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2011 Supreme(Guj) 773
IN THE HIGH COURT OF GUJARAT
R. M. Chhaya, J.
Ahmedabad Mahila Nagrik Sahakari Bank Ltd (In Liquidation) - Petitioner
Versus
Gujarat State Co-Operative Tribunal and others - Respondents
Special Civil Application No. 14147 of 2011
Decided On : 27-12-2011
For the Petitioner:Sunit Shah with N. V. Gandhi, Advocates
For the Respondent:Amit Panchal with Shivani Rajpurohit, Advocates, Mehul S. Shah, Advocate
Headnote:
Gujarat Co-operative Societies Act, 1961 - Section 151 - By way of this petition under Article 227 of the Constitution of India, the petitioner Bank has challenged the legality and validity of the order passed by respondent No.1 Tribunal passed in Review Application - Power of review was exercised for upsetting a finding given by the Tribunal in its earlier order - Earlier Bench of the Tribunal had considered the matter on merits and a final view had been expressed - Same could not be upset or reversed by another Bench of the Tribunal while exercising its powers under Section 151 of the Act - Appeal - Held, Court finds that the exercise of powers under Section 151 in the instant case are beyond the scope and ambit of Section 151 of the Act and order impugned passed in Review Application quashed and set aside - Thus, the Tribunal while exercising the powers under Section 151 of the Act cannot sit in an appeal over its own judgment - The contention of respondent No.4 that the original documents are with respondent No.2 is not even pleaded in the Review Application and considering the facts of this case, that would not ipso facto give power of review to the Tribunal - Tribunal while exercising the powers under Section 151 of the Act cannot sit in an appeal over its own judgment - Misreading, misinterpretation or non-consideration of fact or evidence already on record at time of decision cannot be a ground for review - Order by Tribunal could not be sustained and Set aside - Petition allowed.
JUDGMENT :
R.M. Chhaya, J.
By way of this petition under Article 227 of the Constitution of India, the petitioner Bank has challenged the legality and validity of the order passed by respondent No.1 Tribunal dated 29.7.2011 passed in Review Application No. 52 of 2009.
2. The facts arising out of the petition can be summarised as under :
3. The petitioner, a Cooperative Bank (now in liquidation) registered under the provisions of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as “the Act”), had given various financial assistance to one Minaxi Enterprise to the tune of Rs.20 lacs and Rs.25 lacs towards term loan. It transpires from the record that respondent No.3 created a mortgage in favour of Bank by deposit of title deeds of the mortgaged property and also gave a personal guarantee for the said loan.
4. It is an admitted position that the original borrower committed default in payment for which the petitioner Bank filed a suit being Lavad Case No.457 of 2001 before the Board of Nominees at Ahmedabad under Section 96 of the Act to recover the outstanding amount from the borrowers and guarantors including respondent No.3 herein. The Board of Nominees, Ahmedabad vide its judgment and award dated 6.1.2003 passed decree in favour of the petitioner Bank to the tune of Rs.90,95,448/- with interest at the rate of 23% per annum and also awarded cost of Rs.3,000/-. However, the Board of Nominees came to the conclusion that the original defendant No.5 and the present respondent No.3 – original defendant No.6 were discharged from the said loan account.
5. The petitioner Bank, being aggrieved by the said order of discharge of original defendant Nos.5 and 6, filed an appeal before the Gujarat State Cooperative Tribunal being Appeal No.497 of 2003. The Tribunal vide its judgment and order dated 30.6.2009 was pleased to allow the appeal and modified the judgment and award of the Board of Nominees dated 6.1.2003 and hold that original defendant Nos.5 and 6 were jointly liable with original defendant Nos.1 and 4 and also granted injunction against respondent No.3 herein restraining her from dealing with the mortgaged property till the recovery of the award amount.
6. Thereafter, original defendant No.6 – respondent No.3 herein preferred a Review Application before the Tribunal which came to be registered as Review Application No.52 of 2009. The Tribunal vide order dated 29.7.2011 was pleased to review its earlier judgment and order dated 30.6.2009 and confirmed the judgment and award passed by the Board of Nominees in Lavad Case No.457 of 2001 dated 6.1.2003. The said order passed in Review Application No.52 of 2009 dated 29.7.2011 is impugned in the present petition under Article 227 of the Constitution of India.
7. Heard Mr. Sunit Shah, learned counsel with Mr. N.V. Gandhi for the petitioner, Mr. Amit Panchal, learned counsel with Ms. Shivani Rajpurohit for respondent No.3 and Mr. Mehul Shah, learned counsel for respondent No. 4.
8. Mr. Sunit Shah, learned counsel for the petitioner has taken this Court through the first order passed by the Board of Nominees dated 6.1.2003, the order passed in Appeal No.497 of 2003 by the Gujarat Cooperative Tribunal dated 30.6.2009 and has also taken me through the order impugned passed in Review Application No.52 of 2009 dated 29.7.2011 by the Tribunal. Mr. Shah has also taken me extensively through the documents relied upon by the petitioner in the present petition.
9. Mr. Sunit Shah vehemently submitted that the order impugned in the present petition lacks jurisdiction, inasmuch as, that the power of review as contemplated under Section 151 of the Act are akin to power of review of a Civil Court as provided under Order 47 Rule 1 of the Code of Civil Procedure. Mr. Sunit Shah has further submitted that none of the grounds raised in the review application would fall under the scope and ambit of Section 151 read with Order 47 Rule 1 of the Code of Civil Procedure. Mr. Sunit Shah submitted that t
