SCA/14900/2004 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14900 of 2004 With CIVIL APPLICATION No. 9244 of 2004 In CIVIL APPLICATION - FOR VACATING INTERIM RELIEF No. 9118 of 2004 With CIVIL APPLICATION No. 9118 of 2004 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 ? ========================================================= CHAROTAR NAGRIK SAHAKARI BANK LTD. THROU'LIQUIDATOR OR & 1 - Petitioner(s) Versus GUJARAT ESTATE DEVELOPERS PVT.LTD. & 6 - Respondent(s) ========================================================= Appearance : MR DHARMESH V SHAH for Petitioner(s) : 1, MR SB VAKIL for Respondent(s) : 1 - 3. MS ARCHANA R ACHARYA for Respondent(s) : 1 - 3. MR KUNJAL D PANDYA for Respondent(s) : 4 - 5. MR PRAKASH K JANI for Respondent(s) : 6, NOTICE SERVED BY DS for Respondent(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 30/01/2008 SCA/14900/2004 2/6 JUDGMENT ORAL JUDGMENT 1. The petitioner by this petition has prayed to call for the Record and Proceedings of Lavad Suit No.1109 of 2002 pending before the learned Nominee and it has been prayed that the declaration be made by this Court that the learned Nominee has no jurisdiction to entertain and pass the order below Application for interim injunction in the matter under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the “Act”). 2. Heard Mr.Shah, learned Counsel for the petitioner, Mr.S.B.Vakil, learned Sr. Counsel for respondents No.1, 2, and 3 and Mr.Jani, learned Counsel for respondent No.6. 3. Upon hearing the learned Counsel appearing for both the sides, it appears that at the time when the petition was entertained, Special Leave Petition against the judgement of the Bombay High Court in case of “Greater Bombay Coop. Bank Ltd. v. United Yarn Tex. Pvt. Ltd. & Ors.” was SCA/14900/2004 3/6 JUDGMENT pending. At the relevant point of time, as per the decision of the Bombay High Court, if the amount of recovery was exceeding a particular limit, the suit was to be filed before the Debts Recovery Tribunal and not before the Nominee under the Cooperative Societies Act. Thereafter, it appears that as per the decision of the Apex Court in the case of Greater Bombay Coop. Bank Ltd. v. United Yarn Tex. Pvt. Ltd. & Ors.”, reported in 2007(5) SCALE, 366 (AIR 2007 SC, 1584), the learned Nominee has the jurisdiction under the Cooperative Societies Act and not the Debts Recovery Tribunal under the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Therefore, as the position of law is settled by the Apex Court in the above referred decision, the question of entertaining the suit may not arise. 4. The learned Counsel appearing for the petitioner has additionally contended that the Nominee will have no jurisdiction to entertain the interim application Ex.95 to stay the proceedings under the Act and more particularly in view of Section SCA/14900/2004 4/6 JUDGMENT 34 of the Act and, therefore, he submitted that this Court may interfere. 5. It appears that the impugned order passed by the learned Nominee is an ex-parte order passed below Application Ex.95 and the show-cause notice has been issued. Pending the proceedings of the present petition, the suit came to be stayed. 6. Mr.Jani, learned Counsel for the Society stated that as per the statement made in the application, on the date when the ex-parte order was extended up to 17.11.2004, the suit came to be stayed by this Court and, therefore, as a consequence thereof, the proceedings will remain as it is. 7. In my view, the question of jurisdiction of the Nominee to entertain the application can also be considered by the Nominee while deciding the matter for confirmation of the ex-parte order or otherwise and up till now, as the matter is at the ex-parte stage, no interference is called for. 8. In view of the above, the present petition is SCA/14900/2004 5/6 JUDGMENT disposed of accordingly. However, the petitioner Bank shall be at liberty to move the learned Nominee for vacating the ex-parte order and the learned Nominee, after hearing both the sides, shall take appropriate decision below Application Ex.95 as early as possible, preferably within a period of three months from the date of receipt of the order of this Court. Since the suit was stayed by this Court, it would be open to the respondent(s) to move the learned Nominee for extension of the ex-parte stay within ten days from today. However, the learned Nominee shall decide the question of interim stay below Application Ex.95 independently without there being, in any manner, influenced by the time granted by this Court in the present order. 9. In view of the aforesaid order passed in the main Special Civil Application, the interim Civil Application Nos.9244 and 9118 of 2004 shall not survive and shall stand disposed of accordingly. SCA/14900/2004 6/6 JUDGMENT 30.1.2008 (Jayant Patel, J.) vinod