SHANKARBHAI CHHOTIYABHAI GAMIT Vs. BANAKULAL GOKULDAS SHAH

JUDGEMENT

(1.) I have heard the parties regarding interim relief.lt is an admitted fact after contest, the Board of Nominee passed an award on March 26,1990 and directed the respondent to pay an amount of Rs. 4,41,471/00 ps. with 18% interest from the date of the suit. It is also an admitted fact that an appeal was filed by the respondent against that award which was compromised before the Gujarat State Co-operative Tribunal. The decision of the Tribunal is on record at Annexure-C. Looking to that order, it clearly appears that the present respondent admitted his liability to the tune of Rs. 4,41,471/00 ps. The Tribunal/therefore, held that the petitioner-Bank is entitled to Rs. 4,41,471/00 ps. the amount for which an award was passed by the Board of Nominee. The Tribunal, however, modified the award and held that the respondent was liable to pay interest at the rate of 15% instead of 18% as directed by the Board of Nominee. It also held that such interest was required to be paid on the principal amount (Rs.3,00,000/-) and not on the decretal amount (Rs. 4,41,471/-). The mode of payment was also prescribed by the Tribunal. It is undisputed fact that being aggrieved by the order passed by the Tribunal, the respondent approached this court by filing Special Civil Application No, 2811 of 1991 which came up before S.D. Shah, J and my learned brother disposed of the said petition by on order dt. 6th May 1992. Paras 5 and 6 of the said order read as under,

(2.) It appears that the respondent then filed a Lavad Case No. 1189 of 1993, inter alia, contending that the petitioner-Bank was not entitled to get interest and there was no corresponding liability on the present respondent to pay interest. Hence, that amount could not have been claimed by the Bank. It was also disputed that surcharge which was sought to be collected from the respondent was also contrary to law and could not be collected. In that Lavad Case, the Board of Nominee without issuing notice to the petitioner-Bank and without affording opportunity of hearing, granted ex-pane ad-interim injunction restraining the petitioner-Bank from implementing and executing award passed by the Board of Nominee on merits and confirmed and modified by the Tribunal with the consent of parties and also confirmed by this court. A condition was imposed by the Board of Nominee that the respondent-plaintiff had to pay an amount of Rs. 7000/- on or before July 27, 1993. It is this order which is challenged in the present petition. I am really surprised to note that according to the learned counsel for the respondent, at the time when the order was passed by the Board of Nominee, his attention was drawn to the order passed by this court, and in spite of that order and undertaking filed by the present respondent in this court, the Board of Nominee granted ad-interim relief and directed the respondent to pay an amount of Rs. 7,000/-. No doubt, subsequently, that order was modified and the amount was raised from Rs. 7,000/- to Rs. 10,000/-. The fact, however, remains that initially in spite of the order passed by this court, ad-interim relief was granted by the Board of Nominee directing the respondent to pay an amount of Rs. 7,000/- only. I am constrained to observe that the Board of Nominee ought not to have granted relief in view of the order passed by this court in Special Civil Application No. 2811 of 1991, and that too, ex-parte without issuing notice to the petitioner and without affording opportunity of hearing to the Bank.

(3.) The learned counsel for the respondent contended that so far as interest is concerned, it could not have been recovered from him and to that extent, the order passed by the Board of Nominee, Tribunal as well as by this court is unlawful aad without jurisdiction. Similarly, no surcharge could have been levied. In my opinion, the Board of Nominee could not and should not have granted interim order in view of the fact that the order passed by the Board of Nominee was confirmed by the Tribunal as well as by this court. Even if there is subsequent development or some letters on which reliance is placed, said to have been written in 1983 or 1985 which could have some bearing, unless and until a finding is arrived at, no interim relief can be granted on that basis. It amounts to ignoring the order passed by this court.