to be husband of the plaintiff and a decree came to be passed by the learned Board of Nominees on 16/6/2002 against the husband of the plaintiff with respect to dues of M/s.Ahmedabad Motors. The said decree has not been challenged by the plaintiff and/or her husband – defendant No.2. As AO/326/2007 10/14 JUDGMENT emerging from Ex.85, affidavit filed by the defendant No.2, originally the suit property belonged to his late father Shyamlal Harilal who died on 19/7/1979 and on his demise, mutation entry was mutated in the revenue record being Mutation Entry No.3660 dtd.30/10/1985 mutating the names of his mother Shobhnaben and himself. Subsequently, by mutation Entry No.4477 dtd.16/11/1995, the name of his two sisters were mutated in to the record of rights on the demise of his mother Shobhnaben on 25/6/1995. That thereafter vide Mutation Entry No.4429 dtd.1/2/1995 the names of his two sisters were deleted relinquishing their rights. It is the case on behalf of the plaintiff as well as the defendant No.2 that in the year 1998 only his uncle Ramakant resident of Mumbai, informed the defendant No.2 about two Wills executed by his late father and late mother, which his uncle had forgotten to inform and that on perusal of the of the aid Will it was found that his late mother had created family trust bequeathing the suit property only in the said trust and accordingly Mutation Entry No.4570 dtd.15/4/1999 was made in the record of rights as per the said Will. Now it is to be noted that Lavad Suit came to be filed against the defendant No.2 on 19/10/1999 and AO/326/2007 11/14 JUDGMENT inspite of the fact that it was a specific case of the plaintiff and the defendant No.2 that they came to know about the aforesaid Will in the year 1998, defendant No.2 in reply to the said Lavad Case No.1054 of 1999, has not mentioned the aforesaid facts of the Will executed by Shobhnaben and creation of the trust under the aforesaid Will with respect to the suit property. As rightly observed by the learned Chamber Judge, if the defendant No.2 had come to know about the said Will of his mother in 1998, under which the suit property was bequeathed to the family trust, he would have certainly mentioned the same in his reply in the aforesaid Lavad Case filed in October, 1999. Considering the same, it can be presumed that the issue of execution of the Will bequeathing the suit property to the family trust was not taken up before the learned Board of Nominees by the defendant No.2. Thus, it prima facie appears that the story put forth by the plaintiff and the defendant No.2 with respect to the Will executed by Shobhnaben in the year 1992, which was found by Ramakantbhai – uncle of the defendant No.2 in the year 1998 are prima facie appears to be after thought and the said story is prima facie not believable. As rightly observed by the learned Chamber Judge, the AO/326/2007 12/14 JUDGMENT suit has been field by the plaintiff in collusion with the defendant No.2, only with a view to defeat the payment of dues of Ahmedabad Peoples Co-operative Bank Limited. Therefore it cannot be said that the learned Chamber Judge has materially erred in dismissing the Notice of Motion. It cannot be disputed that relief under order 39 Rule 1 and 2 is a discretionary equitable relief and a party who seeks injunction under equitable relief has to approach the Court with clean hand and if the bonafides of such a party are doubted and there is some substance in the same, he is not entitled to the discretionary equitable relief. Considering the conduct of the plaintiff, defendant Nos.2 and 3 narrated hereinabove, plaintiff is not entitled to equitable relief of interim injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure. Under the circumstances, the order passed by the learned Chamber Judge refusing to grant injunction cannot be faulted with. 10.Now so far as the submission on behalf of the plaintiff that the suit property was not mortgaged with the Bank for securing the dues of M/s.Ahmedabad Motors, of which the defendant No.2 was one of the partners, and therefore, while recovering the dues under the decree, AO/326/2007 13/14 JUDGMENT the suit property cannot be attached, is concerned, sec.159 of the Act read with Rule 97 of the Rules empowers a decree holder to proceed against the immovable property belonging to the defaulter though the property is not mortgaged with the bank. It is also to be noted that so far as the defendant No.2 is concerned, he has neither challenged the decree nor the recovery notice and has not made any grievance. 11.Now, so far as the submission on behalf of the plaintiff that the Bank is not proceedings against the properties of other partners of M/s.Ahmedabad Motors and which shows mlafide intention on the part of the Bank is concerned, it is to be noted that the decree has been passed against the defendant No.2 as a partner of M/s.Ahmedabad Motors and the decree is passed jointly and severally and therefore, as such the Bank can proceed against the all or any of the partner of the firm against whom the decree is passed. It is also to be noted that the learned advocate appearing on behalf of the respondent No.1 Bank has also stated that it is not that the Bank does not want to proceed against the properties of the other partners of M/s.Ahmedabad Motors. Even otherwise, merely because the bank has proceeded AO/326/2007 14/14 JUDGMENT against some of the properties of one of the partners of the firm against whom the decree is passed and not proceeded against other partners of the firm, by ipso facto it cannot be said that the said action is illegal and/or malafide. Considering the above, it cannot be said that the learned Chamber Judge has committed any error in rejecting the Notice of Motion. 12.For the reasons stated above, there is no substance in the present Appeal From Order and the same deserves to be dismissed and is accordingly dismissed. In view of the dismissal of the main Appeal From Order, no orders in the Civil Application. [M.R. SHAH, J.] rafik