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2015 Supreme(Guj) 950
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
JAYANT PATEL and RAJESH H.SHUKLA, JJ.
NEEL OIL INDUSTRIES PARTNERSHIP FIRM & 4 - Petitioners
Versus
UNION OF INDIA & 1 - Respondents
SPECIAL CIVIL APPLICATION NO. 1012 of 2014 With SPECIAL CIVIL APPLICATION NO. 16125 of 2013 With SPECIAL CIVIL APPLICATION NO. 1330 of 2013 With SPECIAL CIVIL APPLICATION NO. 18678 of 2013 With SPECIAL CIVIL APPLICATION NO. 8231 of 2014 With SPECIAL CIVIL APPLICATION NO. 8234 of 2014 With SPECIAL CIVIL APPLICATION NO. 2931 of 2014 With SPECIAL CIVIL APPLICATION NO. 9107 of 2014 With SPECIAL CIVIL APPLICATION NO. 9575 of 2014 With SPECIAL CIVIL APPLICATION NO. 9909 of 2014
Decided on : 25/06/2015
SCA No.1012/14:
MR SHAKTI S JADEJA, ADVOCATE for the Petitioner(s)No.15
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 15
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for MR DEVANG VYAS, ASST. SOLICITOR GENERAL for the Respondent(s) No. 1
MR GM JOSHI, ADVOCATE for the Respondent(s) No. 2
SCA No.16125/13:
MR VISHWAS K SHAH, ADVOCATE for Petitioners No.12
MR BOMI H. SETHNA, ADVOCATE for Respondent No.2
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for Union of India
SCA No.1330/13:
MR NV GANDHI, ADVOCATE for Petitioner No.1
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for MR DEVANG
VYAS, ASST.SOLICITOR GENERAL for Respondent No.1
MR UMESH A TRIVEDI, ADVOCATE for Respondent No.2
SCA No. 18678/13:
MR VISHWAS K SHAH, ADVOCATE with MR VILAV K.BHATIA, ADVOCATE for Petitioners No.12
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for MR DEVANG VYAS,
ASST.SOLICITOR GENERAL for Respondent No.1
MR VISHWAS S. DAVE, ADVOCATE for Respondent No.2
SCA Nos.8231/14 & 8234/14:
MR NIRAD D BUCH, ADVOCATE for NANAVATI ADVOCATES of Petitioners
No.13
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for MR DEVANG VYAS,
ASST.SOLICITOR GENERAL for Respondent No.1
MR SN SOPARKAR, SENIOR ADVOCATE with MR AMAR BHATT, ADVOCATE for Respondent No.3
MR NANDISH CHUDGAR, ADVOCATE with MR KRUTIK PARIKH, ADVOCATE for NANAVATI ASSOCIATES for Respondent No.2
MR RAKESH R. PATEL, AGP for Respondent No.4
SCA No.2931/14:
MR VISHWAS K SHAH, ADVOCATE for Petitioner No.1
MR NANDISH CHUDGAR, ADVOCATE with MR KRUTIK PARIKH, ADVOCATE for NANAVATI ASSOCIATES for Respondent No.2
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for Union of India
SCA No.9107/14:
MR MASOOM K SHAH, ADVOCATE with MR URVESH GOR, ADVOCATE of
Petitioners No.13
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for MR DEVANG VYAS,
ASST.SOLICITOR GENERAL for Respondent No.1
MR NANDISH CHUDGAR, ADVOCATE with MR KRUTIK PARIKH, ADVOCATE for NANAVATI ASSOCIATES for Respondent No.2
MR RAKESH R. PATEL, AGP for Respondent No.45
SCA No.9575/14:
MR MASOOM K SHAH, ADVOCATE with MR URVESH GOR, ADVOCATE for
Petitioner No.1
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for UNION OF INDIA
MR RAKESH R. PATEL, AGP for Respondents No.35
SCA No.9909/14:
MR VISHWAS K SHAH, ADVOCATE for Petitioners No.111
MR GM JOSHI, ADVOCATE for Respondent No.2
MR PARTH H BHATT, CENTRAL GOVT. COUNSEL for UNION OF INDIA
MR RAKESH R. PATEL, AGP for Respondents No.34
IMPORTANT POINT
Remedy under RDDB Act is an independent remedy, whereas remedy provided under Securitisation Act is by way of supplementation.
Headnote:
Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -Section 2(c)(iv a) - Recovery of Debts Due To Banks And Financial Institutions Act, 1993 - Section 2(d)(vi) - Constitution of India, 1950 - Article 246 - Challenging the constitutional validity of the aforesaid both the provisions in capacity as the borrower of the concerned respondent Bank or the guarantor therein, as the case may be - As the said both the aspects are not of much relevance for the consideration of the present group of matters and more particularly for examining the constitutional validity of the respective statute - Held, Multi-State Co-operative Banks are established under Multi-State Co-operative Societies Act enacted by Parliament - Enacted under Entry 44 of List 1 of the Constitution of India - Parliament has competence to make amendment in the Securitization Act, which is also a Central Act as well as in RDDB Act, which is also a Central Act for including Multi State Cooperative Banks established under Multi State Cooperative Societies Act in the definition of the word, "Bank" under the Securitization and RDDB Acts by the amending Act - Parliament has not nullified the effect of Apex Court invoking of doctrine of incorporation is one thing, where as making the remedy available by express provision of a statute is another thing - All petitions disposed of.
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As in all the matters, common questions arise for consideration and there are more or less common challenges to be considered, they are being considered simultaneously.
2. In SCA No.1012/14, Mr. Majmudar, at the outset submitted that he is not pressing for the relief in para 33(A) for challenging the vires of the Act and therefore, the said aspect may not be required to be considered and he has restricted his case to the relief prayed for in para 33(B), which relates to challenging the amendment No.1 of 2013 brought by the legislature in section 2(c) after sub-clause (iv) inserting sub-clause (iva) “a Multi-State cooperative bank; or” of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the “Securitisation Act”) as ultra vires to the Constitution and ab initio null and void. The other prayers made in the petition are based on the principal prayer for challenging the constitutional validity of the Amendment No.1 of 2013.
3. SCA No.16125/13 has been preferred seeking very relief for challenging the constitutional validity of the amendment and the other reliefs prayed are by way of consequential reliefs based on the principal challenge to the constitutional validity of the aforesaid amendment.
4. In SCA No.1330/13, the challenge is to the notification dated 28.01.2003 of the Central Government whereby the cooperative banks were included in exercise of the power under section 2(c)(v) of the Securitisation Act by the Central Government. In the said petition, we may record that the learned counsel appearing for respondent no.2 Bank declared before the Court that the notification challenged by the petitioner is of 2003 and the action under the Securitisation Act was taken by the Bank based on the said notification and he fairly declared that in view of the decision of this Court in the case of Administrator, Shri Dhakdi Group Cooperative Cottonseed and Ors. Vs. Union of India & Ors. reported at 2013(3) GLR 2337, the respondent no.2 Bank will not pursue the proceedings taken under the Securitisation Act prior to the amendment made by Act No.1 of 2013. He submitted that by amendment in question, which is challenged in other connected petition, multi-State Cooperative Banks is included. Therefore, subject to the decision which may be taken by this Court for constitutional validity of the amending act, such decision would also be binding to the respondent no.2 Bank. Ultimately, the appropriate order may be passed at the conclusion of the present matters.
5. SCA No.18678/13 has been preferred for challenging the very provisions of section 2(1) (c) of (iva) of the Securitisation Act which has been brought about by the amending act. The other relief prayed are consequential relief based thereon.
6. SCA Nos.8231/14 and 8234/14 have been preferred for challenging the constitutional validity of section 2(1)(c) of the Securitisation Act and section 2(d)(vi) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993(hereinafter referred to as “RDDB Act”) being ultra vires to the constitution. It may be recorded that on the prayer made for challenging the guidelines dated 02.02.2005 issued by RBI for merger of cooperative banks, the learned counsel submitted that after the decision of this Court in the present group of matters on the constitutional validity of the aforesaid provisions of Securitisation Act as well as RDDB Act, if the petitioners are relegated to prefer separate petition for challenging RBI guidelines and for challenging the decision of merger, the petitioners would have no objection, but it was submitted that the protection which has been granted to the petitioners pending the petition be continued for some time so as to enable the petitioners to prefer separate petition.
7. SCA No.2931/14 has been preferred for challenging the very provisions of section 2(1)(c)(iva) of the Secu
