JUDGMENT :

1. Heard learned advocate Mr. Chirag B Patel for the petitioners and learned advocate Mr. Deshal Modi with learned advocate Mr. Nisarg Trivedi for the respondent nos. 3 and 4. Though served no one appeared for rest of the respondents.

2. Having regard to the controversy involved in this petition which is in a narrow compass, the petition is taken up for final hearing with the consent of learned advocates for both the sides.

3. Rule returnable forthwith. Learned advocate Mr. Deshal Modi waives service of notice of rule on behalf of respondent nos. 3 and 4. As no one has appeared pursuant to the notice issued by this Court, rule is not required to be served upon the other respondents, namely, respondent no.1-Board of Nominees, respondent no.2-Gujarat State Cooperative Tribunal and respondent no.5-Nimesh Pravinchandra Shah.

4. The petitioner bank has filed this petition under Articles 226 and 227 of the Constitution of India challenging the judgment and order dated 29.07.2019 passed by the Gujarat State Co-operative Tribunal (For short “the Tribunal”) in Appeal No. 68 of 2012 upholding the judgment and award dated 10.02.2012 passed in New Summary Lavad Case no. 547 of 2007 below Exh.52 by the Board of Nominees.

5. Brief facts of the case are that the petitioner no.1 bank advanced loan to purchase the computers under the Vajpayee Swarojgar Yojna amounting to Rs.90,000/- on 25.03.2000 to respondent no.5. Respondent nos. 3 and 4 stood as guarantor. The respondent no.5 committed default in payment of outstanding dues of the petitioner bank. The petitioner no.1-Bank therefore, instituted a Summary Lavad case no. 1029 of 2004 for the recovery of Rs. 1,07,410/- before the Board of Nominees.

6. The Board of Nominees, Vadodara by judgment and award dated 25.01.2005 allowed the Summary Lavad Case filed by the petitioner bank.

7. Respondent nos.3 and 4 filed a Review Application no. 38 of 2005 under Order IX Rule 13 of the Code of Civil Procedure, 1908 before the Board of Nominees to review the judgment and award dated 25.01.2005 on the ground that respondent nos. 3 and 4 were not served with notice of Lavad Case No.1029/2004.

8. The Board of Nominees by order dated 22.02.2007 allowed Review Application No.38/2005 and restored original Summary Lavad Case No.1029/2004 qua respondent nos. 3 and 4 only and ordered to proceed with the suit by giving new number. Accordingly, Lavad Case No. 1029/2004 was renumbered as Summary Lavad Case No.547/2007.

9. The Board of Nominees by judgment and award dated 10.02.2012 dismissed New Summary Lavad Case No.547/2007 qua respondent nos. 3 and 4 holding that respondent nos. 3 and 4 have proved that they are required to be exonerated from the liability of payment of outstanding dues of the petitioner bank. The Board of Nominees passed the award in favour of respondent nos.3 and 4 on the ground that respondent no.5 who availed the loan of Rs. 90,000/- to purchase the computer from the petitioner bank never purchased the computer and false documents were produced before the bank. It was also found that the petitioner bank did not take any action for execution of the hypothecation deed nor any attempt was made to recover the computer. It was therefore, found by the Board of Nominees that the petitioner bank has acted in such a way so as to cause prejudice to respondent nos.3 and 4 who stood as guarantors and due to such negligence, respondent nos.3 and 4 were held not liable for the outstanding dues of respondent no.5. The Board of Nominees permitted the petitioner bank to execute the award passed on 25.01.2005 against respondent no.5.

10. Being aggrieved by the judgment and award passed by the Board of Nominees dated 10.02.2012, the petitioner bank preferred Appeal No.628/2012 before the Tribunal. The Tribunal after considering the facts as well as the submissions made on behalf of the petitioner bank and respondent nos.3 and 4, confirmed the judgment and award dated 10.02.2012 passed by the Board of Nominees