BRANCH MANAGER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner-original plaintiff for declaring the order dated 20-12-2002 passed below Ex.1 in Civil Suit No.4889 of 1998 by the learned Principal Judge, City Civil Court, Ahmedabad, as illegal, unconstitutional and void.

(2.) FACTS in short are that on 11-12-1986, the respondent No.2(original defendant No.2), who was serving as Assistant Manager with the petitioner, requested for a loan of Rs.1,25,000/- for buying ready built house and carrying out additional work. Accordingly, said amount was sanctioned on 10-3-1986 by mortgaging the house as security by way of Deposit of Title Deeds. The respondent No.2 thereafter left Ahmedabad handing over physical possession of the aforesaid premises to the respondent No.3. As it appeared to the petitioner-plaintiff that the respondent No.2 committed a breach of agreement, a suit being Civil Suit No.4998 of 1998 was filed by the petitioner-original plaintiff before the City Civil Court, Ahmedabad, for recovery of its dues to the extent of Rs.1,86,073/- along with an injunction application on 25-9-1998. Learned City Civil Judge granted ad-interim injunction against the respondent Nos.2 and 3, who are original defendant Nos.1 and 2. Later on, in an Application For Attachment Before Judgment under Order 38, Rule (1) and (5) of the Code of Civil Procedure moved by the petitioner on 6-11-2000, which is pending for hearing. In the meanwhile, in view of amendment made in the Presidency Small Causes Court Act, 1882 known as Presidency Small Causes Courts (Gujarat Amendment) Act, 2002, published in Government Gazette, Extraordinary, Part-IV, dated 5-6-2002, raising the pecuniary jurisdiction of the Small Causes Court for the City of Ahmedabad from Rs.5,000/- to Rs.2,00,000/- which came into effect from 2-9-2002, as per the Government Notification dated 30-8-2002, the learned Principal Judge, City Civil Court, Ahmedabad, ordered transfer of the said suit from City Civil Court to Small Causes Court, Ahmedabad, vide order dated 20-12-2002. The petitioner thereafter moved an application Ex.49 on 11-9-2003 under Order 38 Rule 13 against transfer of the suit and the matter was placed before another Judge. However, it was ordered that as order was already passed on 20-12-2002 transferring the suit, matter cannot be heard again. Accordingly, matter was transferred before the Small Causes Court where it was numbered as Summary Suit No.8030 of 2003. There, an application was given by learned advocate for the petitioner on 23-9-2003 for urgent hearing. However, application which was moved under Order 38 Rule (5) and pending for hearing before the City Civil Court, Ahmedabad, was dismissed by the learned Chamber Judge of Small Causes Court on 20-11-2003. The matter was thereafter transferred to Court No.14, Small Causes Court for further proceedings. Being aggrieved therewith, present petition has been preferred by the petitioner-original plaintiff.

(3.) MR .Abhijit Joshi submitted that present petitioner-original plaintiff Syndicate Bank has filed the suit for recovery of amount which is advanced as loan to the respondent-original defendant No.2. It also submitted an application for attachment of property which was mortgaged with the bank, however, as per Government Notification dated 30-8-2002 raising the pecuniary jurisdiction of the Small Causes Court for the City of Ahmedabad from Rs.5,000/- to Rs.2,00,000/- which came into effect from 2-9-2002, the learned Principal Judge, City Civil Court, Ahmedabad, ordered transfer of the said suit from City Civil Court to Small Causes Court, Ahmedabad, as the relief sought was for recovery of amount less than Rs.2,00,000/-. According to him, as per Order XXXVIII Rule 13 of CPC, Small Causes Court has no jurisdiction to decide the question of attachment of immovable property. It is therefore prayed that the order passed by the learned Principal Judge, City Civil Court, Ahmedabad, may be quashed and set aside. He does not press prayer 10(k).