( 1 ) RULE. Mr. Dave, Ld. AGP for respondent No. 1 and Mr. Tirmizi for respondent No. 2 appear and waive service of rule on behalf of respective respondents. With the consent of parties matter is taken up for final hearing today.

( 2 ) ). THE short facts of the case are that the respondent No. 2 has filed a Lavad Suit No. 1781/97 before the Registrar, Board of Nominees for recovery of Rs. 13,30,569. 70ps from the petitioner on the ground that the petitioner has misappropriated the said amount from the funds of the society and he is required to pay the same. In the said suit application for temporary injunction was submitted. The petitioner was served with the notice for temporary injunction and in response thereto the petitioner filed reply by way of objections and it is the case of the petitioner that in the reply the application for temporary injunction the petitioner had declared before the court that the plaint is not served upon him. The learned Nominee had initially granted exparte temporary injunction restraining the petitioner from transferring the property as mentioned in the order. Thereafter, there was bi-partitite order whereby the application for temporary injunction was allowed and the ad interim order was confirmed. The case of the petitioner is that thereafter since he was not served with the copy of the plaint no reply was filed by him or rather he could not file the reply and inspite of the same the learned Nominee proceeded exparte and passed the judgment and award dated 30. 3. 99 whereby the suit is decreed by directing the petitioner to pay the amount of Rs. 13,30,569. 70ps with interest at the rate of 12% p. a. from 16. 5. 97 and also to pay Rs. 5,000. 00 towards costs of litigation.

( 3 ) ). THE petitioner preferred Appeal No. 476/99 before the Gujarat State Cooperative Tribunal, Ahmedabad and in the appeal also the contention was raised on behalf of the petitioner that since copy of the plaint was not served and the learned Nominee also did not verify the said aspect and therefore the exparte judgment and award of the learned Nominee should be quashed and set aside. The tribunal, ultimately, passed the judgment and award dated 12. 3. 01 in appeal whereby the appeal is dismissed and the said order is under challenge in this petition.

( 4 ) ). THE Learned Counsel for the petitioner, Mr. Naik submitted that since the copy of the plaint was not served on the petitioner and since the petitioner had disclosed the said aspect in the reply to the interim application, it was obligatory on the part of the Ld. Nominee to verify the said aspect and then only to proceed exparte. He submitted that since the plaint was not served the petitioner could not be said to be legally compelled to submit the written statement and therefore the matter has proceeded exparte without verification of the basic requirement that the copy of the plaint should have been served upon the defendant and he submitted that the tribunal instead of remanding the matter has proceeded on the basis that even if the matter is remanded no change would be made and therefore Mr. Naik has submitted that the order passed by the tribunal as well as by the Nominee deserve to be quashed and set aside.

( 5 ) ). ON behalf of respondent-State Mr. Dave as well as Mr. Tirmizi on behalf of respondent No. 2 have supported the order. Mr. Tirmizi submitted that in case the court finds that on account of procedural lapse the matter should not have proceeded exparte and then also it is a case of misappropriation and since the awarded amount is a huge amount with interest the court may put the petitioner to reasonable condition directing the petitioner to deposit not less than 25% of the awarded amount as a condition precedent for re-trial of the suit and also cost.

( 6 ) ). CONSIDERING the above and a perusal of the order passed by the tribunal shows that the tribunal has proceeded on the basis that it was the duty of the petitioner to apply to the N