SCA/29290/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29290 of 2007 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 ? ========================================================= VIKASH COOPERATIVE BANK LTD UNDER LIQUIDATION - Petitioner(s) Versus FALGUNI BHARATKUMAR PAREKH (HUF) & 3 - Respondent(s) ========================================================= Appearance : MR UTPAL M PANCHAL for Petitioner(s) : 1, MR DC DAVE for Respondent(s) : 1 - 2. MR KANTILAL KAYASTHA for Respondent(s) : 1 - 2. GOVERNMENT PLEADER for Respondent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 20/02/2008 ORAL JUDGMENT 1. Rule. Mr. Dave learned Counsel waives service of SCA/29290/2007 2/5 JUDGMENT notice of rule for respondent No. 1 and 2, and Ms. Trusha Patel learned AGP appears and waives service of notice of rule for respondent No. 3 and 4. With the consent of the learned Counsel appearing for both the sides the matter is finally heard today. 2. The petitioner has preferred the petition for challenging the order dated 19.10.2006 passed by the Consumer Forum in Complaint No. 140 of 2006, as well as the order passed by the State Commission below application for condonation of delay. 3. Heard Mr. Panchal learned Counsel for the petitioner, Mr. Dave learned Counsel for the respondent No. 1 and 2, and Ms. Trusha Patel learned AGP for the respondent Nos. 3 and 4. 4. Upon hearing learned Counsel appearing for both the sides, it appears that the issue which arises for consideration in the present case is squarely covered by the decision of this Court (Coram: D.N. Patel,J.) in the case of Baroda Peoples Cooperative Bank Ltd (In Liquidation) v. Mukesh Shah (President of Trust) and others SCA/29290/2007 3/5 JUDGMENT dated 23.11.2005, copy whereof is produced at Annexure F, in the present compilation and therefore, as such in view of the reasons recorded by this Court in the above referred decision, the impugned order passed by the Consumer Forum will be required to be quashed and set aside. 5. However, Mr. Dave appearing for respondent No. 1 and 2 submitted that even if the order of the Consumer Forum is quashed and set aside on the ground that no permission was obtained of the District Registrar, as per the above referred decision of this Court, the petitioner would be entitled to have the consideration of his claim of Rs. 25,000/- with the interest by liquidator, and would also be entitled to proportionate payment, as and when so ordered by RBI or disbursement thereof is permitted in accordance with law. 6. Mr. Panchal learned Counsel for the petitioner submitted that as per his information, one of the director has already encashed FDR, which is not in any case admitted by the respondent Nos. SCA/29290/2007 4/5 JUDGMENT 1 and 2. 7. Under these circumstances, even if the order of the Consumer Forum is set aside on the ground that same was without jurisdiction in absence of any permission of the Registrar, as per the above referred decision of this Court, the liquidator of the petitioner Bank will be required to be considered the claim, as per the procedure under Section 110 (h) of the Gujarat Cooperative Societies Act (hereinafter referred to as the “Act”), and the final decision shall be required to be taken by him after giving opportunity of hearing to the petitioner, as well as to the other concerned party. Hence, in any case by his one sided action of liquidator, he cannot say that claim is inadmissible. 8. In view of the above, the following order: 1. The order of the Consumer Forum and its confirmation thereof by the State Commission, which are impugned in this petition are quashed and set aside, in view of the above referred decision of this Court in case of Baroda Peoples Cooperative Bank Ltd (supra). SCA/29290/2007 5/5 JUDGMENT 2. The Liquidator shall consider the claim of respondent No. 1 and 2 on the basis of the FDR, and the record produced before the Consumer Forum, and after following the procedure as required under Section 110 (h) of the Act, and after giving opportunity of hearing to all concerned including respondent No. 1 and 2 herein, shall take appropriate decision and shall consider the claim for disbursement appropriately within a period of three months from the receipt of the order, in the event claim is found admissible. It is also clarified that if respondent Nos. 1 and 2, are aggrieved by any decision of the liquidator under Section 110 (h) of the Act, they may have the remedy as permissible under law. 9. Petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to cost. (JAYANT PATEL,J.) Suresh*