SCA/17790/2005 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 17790 of 2005 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 ? ========================================================= DEESA NAGARIK SAHAKARI BANK LTD. - Petitioner(s) Versus DEESA MEDICAL AGENCY & 2 - Respondent(s) ========================================================= Appearance : MR PRAKASH K JANI for Petitioner(s) : 1, RULE SERVED for Respondent(s) : 1, MR ABHAYKUMAR P SHAH for Respondent(s) : 1, MR GUNVANT R THAKAR for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 11/12/2008 ORAL JUDGMENT 1. The petitioner, by this petition, has approached this Court for challenging the legality and SCA/17790/2005 2/8 JUDGMENT validity of the order dated 2.8.2005 passed by the Tribunal in Appeal No.430 of 2005, whereby the appeal is allowed so far as it relates to the defendant No.2 in the suit, who stood as the guarantor. 2. If the facts of the present case are examination, it appears that Lavad Suit No.633 of 2001 was filed by the petitioner Bank against the principal borrower, who is respondent No.1 as well as the guarantors, who are respondents No.2 and 3 herein. As per the petitioner Bank, summons were issued and respondents No.2 and 3 (hereafter referred to as the 'Guarantors' for the sake of convenience) appeared in response to the summons. The application for leave to defend was also submitted, below which, the learned Nominee passed the order for granting leave to defend on condition to deposit the amount of Rs.65,000/-. It appears that as per the petitioner, thereafter the condition for leave to defend was not complied with. The learned Nominee passed the judgement and award on 29.11.2003, whereby the suit was decreed with SCA/17790/2005 3/8 JUDGMENT the interest at the rate of 19% p.a. As per the guarantors, who are respondents No.2 and 3 herein, when the execution of the award was made, appeal was preferred before the Tribunal with the application for condonation of delay. The Tribunal condoned the delay and heard the appeal on merits. The Tribunal found that as the opportunity could not be availed of, it was a case for giving opportunity to the appellants before the Tribunal. Therefore, it has remanded the matter to the learned Nominee. The Tribunal also found that there was an issue to be considered for liability of the guarantors on the aspects as to whether they are discharged as the member or not. Further, while considering the case for remand, the Tribunal has taken into consideration the aspects of deposit of the amount and it is observed that as the High Court has directed to deposit of Rs.80,000/-, per person it would come to Rs.40,000/- each. As the appellants before the Tribunal had already deposited the amount, no further direction for deposit was ordered and the matter was remanded SCA/17790/2005 4/8 JUDGMENT to the learned Nominee for giving a fresh decision. So far as the appellant was concerned, it is under these circumstances, the petitioner Bank has approached this Court by the present petition. 3. Heard Mr.Jani, learned Counsel for the petitioner and Mr.Thakar, learned Counsel for the respondents No.2 and 3. 4. It was submitted by Mr.Jani, learned Counsel for the petitioner that the observations made by the Tribunal are contrary to the record and the Tribunal ought not to have exercised the discretion for remanding the matter to the learned Nominee. It was also submitted that the summons were duly served and thereafter the written statement was also filed with the application for leave to defend and as the condition was not complied with, the Nominee was justified in passing the award against the appellants before the Tribunal. The Tribunal has made certain observations, which may also prejudice the case of the petitioner Bank before the learned Nominee. It was lastly submitted SCA/17790/2005 5/8 JUDGMENT that Mr.Jani, learned Counsel that as on today, liability as per the ward would be approximately more than Rs.7,00,000/- and as against the same, the Tribunal has considered the deposit of Rs.80,000/-. Therefore, this Court may direct the respondents No.2 and 3 to deposit additional amount, even if this Court is not inclined to interfere with the order passed by the Tribunal. 5. It appears that as such it is within the jurisdiction of the appellate authority to remand the matter, if in a given case, it is found that opportunity has not been properly availed of by the party concerned. It also appears that the Tribunal has taken a view that because of the duty assigned for earth-quake, the original defendant No.3 could not remain present as the leave was not sanctioned. Under these circumstances, he was not aware of the order passed earlier in the application for leave to defend and, therefore, ultimately the discretion has been exercised for giving the opportunity to the appellant before the Tribunal and the Nominee has been directed to decide the SCA/17790/2005 6/8 JUDGMENT matter afresh. 6. Even if the contention of the learned Counsel for the petitioner is concerned for the same of examination that the summons were served and the written submission together with the application for leave to defend was filed, the fact remains that the appellant before the Tribunal could not lead any evidence in support of his case. Therefore, if the Tribunal has exercised discretion in such circumstances for giving opportunity to the parties to the proceedings, it cannot be said that the discretion is exercised in a perverse manner, nor can it be said that such exercise of the discretion would cause serious prejudice to the petitioner Bank. In any case, at the time when the learned Nominee is to decide the suit, all aspects may be required to be examined by the Nominee, including the aspects over which the observations have been made by the Tribunal and the petitioner - plaintiff will have opportunity to contend that the guarantors are not discharged, nor have they ceased to be the SCA/17790/2005 7/8 JUDGMENT members of the Bank. Therefore, it cannot be said that if some observations are made by the Tribunal while remanding the matter, the rights and contentions of the petitioner – plaintiff – Bank before the Nominee are foreclosed or that it would cause any prejudice for asserting the claim as made in the suit against the guarantors. It will be for the Nominee to permit the respective parties to lead evidence and thereafter to take independent view of the matter on the basis of the material, which may be available on record. Therefore, Mr.Jani is not right in contending that any prejudice will be caused to the Bank. 7. It also deserves to be recorded that before the learned Nominee there was no opportunity availed of by the guarantors for leading the evidence, which ultimately has been given by the Tribunal as per the impugned award. The condition for leave to defend as per the order passed by the Tribunal has been complied with. Thereafter, if the Tribunal has directed for reconsideration of the case, it would not be a case for this Court SCA/17790/2005 8/8 JUDGMENT to direct further deposit of the amount, since the ex parte award so far as it relates to the guarantors is set aside and the liability is yet to be established. Further, it may also result into sitting in appeal over the discretion exercised by the Tribunal under Article 227 of the Constitution of India, which is not called for considering the facts and circumstances of the case. Under these circumstances, the last submission made by Mr.Jani does not deserve to be accepted. 8. In view of the above, the petition is meritless. Hence, dismissed. No order as to costs. It would be open to the petitioner to move the learned Nominee for early trial and disposal of the suit. If such a request is made, the learned Nominee shall make an attempt to dispose of the suit as early as possible. 11.12.2008 (Jayant Patel, J.) vinod