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2013 Supreme(Guj) 246
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MR. BHASKAR BHATTACHARYA and J.B.PARDIWALA, JJ.
CHANDRAKANT SHANKERLAL SHAH THRO POA KANTIBHAI P.THAKKAR - Petitioner(s)
Versus
LIQUIDATOR ANAND PEOPLES COOPERATIVE BANK LTD - Respondent(s)
SPECIAL CIVIL APPLICATION NO. 3754 of 2013
With
SPECIAL CIVIL APPLICATION NO. 3756 of 2013
Decided On : 03/07/2013
MR MASOOM K SHAH, ADVOCATE for the Petitioner(s) No. 1
MS MOHINI K SHAH, ADVOCATE for the Petitioner(s) No. 1
Headnote:
Gujarat Cooperative Societies Act, 1961 - Sections 96, 102, 110 and 166 - Article 226 - Constitution of India - Petitioner, guarantor of respondent no.1 Bank, seeks to challenge order passed by the Gujarat State Cooperative Tribunal, in Misc. Application for condemnation of delay in filing an appeal against judgment and award passed by Board of Nominees in Arbitration Case, by which Tribunal refused to condone the delay and thereby rejected application -Held, When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ-petitioner, must plead and prove such facts by evidence which must appear from writ-petition and if he is the respondent, from the counter-affidavit. If facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. There is a distinction between a pleading under the Code of Civil Procedure and a writ-petition or a counter-affidavit. While in a pleading, that is, a plaint or a written-statement, the facts and not evidence are required to be pleaded, in writ-petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it, we direct the registry to place both the matters before the learned Single Judge, taking up the determination of matters - Petition dismissed.
(J.B.PARDIWALA)
1. As common questions of fact and law are involved in both the above captioned petitions, those were heard analogously and are being decided by this common judgment and order.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner, a guarantor of the respondent no.1 Bank, seeks to challenge the order dated 18th January 2013 passed by the Gujarat State Cooperative Tribunal, Ahmedabad, in Misc. Application No.82 of 2012 for condonation of delay in filing an appeal against the judgment and award passed by the Board of Nominees in Arbitration Case No.2393 of 2002, by which the Tribunal refused to condone the delay and thereby rejected the application.
3. The petitioner has also challenged the constitutional validity of Sections 96, 102, 110 and 166 of the Gujarat Cooperative Societies Act, 1961.
4. The case made out by the petitioner in this petition may be summarised as under :
5. The petitioner stood as a guarantor on behalf of the respondent nos.2 to 6 who availed of some financial facilities from the respondent no.1 Bank. The respondent no.2 is a partnership firm being the principal borrower and the respondent nos.3 to 6 are the partners of the said firm. The respondent no.7 is also one of the guarantors along with the petitioner.
6. As the original debtors failed to repay the amount of loan, the Bank filed a Lavad Case No.2393 of 2002 for recovery of Rs.1,21,39,529=00 against the debtors as well as the guarantors which include the petitioner.
7. The petitioner appeared before the Board of Nominees through a Power of Attorney as he is residing in the United States of America. It appears that the Board of Nominees allowed the suit filed by the Bank and passed an award for recovery of Rs.1,21,39,529=00 vide judgment and decree dated 31st August 2010.
8. Feeling dissatisfied with the judgment and award passed by the Board of Nominees, the petitioner herein, through his Power of Attorney, preferred an appeal under Section 102 of the Act of 1961 before the Gujarat State Cooperative Tribunal, Ahmedabad. As there was a delay in filing the appeal, an application for condonation of delay being Misc. Application No.82 of 2012 was also filed.
9. It appears that the Tribunal rejected the application for condonation of delay on the premise that the petitioner was not able to assign any sufficient cause as to why he was not able to file the appeal in time. The Tribunal also noted that before the Board of Nominees, the Power of Attorney of the petitioner had appeared and his advocate had also cross-examined one of the witnesses of the plaintiff Bank. Thereafter, none remained present before the Board of Nominees and the Court proceeded to pass the money decree. It also appears that the Tribunal rejected the argument of the petitioner that since he was residing in the United States of America he was not aware about the decree which was passed by the Board of Nominees. The Tribunal took the view, relying on a Division Bench decision of this High Court in the case of Suryakant Bhikhabhai Hakani v/s. Bombay Mercantile Cooperative Bank Limited and others, reported in 2012(2) GLH 170, that in view of the provisions of Rule 41(4)(b) of the Gujarat Cooperative Societies Rules, 1965, one of the modes of communication of the award is the pronouncement of the award by the Board of Nominees. The Tribunal took the view that since the petitioner was being represented by an advocate, the date on which the award was pronounced should be construed as the date of knowledge to the petitioner about the passing of the award by the Board of Nominees. Accordingly, the application for condonation of delay was rejected.
10. Feeling dissatisfied with the order passed by the Tribunal, the petitioner has come up with this petition.
Submissions on behalf of the Petitioner :
11. Mr.Vishwas Shah, the learned counsel appearing for the petitioner vehemently submitted that the Tribunal committed a serious error in
