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1998 Supreme(Guj) 748

Gujarat High Court
Judgename :S.K.Keshote
RAJKOT NAGARIK SAHKARI BANK LIMITED - Appellant
Versus
BHAVESH CYCLE STORES,morvi - Respondent
C.R.A. 1233 of 1998
Decided On : 12/30/1998

Advocates Appeared: A.D.Mithani

Headnote:

Gujarat Co-operative Societies act, 1961 – Recovery of the loan amount – Petitioner is a co-operative bank duly registered under the provisions of the Gujarat Co-operative Societies act, 1961 – It is doing the banking business and provisions of the Banking Regulations Act are also applicable to its business – Petitioner co-operative bank is doing the banking business to advance various loans and finance assistance to its members who are also its shareholders – It is not in dispute that the respondents loanee/loanees is/are its members – Held, Merely filing of a decree for execution in a Court even if it has no jurisdiction to execute the same, is not a matter relating to the jurisdiction, but at the most, it may be an irregularity and only on this ground, otherwise also, the proceedings before it of the executing decree will not be termed as a nullity – This is a case where the award which has been passed by the Board of Nominees of the Registrar way back in the year 1992 has sufficiently been delayed – Substance of the matter has to be considered and if it is considered in that context, Court have no hesitation to say that the executing Court was not correct in its approach to raise any such technical objection suo motu, more so when if we go deep in the matter, it will not cause any injury and failure of justice to the judgment-debtor also in the facts of the case – Civil Revision Applications Allowed (Paras 31, 32, 33)

S. K. KESHOTE, J.

( 1 ) AS all these Civil Revision Applications have arisen from an identical order passed by the executing Court, Civil Judge (S. D.), Morvi in the Special Darkhast filed by the petitioners for execution of the decree, these civil Revision Applications are taken up for hearing together and are being disposed of by this common judgment.

( 2 ) THE facts of the case are taken from the Civil Revision Application No. 1233 of 1998. The petitioner-Rajkot Nagarik Sahkari Bank Ltd. , is a co-operative bank duly registered under the provisions of the Gujarat Co-operative Societies act, 1961 (hereinafter referred to as the Act, 1961 ). It is doing the banking business and the provisions of the Banking Regulations Act are also applicable to its business. The petitioner co-operative bank is doing the banking business to advance various loans and finance assistance to its members who are also its shareholders. It is not in dispute that the respondents loanee/loanees is/are its members.

( 3 ) THE petitioner filed an arbitration suit in the Court of the Board of registrars Nominees at Rajkot being Arbitration Suit No. 196 of 1992. This suit has been filed for the recovery of the loan amount with interest against the loanee and guarantors. In this arbitration suit, an award has been passed by the Registrars board of Nominees on 17-10-1992 and under that award, the petitioner-bank is entitled to principal amount of loan with interest. After receipt of the certificate from the Registrar of the Co-operative Societies as provided under Sec. 103 of the act, 1961, the petitioner for the execution of the award, a deemed decree filed special Execution Petition No. 29 of 1993 in the Court of the Civil Judge (S. D.), morvi. It is the case of the petitioner that in all these cases, except the few cases, i. e. , of the execution of the award, a deemed decree, the judgment-debtors therein have not raised any objections that the executing Court has no jurisdiction to execute the award, deemed decree, as the award, deemed decree has not been transferred to it by the Registrars Board of Nominee. The executing Court itself suo motu taken this objection and under the impugned order, it has decided that this deemed decree (award) has been made by the Registrars Board of Nominees at Rajkot and the same has not been transferred to it and unless it is transferred to it by the Court passing the same, it cannot be executed. Against this order, the bank has filed these Civil Revision Applications.

( 4 ) IN these Civil Revision Applications, in the Civil Revision Applications in which the Counsel have put appearance for the loanees, they have made a statement that they have no objection in case the Court at Morvi proceed with the execution of the award, deemed decree. But as it is a legal question and it may arise in other matters pending or are to be filed by this bank or other co-operative banks in the civil Courts, I consider it to be necessary and proper to decide this point in these Civil Revision Applications. The learned Counsel for the parties are also in agreement that otherwise also this point has not been decided by this Court so far, so as to avoid future litigation on this point, the same may be decided by this Court in these Civil Revision Applications.

( 5 ) LEARNED Counsel for the petitioners contended that the learned executing court has totally ignored the relevant provisions of the Act, 1961 and of the Civil procedure Code and passed the impugned order. The learned executing Court has not considered that the Registrars Board of Nominees exercises its powers not only for one district in respect of Lavad cases but even for more than one district. It is a special remedy provided under the Act, 1961 for adjudication and decision of the disputes between the co-operative societies and its members and to see that these matters are expeditiously disposed of, this special forum has been provided. The distinction is only that the dispute perta
































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