Gujarat High Court
Hasmukhbhai Narshidas Kakkad vs Recovery Officer on 25 March, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/31/2026 CAV JUDGMENT DATED: 25/03/2026
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Reserved On : 19/01/2026
Pronounced On : 25/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 31 of 2026
In
R/SPECIAL CIVIL APPLICATION/20018/2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 31 of 2026
With
R/LETTERS PATENT APPEAL NO. 32 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 19792 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 32 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 19792 of 2021
With
R/LETTERS PATENT APPEAL NO. 33 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 2430 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 33 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 2430 of 2022
With
R/LETTERS PATENT APPEAL NO. 34 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 2431 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 34 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 2431 of 2022
With
R/LETTERS PATENT APPEAL NO. 1111 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 20034 of 2019
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With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 1111 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 20034 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
=============================================
Approved for Reporting Yes No

=============================================
HASMUKHBHAI NARSHIDAS KAKKAD
Versus
RECOVERY OFFICER & ANR.
=============================================
Appearance:
MR RS SANJANWALA, SR. ADVOCATE WITH MS SANGEETA
PAHWA FOR THAKKAR AND PAHWA ADVOCATES(1357) for the
Appellant(s) No. 1
MR SN SOPARKAR, SR ADVOCATE WITH MR RC KAKKAD(389)
for the Respondent(s) No. 1,2
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. These intra court appeals are directed against common
judgment and order dated 10.07.2025 passed by the writ
Court dismissing the writ petitions filed with the two set
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of prayers, as follows:-
(Prayers in Special Civil Application Nos.
20018/2019, 20034/2019 & 19792/2021)“A) YOUR LORDSHIPS may be pleased to issue
appropriate writ, order or direction, quashing and
setting aside the impugned notice dated
29.10.2019 (Annexure-A) and all
consequential actions in pursuance thereto, as
being illegal, arbitrary and violative of Art. 14 of
the Constitution of India;
(B) YOUR LORDSHIPS may be pleased to stay the
implementation, operation and execution of the
impugned notice dated 29.10.2019 (Annexure-A)
and all consequential actions in pursuance thereto,
pending the admission, hearing and final disposal
of this appeal;”
(Prayers in Special Civil Application Nos.
2431/2022 and 2431/2022)(A) YOUR LORDSHIPS may be pleased to issue
appropriate writ, order or direction, quashing and
setting aside the impugned notice dated 18.1.2022
issued to all the petitioners as well as the public
notice dated 18.1.2022 published in Newspaper
(Annexure-A Colly) and all consequential actions in
pursuance thereto, as being illegal, arbitrary and
violative of Art. 14 of the Constitution of India;
(B) YOUR LORDSHIPS may be pleased to stay the
implementation, operation and execution of the
impugned notice dated 18.1.2022 issued to all the
petitioners as well as public notice dated 18.1.2022
published in Newspaper (Annexure-A Colly),
pending the admission, hearing and final disposal
of this appeal;”
2. The facts leading to the filing of the above set of writ
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petitions arising from the common occurrence, noted
from the leading petition, i.e. Special Civil Application
No. 20018 of 2019, as recorded in the judgment
impugned are :-
(a) The father of the petitioners herein and their
brother as also their partnership firm, namely M/s.
Narshidas Gordhandas Kakkad (hereinafter
referred to as the “borrowers”), borrowed a sum of
Rs. 2,00,000/- and Rs. 4,00,000/- with 21% of
simple interest as mortgage loans on 24.12.1999
and 25.02.2000; respectively, from the respondent
no. 2 Bank, namely the Porbandar Vibhagiya
Nagrik Sahakari Bank Limited.
(b) The borrowers defaulted in payment of instalments,
and as such, the respondent Bank filed Lavad Case
Nos. 53 and 54 of 2001 before the Board of
Nominees which proceedings culminated into an
award dated 13.06.2003 passed in favour of the
respondent bank aggregating to Rs.6,71,252/-
(Rs.4,52,937/- and Rs.2,18,315/-) against two loan
accounts with simple interest @ 21% leviable with
effect from 01.01.2001.
(c) Aggrieved by the award, the original petitioners
herein filed Appeal Nos. 1012 and 1013 of 2003
before the Gujarat State Cooperative Tribunal,
Ahmedabad, under Section 102 of the Gujarat
Cooperative Societies Act, 1961 (hereinafter
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referred to as the “Act’ 1961”) which were
dismissed by order dated 31.08.2004, which had
not been challenged further and, thus, has attained
finality.
(d) Pursuant to the award, the Bank had attached the
mortgaged property on 17.11.2003, and an amount
of Rs.15,30,000/- was recovered as a result of
auction of the said property, held on 09.05.2009.
However, further amount of Rs. 10,18,000/-
remained due to be recovered from the borrowers
as an entire outstanding loan was not satisfied.
(e) The Respondent Bank had further issued
attachment notice dated 17.09.2012, seeking
recovery of the remaining due loan amount, which
was challenged by filing two Revision Applications
No.208 and 209 of 2009 before the Joint Secretary
(Appeals), Agriculture and Cooperation
Department.
(f) During the pendency of the said revision
applications two Writ petitions being Special Civil
Application Nos. 14847 of 2012 and 14947 of 2012
were preferred by the partnership firm (borrower)
against which the award dated 13.06.2003 was
passed.
(g) On a request to consider for grant of one time
settlement pursuant to the scheme of the State
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known as “One Time Settlement Scheme” dated
18.09.2012, an interim order dated 30.10.2012 was
passed by this Court therein directing the
respondent Bank not to take any coercive measures
against the petitioners.
(h) Ultimately, by judgment and order dated
28.03.2013, the said writ petitions came to be
dismissed, leaving it open for the respondent Bank
to realize the amount which remained
unchallenged with the observations that the
petitioner therein would have no right whatsoever
to resurrect the loan amount and ask for one time
settlement. However, it was further directed by
this Court that since the revision applications were
pending, the revisional authority shall decide the
same.
(i) By way of an order dated 16.04.2013, the revisional
authority, namely the Joint Secretary (Appeals) had
quashed the Attachment Notice dated 17.09.2012
on technicality, leaving it open for the respondent
Bank to initiate fresh recovery proceedings as per
the rules and regulations.
(j) Subsequent to the disposal of the Revision
Applications, the petitioner preferred Letters
Patent appeals challenging the judgment and order
dated 28.02.2013 of dismissal of the aforesaid writ
petitions. Initially an interim order dated
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16.07.2013 was passed and, however, appeals were
finally disposed of by judgment and order dated
29.09.2016, without interfering with the decision of
the writ court, leaving it open for the petitioners to
raise all objections regarding penal interest before
the appropriate authority as and when fresh
recovery proceedings were initiated.
(k) Thereafter, the respondent Bank issued a fresh
Attachment Notice dated 02.01.2017, which was
further challenged before this Court in Special Civil
Application Nos. 493 of 2017 and 503 of 2017.
Again, an interim order dated 13.01.2017 was
passed restraining the respondent bank from
proceeding with the said attachment notice.
(l) The respondent Bank, however, made a statement
before this Court that the attachment notice dated
02.01.2017 being composite notice, they will not
proceed with the same and will issue fresh notices
for realization of the amount against respective
decrees.
(m) Fresh notices dated 29.10.2019, thereafter were
issued with reference to two loan accounts. For
Loan Account No.1, the petitioners-successors
were asked to pay an amount of Rs. 76,87,852.14,
which was subjected to challenge in Special Civil
Application No. 20018 of 2019.
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(n) With regard to the second notice of the even date
for the Loan Account No. 7, the recovery notice for
an amount of Rs. 79,54,310.99 was subjected to
challenge in Special Civil Application No. 20034 of
2019.
(o) The other three writ petitions being Special Civil
Application No. 19792 of 2021, Special Civil
Application No. 2430 of 2022 and Special Civil
Application No. 2431 of 2022 are pertaining to a
second attachment notice dated 18.01.2022.
(p) It is recorded by the writ court in the judgment
impugned that the petitioners in the aforesaid set
of writ petitions are heirs and legal representatives
of the original borrowers, namely Tulsidas Narsidas
Kakkad and Haridas Narsidas Kakkad. It was the
case of the petitioners before the writ court that
both the decrees/awards for recovery of the
outstanding loan amount had become final in the
year 2004 with the dismissal of the appeals of the
borrowers filed before the Gujarat State
Cooperative Tribunal, however, the recovery
notices were issued in the year 2012 for the first
time and moreover, the self-acquired properties of
the heirs of the original borrower are sought to be
attached pursuant to the recovery notices. The
attachment notices issued in the year 2012 are
legally barred by limitation.
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(q) The further contention was that the Secretary,
Gujarat State Urban Co-operative Bank Federation
Limited, the Apex Society, which has been
conferred with the powers of the Registrar under
Section 159 of the Act, 1961 by the notification of
the State Government dated 07.10.2002 under
section 162(b) of the Act, had sub-delegated his
powers to the ‘recovery officer’, namely the
respondent No. 2 therein, who happened to be an
officer/employee of the respondent bank.
(r) It was contended that the provisions of section 162
(b) or the Notification of the State did not entrust
the Secretary, Gujarat State Urban Co-operative
Bank Federation Limited (in short as
“GSUCBFL/Federal Society”) to sub-delegate the
power of recovery to anyone else. It was only the
Secretary of the said Federal Society who could
have exercised the powers of the Registrar as
enumerated under Section 159 of the Act 1961.
Once the Federal Society was substituted for the
Registrar and entrusted with its power under
section 159 of the Act 1961, the Secretary of the
Federal Society has no power to delegate its
authority to anyone except its own employee,
subordinate to the Secretary.
(s) The third submission was with regard to the
calculation of penal interest.
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(t) The learned Single judge has returned the findings
on the issue of sub-delegation/jurisdiction of the
Federal authority in paragraphs ’16’ and ’17’, as
under :-
“16. Now, resorting to the merits of the
matter, the first controversy raised is with
regard to the jurisdiction of the officer
authoring the impugned attachment notice.
The notice was issued by the respondent
having been conferred the powers by the
Notification dated 07.10.2002 and under
provisions of Section 162(b) of the Act. The
powers of the Registrar are delegated under
the Act. By way of Notification dated
07.10.2002 the delegation was given to three
societies. One of them being Gujarat State
Urban Co-operative Bank Federation Limited.
In furtherance to the delegation, the Gujarat
State Urban Co-operative Bank Federation
Limited has appointed respondent no. 2 as
delegetee. The core question raised alleging
that concerned officer is not employee or
officer of the Gujarat State Urban Co-
operative Bank Federation Limited, but he is
the employee of another Bank. Therefore, it
amounts to subdelegation and therefore, the
jurisdiction of the person issuing the
attachment is doubted. Therefore, the main
contention is that recognized society i.e.
Gujarat State Urban Co-operative Bank
Federation Limited instead of exercising its
power through its officer have appointed
another officer of subordinate cooperative
society for the purpose of recovery of the
awarded dues and therefore, it amounts to
sub-delegation of the powers.
17. The first aspect concerning the contention
raised by learned advocate Ms. Pahwa is that
the notification of the delegation of powers isPage 10 of 45
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not under challenge. Therefore, the only issue
that has to be seen is whether the powers
vested with the Registrar are exercised in
proper manner. Once the phrase Registrar
has been substituted by delegated authority,
namely the Gujarat State Urban Co-operative
Bank then the powers are to be exercised by
the said Bank. It is not correct for learned
advocate Ms. Pahwa to contend that the
powers of the Urban Co-operative Bank are to
be exercised only by the employee of the said
Bank. The said Bank has appointed
respondent no. 2 to execute the powers of
conferred upon by the Bank. Therefore there
is no substance in the contention raised by
learned advocate Ms. Pahwa that the powers
are exercised by the officer without
jurisdiction. Once the challenge to
Notification dated 07.10.2002 is not disputed
then the challenge to power executed by the
Gujarat State Urban Co-operative Bank
Federation Limited cannot be doubted. The
decision relied upon by learned advocate Ms.
Pahwa challenging the jurisdiction
fundamentally revolve around the challenge
to Notification dated 07.10.2002. In the
instant case, the notification is not under
challenge. For the reasons mentioned herein-
above the challenge to power executed by the
respondent no. 2 is untenable is required to
negatived. The judgments relied upon by the
petitioner would not be of any help as they
would be different from the facts of the
present case. In the decision in case of A. K.
Roy (supra) and in case of Sahani Silk Mills
(P) Ltd. (supra), the reasoning centers on the
interpretation of the statutory provisions
which permits to delegate the powers.
Applying the maxim “delegatus non potest
delegare”, the Court has concluded that sub-
delegation without statutory authorization is
impermissible. In the instant case, there is
statutory force conferred to Notification dated
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07.10.2002 under the provisions of Section
162(b) of the Act. The Notification dated
07.10.2022 is not under challenge. The
statutory authority and the powers conferred
by Notification dated 07.10.2002 are not
under challenge and therefore, the decisions
relied upon by learned advocate Ms. Pahwa
would not be of any help to the case of the
petitioner.”
(u) On the issue of limitation, the findings are in
paragraphs ‘17.1’ and ’18’, which read as under:-
“17.1. The second issue raised by learned
advocate Ms. Pahwa is with regard to notice
being barred by limitation. As per the facts of
the case, the original award was passed on
13.06.2003 and appeal against the award was
dismissed on 31.08.2004. It is the case of the
petitioners that the execution proceedings
against all the six judgment debtors
commenced on 17.09.2012 and the impugned
notice is issued in the year 2019 which is
almost after 15 years and further fresh
notices are issued to the legal heirs of the
original borrowers on 18.01.2022 which is
almost after 18 years. However what needs to
be taken into consideration is pendency of
this issue at various forums and before this
Court. In the year 2012, the first writ petition
was preferred where the stay was granted
and the same was dismissed during the
pendency of the revision applications.
Thereafter the revision applications which
were subject matter of remand were disposed
of with a direction to prefer fresh application.
The dismissal of writ petitions which inter alia
prayed for One Time Settlement Scheme was
carried into appeal wherein stay was granted
against recovery. Further the Letters Patent
Appeal was dismissed and subsequent to the
dismissal of Letters Patent Appeal, RevisionPage 12 of 45
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Applications were also disposed of with a
direction to pass a fresh order. The
attachment order issued subsequent to the
revision applications were further challenged
by way of writ petition. Stay was granted in
this writ petition. The writ petition preferred
were again disposed of pursuant to the
statement made to pass fresh attachment
notice. This fresh attachment notice is subject
matter of three writ petitions being Special
Civil Application No. 20018 of 2019, Special
Civil Application No.19792 of 2021 and
Special Civil Application No. 20034 of 2019.
The time consumed in these litigation have to
be taken into account before coming to the
conclusion on the issue of limitation.
Therefore to exclude such time, Article 15 of
the Limitation Act will come into play. It is
trite law that the dismissal of the execution
petition or withdrawal of the first execution
petition would not come in the way of the
second execution petition, but the time
consumed while deciding the first execution
notice or attachment notice which was
pending litigation has to be excluded while
deciding the period of limitation. In the facts
of the case, the period from 2012 to 2017 has
to be excluded while considering the period of
limitation and therefore, the issue raised by
learned advocate Ms. Pahwa would be
untenable. The period for which litigation
have been pending and prohibitory orders
were passed would not considered while
counting the period of limitation. Further the
decision relied upon by learned Senior
Advocate Mr. Soparkar would be squarely
applicable to the facts of this case. The issue
of limitation is raised in both the notices i.e.
the notice issued in the year 2019 and the
notice issued in the year 2022. The notice
issued in the year 2019 is against the original
borrowers. The fact that the litigation was
pending and prohibitory order was passedPage 13 of 45
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would become a factor for counting the
period of limitation. Final appeal order was
passed in the year 2004 and 12 years from
the year 2004 would be in the year 2016.
Further before coming to the final decision of
the year 2016, the period of limitation and
prohibitory orders have to be accounted for.
Apart from that once the execution
proceeding has been initiated then it cannot
be deemed to be finally disposed of.
Subsequent application has to be treated as
continuance of the former one where the
former execution application is disposed of
for some reason, then the latter execution
application would deemed to be one for
revival of the former one. Therefore, once the
execution has started before the period of
limitation i.e. in the year 2012, then the
second execution would be in continuance
and revival of the earlier one. Therefore, the
subsequent execution order of the year 2019
which has been initiated after variety of
litigation and prohibitory orders and
subsequent direction to pass fresh attachment
orders cannot be said to be beyond the period
of limitation.
18. Apart from this aspect, the other point
raised by learned advocate Ms. Pahwa is with
regard to the attachment notice issued in the
year 2022. It has been submitted by learned
advocate Ms. Pahwa that the attachment
notice of the year 2022 is for legal heirs of the
original borrowers and that issue has been
raised for the first time in the year 2022 i.e.
after a period of 18 years from 2004. It has to
be noted that the subsequent attachment
notice even if given to the legal heirs of the
original borrowers is subsequent to the death
of the original borrowers. Therefore it is in
continuance of the earlier attachment notice
to the original borrowers and cannot be said
to be fresh attachment notice and beyond thePage 14 of 45
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period of limitation. However, one aspect
needs to be clarified is that the attachment
notice to the legal heirs of the original
borrowers would only be qua inheritance by
the legal heirs for the property or estate of
the original borrowers. There is no
clarification given with regard to the
explanation given by the legal heirs about the
self acquired property. The petitioner of
Special Civil Application No. 2430 of 2022
and Special Civil Application No. 2431 of
2022 being the legal heirs of original
borrowers can very well demonstrate before
the appropriate authority as to whether the
property was self acquired or part of any
estate or borrowed from the original
borrowers. The notices cannot be issued to
any of the self acquired property of the legal
heirs. However, such exercise has to be
conducted only before the appropriate
authority. If the property are self acquired
property of the legal heirs, then they cannot
be subjected to any of the proceedings.
Therefore, the issue raised by learned
advocate Ms. Pahwa as regards limitation is
answered against the petitioner. Further, the
decisions relied upon by learned advocate Ms.
Pahwa would not be of any help. The decision
in case of Antonysami (supra) discusses of the
application which was filed after 12 years of
pronouncement of the judgment. In the
instant case, the execution application was
not filed after 12 years but there were
multiple execution proceedings, subsequent
to the order passed by the Tribunal or by this
Court. As far as the new properties which
were attached, the same was done after the
demise of the original judgment debtor.
Further, the scope of the attachment has to
be looked from the angle of any asset being
transferred by the original judgment debtor.
In the instant case, the decision in case of
Marulasiddappa. (supra) and in case ofPage 15 of 45
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Pentapati China Venkanna & Ors. (supra)
would not be of any help to the petitioner.
Therefore, the contention with regard to the
aspect of limitation raised by the petitioner
has to go against the petitioner.”
(v) On the third aspect of wrong calculation of penal
interest, the observations of the learned single
judge in paragraph ’19’ of the judgement are
relevant to be noted hereinunder:-
“19. The third and the last aspect raised by
learned advocate Ms. Pahwa is with regard to
the calculation of the original borrowers
penal interest. Unfortunately this cannot be
an aspect which has to be adjudicated before
this Court. This Court cannot be relegated to
a form of recovery officer wherein calculation
with regard to original borrower raising
interest have to be made. It would be upon for
the petitioner to adjudicate this issue before
the recovery officer or any appropriate forum
as may be available in accordance with law.”
3. In the present appeals, the main issue initially pressed
before us is about the delegation of powers of issuance
of recovery certificate by the Secretary, Federal Society.
Referring to Section 159 of the Act’ 1961, it was
vehemently argued by Mr. R.S. Sanjanwala, learned
Senior counsel for the appellants/original petitioners,
that the power to recover due amount together with
interest by attachment and sale of property of any
person against whom a decree or award has been
passed, is conferred upon the Registrar or any officer
subordinate to him and empowered by him in that
regard. The delegation of powers of the Registrar under
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the Act, 1961 to a Cooperative federal society
recognized under Section 95 or to an officer of such
society, is permissible in view of Section 162(b) by
notification issued by the State Government in the
Official Gazette and subject to such conditions as
imposed therein.
4. In the instant case, by the Notification dated 07.10.2002,
issued in exercise of powers conferred by Section 162(b)
of the Act, 1961, published in the Official Gazette, the
powers of the Registrar under Section 159 of the Act
1961 to recover sum, interest, cost, etc., has been
delegated to the Federal Society registered under the
Act and recognized, as such, under sub-section (1) of
Section 95. The schedule to the said notification issued
by the Agriculture and Cooperation Department,
published in the Official Gazette, also makes it clear that
the power of the Registrar was conferred to the officer,
namely the Secretary of the Federal Society, i.e.
Secretary, Gujarat State Urban Co-operative Banks
Federation Limited.
5. Another Notification of the same date, i.e. 07.10.2002,
published under Section 161, provides that the
provisions of Section 95(1) of the Act, 1961 shall apply to
the societies specified in the schedule annexed thereto,
which contains the name of the Gujarat State Urban Co-
operative Banks Federation Limited.
6. The result is that the State Government, by Notification
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dated 07.10.2002, delegated the power of the Registrar
under the Act 1961, as conferred upon the Registrar
under Section 159, to make attachment and recovery of
sum due by sale, to the Secretary of the Federal Society.
However, in an illegal manner, the Secretary of the
Federal Society issued a communication dated
10.08.2021 to the officers/employees of the respondent
bank designating them as the “recovery officer”
delegating the power of making recovery under Section
159 of the Act. The attachment and recovery notices
having been issued by the said officer to whom sub-
delegation was made by the communication dated
10.08.2021 issued by the Secretary of the Federal
Society, are wholly without jurisdiction.
7. It was vehemently argued that the respondent no.1
herein, an employee of the respondent No.2 bank,
namely Porbandar Vibhagiya Nagrik Sahakari Bank
Limited, even otherwise, could not have been sub-
delegated the Registrar’s power of recovery which was
delegated to the Secretary of the Federal Society under
Section 162(b) of the Act, 1961 by the State
Government.
8. Further pressing upon the language employed in Section
161, it was vehemently submitted by the learned Senior
Counsel for the appellants that assuming for a moment
that the power of the Registrar conferred upon the
Secretary of the Federal Society could have been further
given to any subordinate officer, but then it wasPage 18 of 45
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incumbent that the said subordinate officer should be an
officer of the Federal Society only, who is subordinate to
the Secretary of the Federal Society, who could have
been entrusted to exercise the powers of the Registrar
under Section 159, by virtue of the Notification dated
07.10.2002 of the State Government.
9. The submission is that the respondent no.1 herein who
has been entrusted with the powers of the Recovery
Officer, is an employee of the respondent Bank and not
an officer subordinate to the Secretary of the Federal
Society. Further, an officer of the respondent Bank itself
could not have been entrusted with the power to make
recovery, inasmuch as, there would be an element of
bias in making recovery by the said officer who is an
employee of the respondent Bank who itself is litigating
with the appellants herein, namely the original
petitioners.
10. Besides that, it was argued that the initial liability for
which the suit was decreed was in total only to an
amount of Rs.6,71,252/- with interest payable with effect
from 01.01.2001 and the respondent Bank had attached
the mortgaged property as early as on 17.11.2003. But,
the auction sale was conducted only on 09.05.2009,
which had resulted in accrual of interest @ 21% for a
period of 6 years when the respondent bank itself did not
proceed to complete the auction sale for recovery of the
decreetal amount. This delay on the part of the
respondent bank resulted in issuance of furtherPage 19 of 45
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proceedings of recovery of the sum due in the year 2009,
which was Rs.10,18,000/-. The accumulated interest @
21% on the decretal amount of Rs. 6,71,252/- only had
resulted into recovery demanding a huge amount of
more than Rs.1.5 crores. The attachment notices dated
29.10.2019 with respect to two loan accounts
whereunder only Rs. 2,00,000/- and Rs. 4,00,000/- were
borrowed in the years 1999 and 2000, demanded a huge
sum of Rs. 1,56,42,162.93, for the above reasons.
11. The submission is that the levy of 21% interest resulted
into swelling of the decretal amount of only about Rs. 6
lakhs & odd to a huge sum of more than Rs. 1.5 crores,
which itself makes the entire recovery as
unconscionable.
12. It was, thus, vehemently argued by Mr. Sanjanwala, the
learned Senior counsel for the appellants that for the
fault of the respondent bank in not making recoveries of
the awarded amount well in time by auction sale of the
mortgaged property which was already attached in the
year 2003 itself, the liability of such a huge amount has
been fastened upon the petitioners/appellants herein for
no fault of theirs. It was argued that the respondent
bank cannot recover any amount beyond the amount of
Rs.15,30,000/- recovered by it by way of auction sale
dated 09.05.2009 of the mortgaged property, held to set-
off the entire outstanding loan.
13. The decree under the award dated 13.06.2003 is held to
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be satisfied with the recovery of the due amount from
the auction sale of the mortgaged property in the year
2009 itself. All the subsequent attachment notices for
recovery of the alleged due amount of Rs.10,00,000/-
and odd as on 09.05.2009, are liable to be quashed
having been issued in a malafide exercise of power.
14. To substantiate the submissions of the petitioners before
the writ court about the delay in execution of the
decree/award, reliance was placed upon the decisions in
Marulasiddappa v. Lakshmipathi, 1950 [SCC
OnLine Kar 13] (a Full Bench decision of the then
Mysore High Court).
15. Placing the judgement of the Apex Court in Pentapati
China Venkanna v. Pentapati Bangararaju [1964
SCC OnLine SC 250], it was further argued before us
that the attachment notices in the year 2019 was issued
in relation to three properties, viz. Survey Nos. 363, 364
and 344. Two persons out of whom against the said
recovery notices were issued had already died on
29.01.2006 and 23.03.2014. A fresh notice, subject
matter of challenge herein is dated 18.01.2022 issued in
relation to the fourth property, viz. Survey No. 1573,
which was not included initially in the recovery notices
of the year 2019. The notice dated 18.01.2022, thus,
would be barred by limitation, as it would be a new
attachment notice having been issued for the first time,
seeking to attach a property, which is substantially
different from the three properties, which are yet to be
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realised. In other words, it was argued that the notice
dated 18.01.2022 is to be rendered invalid being barred
by limitation, inasmuch as, the recovery initiated
thereunder against the new property would have to be
treated as a fresh application within the meaning of
Section 48 of the Code of Civil Procedure. Reliance is
placed on paragraph ‘9’ of the decision in Pentapati
China Venkanna (supra) to substantiate the same.
16. Mr. Sanjanwala, learned Senior advocate in his extensive
arguments spread over many days, while challenging the
order of the writ court, in the crux, raises five issues.
The submissions were that the order of the writ court
cannot be sustained, inasmuch as, the recovery initiated
against the petitioners vide both the notices of the year
2019 and 2022 suffer from the errors of law and fact on
the following five issues :-
(i) The delegation of power of the recovery officer to
an employee of the respondent Bank by the
Secretary of the Federal Society, is illegal;
(ii) No recovery certificate had been issued by the
Registrar in exercise of the power under Section
159 of the Act, 1961 and, as such, the recovery
notices are liable to be quashed;
(iii) The recovery notices dated 29.10.2019 and
18.01.2022 are barred by limitation for the
recovery having been initiated after a period ofPage 22 of 45
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more than 12 years as per Article 182 of the
Limitation Act;
(iv) The award fails, inasmuch as, 21% interest levied
in the loan agreement is unconscionable;
(v) There is an apparent bias in view of the
appointment of an officer of the respondent Bank
as a recovery officer, inasmuch as, no one can be a
judge of its own cause.
17. Considering the submissions on the above noted issues
during the course of arguments itself, a query was posed
to the learned Senior counsel appearing for the
appellant that the issue nos.(ii), (iv) and (v) having not
been been raised before the writ court in the original
writ petitions, cannot be appreciated at the stage of
appeal. There is no foundation in the writ petition about
the challenge to the delegation of power under Section
162(b) to the Secretary of the Federal Society by the
notification of the State Government and further, that
the interest of 21% being part of the contract, cannot be
said to be unconscionable, inasmuch as, this Court
cannot go beyond the decree.
18. As regards the issue of bias, no allegations of bias can be
borne out from the record nor the said issue has been
raised before the writ court. The personal bias of the
recovery officer as agitated during the course of
argument in this appeal, by the learned Senior counsel
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for the appellant cannot be appreciated for two reasons,
inasmuch as, the recovery has not even been proceeded
as on date, because of the challenge raised to the
recovery notices of 2019 and 2022 and further that the
recovery officer had not been impleaded by name before
the writ court nor there is any allegation against him in
the writ petition.
19. As regards the perceived allegations of bias made for the
first time in the present appeal, only because of the fact
of the Recovery Officer being the officer of the
respondent Bank, we do not find any good ground to
appreciate the arguments of the learned Senior
advocate.
20. Before proceeding to analyse the arguments of the
learned Senior counsel for the appellants, we may note
at this juncture, that the issue nos.(ii), (iv) and (v)
agitated before us, as noted hereinabove, are required to
be rejected at the threshold, as we do not find any
answer to our queries posed to the learned Advocate.
21. We further proceed to consider only two grounds of
challenge to the recovery notices, upturned by the writ
court, viz. issue nos. (i) and (iii) on the plea of sub-
delegation and the recovery notices being beyond
limitation. We, therefore, do not find any good reason to
burden this judgment with the arguments of the learned
Senior counsel made extensively on the issue nos.(ii), (iv)
and (v), not raised before the writ court and rejected by
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us, at the threshold even during the course of arguments
made by him.
22. Proceeding further, we may record the submissions of
Mr. Saurabh Soparkar, learned Senior advocate, in
rebuttal to the arguments made on the question of
delegation of power by the Secretary of the Federal
Society and limitation. The learned Senior advocate for
the respondent Bank would submit that Section 95 of the
Act, 1961 contemplates constitution of Cooperative
federal societies for the supervision of a society or a
class of societies. A Federal society, thus, is an
independent society constituted to monitor or supervise
the working of its Member society. Sub-section (1) of
Section 95 provides that the State Government may
recognise one or more cooperative federal societies in
such manner “as may be prescribed” and subject to such
conditions as the State Government may impose for the
supervision of a society or a class of societies.
23. Section 161 of the Act, 1961 empowers the State
Government, by general or special order, to be published
in the official gazette, to exempt any society or class of
societies from any provisions of the Act or to direct that
such provisions shall apply to such society or class of
societies with such modification not affecting the
substance thereof as may be specified in the order.
24. Attention of the Court is invited to page ‘186’ of the
paper book to submit that vide notification dated
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07.10.2002, in exercise of the powers conferred by
Section 161 of the Act, 1961, the State Government has
applied the provisions of sub-section (1) of Section 95 to
the societies specified in the schedule annexed thereto,
by substituting the words “in such manner as may be
prescribed” appearing in sub-section (1) of Section 95
with the words “by notification in the Official Gazette”.
Resultantly, the Gujarat State Urban Co-operative Bank
Federation Limited has been conferred the status of a
Cooperative Federal Society having powers for
supervision of its Member societies.
25. With another notification of the same date, i.e.
07.10.2002, in exercise of the powers conferred by
Section 162 (b), the State Government delegated the
powers of the Registrar under Section 159 of the Act,
1961 to the Secretary, Federal Society, viz. the Gujarat
State Urban Co-operative Bank Federation Limited,
mentioned in Column 3 of the Schedule, being a society
registered under the Act, 1961 and recognised under
sub-section (1) of Section 95 of the Act, by notification
dated 07.10.2002, for supervision of its members.
26. By placing the said notification dated 07.10.2002, issued
by the Agriculture and Cooperation Department,
Government of Gujarat, in exercise of powers under
Section 162 (b) of the Act, 1961, it was submitted by the
learned Senior counsel for the respondent Bank that the
officer mentioned in Column 2 of the Schedule to the
said notification is the officer through whom the
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Cooperative Federal Society is supposed to work. The
Secretary of the Gujarat State Urban Co-operative Bank
Federation Limited has, thus, been mentioned in Column
2 as the officer of the Cooperative Federal Society, viz.
the Gujarat State Urban Co-operative Bank Federation
Limited.
27. It is, thus, submitted that the delegation of power to the
Secretary, Federal Society, viz. the Gujarat State Urban
Co-operative Bank Federation Limited by the notification
dated 07.10.2002 being in line with the statutory
provision, cannot be disputed and moreover, there has
been no challenge to the validity of the said notification
before the writ court. The submission, thus, is that the
appellants herein cannot assail the conferment of the
power of the Registrar upon the Secretary, Federal
Society by virtue of the notification of the State
Government published in the year 2002. The contention
of the appellants that the recovery proceedings could
have been initiated only by the Registrar in view of
Section 159 of the Act, 1961 is, therefore, liable to be
rejected.
28. As regards the arguments about further delegation or
sub-delegation of the powers to make recoveries by the
Secretary, Federal Society, it is submitted that in light of
the scheme of Section 159 of the Cooperative Societies
Act, 1961, it would be only a question of empowerment
of an officer to act on behalf of the Secretary, Federal
Society who is the officer to act on behalf of the Federal
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Society, viz. the Gujarat State Urban Co-operative Bank
Federation Limited conferred with the powers of the
Registrar under Section 159 of the Act, 1961.
29. No exception, as such, can be taken to the order dated
10.08.2021 passed by the Secretary, Gujarat State
Urban Co-operative Bank Federation Limited
designating the officer of the respondent Bank as
“recovery officer” in the matter of recoveries under the
Act, 1961.
30. It was further argued that, even otherwise, there was no
challenge to the order dated 10.08.2021 of the
nomination of the “recovery officer” of the respondent
Bank, passed by the Secretary, Federal Society.
31. The attention of the Court is further invited to Rules
2(iv) and (v) of the Gujarat Cooperative Societies Rules,
1965, which read as under :-
“(iv) “Recovery Officer” means a person
subordinate to Registrar who is empowered to
exercise the powers of the Registrar under section
159;
(v) “Sale Officer” means an Officer empowered by
the Registrar by a general or special order to
attach and sell the property of defaulter or to
execute any decree by attachment and sale under
section 159 or a person effecting a sale in
pursuance of the provisions of section 134, as the
case may be;”
32. By reading of the said clauses of Rules, 1965, it is
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submitted that the “Recovery Officer” or the “Sale
Officer” within the meaning of the said Rules, 1965 are
the officers subordinate to the Registrar empowered by
the Registrar to exercise the powers of the Registrar
under Section 159 of the Act, 1961 for the purposes of
recovery of any amount due under the award of the
Board of Nominee by the attachment and sale under
Section 159 of the Act, 1961. The “Recovery Officer” or
the “Sale Officer”, as defined under Rule 2(iv) or (v), as
the case may be, empowered by the Registrar shall act
on behalf of the Registrar to exercise the power of the
Registrar conferred under Section 159 of the Act, 1961.
The “Registrar” has been substituted by the officer of
the Federal Society, i.e. Secretary, Gujarat State Urban
Co-operative Bank Federation Limited by virtue of the
notification dated 07.10.2002 and, as such, the word
“Registrar” occurring in Rule 2(iv) and (v) of the Rules,
1965 is to be substituted and replaced by the word
“Secretary, Cooperative Federal Society”.
33. The Secretary, Cooperative Federal Society, viz. Gujarat
State Urban Co-operative Bank Federation Limited, thus,
has empowered the officers of the respondent Bank to
act as “Recovery Officer” and “Sale Officer” within the
meaning of Rule 2(iv) and (v) of the Rules, 1965, by
virtue of his power conferred under Section 159 of the
Act, 1961. It is not a case of sub-delegation of powers by
the delegatee, rather delegatee acting in exercise of its
power conferred under the Act by way of delegation. It
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was urged that all arguments of the learned Senior
counsel for the appellant, to the contrary are, therefore,
liable to be turned down.
34. On the issue of limitation, it was argued by the learned
Senior counsel for the respondent bank that the same is
not entertainable for the simple reason that the original
petitioners herein have been litigating with the
respondent Bank through out the passing of the award
dated 13.06.2003 by the Board of Nominees in Lavad
Case Nos. 53 and 54 of 2001. After challenge to the
said award was turned down with the dismissal of the
statutory appeals on 31.08.2004, the attachment
proceedings were initiated by the respondent Bank and
the mortgaged property was put up for sale for recovery
of the due amount. However, the entire due amount
could not be recovered in the auction sale held on
09.05.2009 and, as such, attachment notices were issued
on 17.09.2012 whereafter the matter went back and
forth on various challenges brought by the original
borrowers and their legal heirs, namely the petitioners
herein.
35. The attachment notices dated 29.10.2019 were issued
after the decision of this Court in Special Civil
Application Nos. 493 of 2017 and 503 of 2017, which
were disposed of by the order dated 19.07.2019 in view
of the statement made on behalf of the respondent Bank
that the composite notices dated 02.01.2017 shall be
withdrawn and fresh separate notices for realisation of
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the amount in respect of respective decrees would be
issued, while keeping it open for the petitioners to raise
the issues, in the legal proceedings on issuance of the
fresh notices, if any.
36. The contention, thus, is that there is no question to
attract the provisions of Article 182 of the Limitation Act
when the recovery proceedings were initiated
immediately after the award of the Board of Nominees
had attained finality with the dismissal of appeals in the
year 2004, and further continued with the attachment
notices dated 17.09.2012, whereafter the parties are
litigating throughout.
37. The submission is that the present appeal being the fifth
round of litigation to challenge the recovery notices
issued by the respondent Bank for recovery of the due
amount, the first being Special Civil Application Nos.
14847 of 2012 and 14947 of 2012, which were filed
against the attachment notices dated 17.09.2012, the
submission with regard to the impugned recovery
notices being time barred are liable to be rejected at the
threshold.
38. The submission is that by litigating with the respondent
Bank, the original borrowers and now the petitioners
who are the heirs and legal representatives of the
original borrower have succeeded in avoiding their
liability and they cannot deny the interest liability
agreed upon by the original borrower in the loan
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agreement. The respondent Bank cannot be faulted in
making calculation of its outstanding loan amounts
which was to the tune of total Rs. 10,18,000/- calculated
after the auction sale was held on 09.05.2009, after
setting off the amount fetched in the sale.
39. Reliance is further placed on the decision of the Apex
Court in Manguben Ratilal Thakkar v. State of
Gujarat [2014 SCC OnLine Guj 4045] by the learned
Senior counsel for the respondent bank to submit that
the question as to the validity of the provisions of
Sections 95, 161 and 162 of the Gujarat Cooperative
Societies Act, 1961 and the notification dated
07.10.2002 issued thereunder have been upheld by the
Division Bench of this Court in the said decision and the
dispute with regard to the delegation, raised herein,
cannot be appreciated.
40. In rejoinder, Mr. Sanjanwala, the learned Senior counsel
for the appellants made an effort to distinguish the
arguments made by the learned Senior counsel for the
respondent bank, based on the decision in Manguben
Ratilal Thakkar (supra) by placing paragraph ’34’
thereof.
41. Having heard the learned counsels for the parties and
perused the record, the undisputed facts of the matter
culled out from the record of the writ petitions and the
instant appeals are as under :-
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(i) That the ancestors of the petitioners were the
borrowers of the loan granted by the respondent
no.2 Bank in the year 1999-2000. The borrowers
defaulted in payment of installment and hence,
Lavad Suits filed by the respondent Bank
culminated into the awards dated 13.06.2003,
which had attained finality with the dismissal of the
appeals under Section 102 of the Act, 1961 by the
Cooperative Tribunal on 31.08.2004.
(ii) The respondent Bank had attached the mortgaged
property after the awards were passed and put
them to sale, however, the entire outstanding loan
amount could not be realised by the auction sale
amount, so there was set off of the loan accounts.
(iii) Against the outstanding amount, first attachment
notices dated 17.09.2012 were issued by the
respondent Bank, which had led to the filing of the
writ petitions before this Court by the partnership
firm (borrower) seeking for settlement of the
outstanding amount under One Time Settlement
Scheme of the State. Initially, an interim order was
passed therein staying recovery, but later on the
writ petitions were dismissed rejecting the prayer
for One Time Settlement and pursue the revision
applications pending before the competent
authority. Pertinent is to note that there is no
whisper in the said writ petitions about the alleged
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by the bank leading to calculation of the
outstanding amount against two loan accounts.
(iv) In revision, though the attachment notices dated
17.09.2012 were quashed on technicality, but
liberty was kept open for the Bank to initiate fresh
recovery proceedings, which had led to filing of the
Letters Patent Appeals before this Court by the
borrowers/petitioners. The said litigation was also
brought to an end with the judgment and order
dated 29.09.2016 leaving it open for the petitioners
to raise objections regarding penal interest before
the appropriate authority as and when fresh
recovery proceedings were initiated.
(v) Upon issuance of the fresh attachment notice dated
02.01.2017, in the third round of litigation before
this Court brought by the borrowers/petitioners
herein, initially an interim order was passed
restraining the respondent bank from proceeding
with the attachment notices. However, the matter
was decided finally on the statement of the Bank
that the common attachment notice dated
02.01.2017 being composite notice for recovery
against two decrees be withdrawn and fresh
notices for realisation of the amount with the
respective decrees shall be issued.
(vi) The said writ petitions were, thus, disposed of
granting liberty to the Bank to proceed in
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accordance with law and leaving it open for the
petitioners to raise all contentions upon issuance of
fresh notices.
(vii) The attachment notices dated 29.10.2019, subject
matter of challenge before us in this bunch, were
consequently issued.
(viii)During the pendency of the writ petitions
challenging the notice dated 29.10.2019, another
attachment notice dated 18.01.2022 has been
issued seeking to attach one more property of the
petitioners for realisation of the loan amount with
the changed circumstances.
42. In view of the above noted sequence of events, when we
consider the arguments of the learned Senior counsel for
the appellants on the issue of limitation, we do not find
any error in the opinion drawn by the learned Single
Judge that the period from 2012-2017 has to be excluded
in view of the pending litigations and the prohibitory
orders passed by this Court against the Bank in three
rounds of challenge brought to the recovery
proceedings. The recovery proceedings were initiated
with the issuance of the first attachment notices on
17.09.2012 and cannot be said to have been finally
disposed of and, as such, the subsequent recovery
notices have to be treated as continuance of the former
one. In other words, the latter attachment notices would
be deemed to be ones for revival of the former ones. It
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would be considered that the execution of the
decree/award dated 13.06.2003 had commenced in the
year 2012 and continued with the revivals by the
subsequent attachment notices in view of the liberty
granted by this Court in the actions brought by the
borrowers/petitioners herein.
43. We do not find any error in the said conclusion drawn by
the writ court that the subsequent execution orders or
the attachment notice of the year 2019, which have been
initiated after variety of litigations and prohibitory
orders and subsequent directions to pass fresh
attachment orders, cannot be said to be beyond the
period of limitation.
44. As regard the issues pertaining to the validity of the
attachment notice for the recoveries initiated against the
heirs and legal representatives of the original borrowers,
insofar as the issue as to whether the property was a
self-acquired property or part of any estate or borrowed
from the original borrowers, suffice it to say that the writ
court has carefully observed that the said issue can very
well be demonstrated before the appropriate authority
and that such exercise has to be conducted only before
the appropriate authority. The legality of attachment
notices dated 29.10.2019 and 18.01.2022 on the plea of
the said notices having been issued for attachment of the
self-acquired properties of the heirs of the original
borrowers, rightly have not been looked into in the writ
proceedings being factual in nature. Suffice it to say
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that the said issue cannot be raised to assail the
limitation in execution of the awards dated 13.06.2003,
inasmuch as, the same would be pertaining to the merits
of the attachment notices, which is not to be examined
by us.
45. This view taken by the Writ court further finds support
from the decision of the Apex Court in Pentapati China
Venkanna (supra), wherein the Apex Court noticing
the provisions of Order 21 Rule 17 (1) of the Code,
considering the facts of the said case, has recorded that
as there is no provision in the Code of Civil Procedure
for making orders for closure of the execution
proceedings and any phraseology used by the executing
court such as “closed for statistical purposes”, “struck
off”, “recorded” would not amount to finally terminate
the execution proceedings. In the said case, the first
execution application was “closed for statistical
purposes” and on a fresh execution application, an
argument was raised that there being no power
conferred upon the Court to close the execution
proceedings for statistical purposes, in the event of such
order being made, it must be deemed to be an order
dismissing the execution application. The question
therein was as to whether the subsequent execution
application shall be considered to be a fresh application
within the meaning of Section 48 of the Code of Civil
Procedure’ 1908.
46. Noticing the above, the Apex Court has held therein that
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whether the order was without jurisdiction or whether it
was valid, the legal position would be the same, i.e. in
one case, it would be ignored and in the other, it would
mean what it is stated. In either case, the execution
application would be pending on the file of the Court.
Whatever terminology would be used, it is for the Court
to ascertain having regard to the circumstances under
which the said order was made, whether the Court
intended to finally terminate the execution proceeding.
In the said case, it was held that the previous execution
petition was pending on the file of the executing court
and that the subsequent one was only an application to
continue the same.
47. The further contention of the learned advocate therein
was that the subsequent execution petition being against
the legal representatives of some of the
defendants/judgement debtors; and that the decree
holder did not seek to proceed against all the properties
against which they sought to proceed in the former
execution petition; and for additional reliefs prayed in
for attachment of the amount deposited in the Court,
subsequent application should be treated as completely
new one, being completely different from the former
one, both in form and in particulars. Answering the
same, it was held therein that nothing turns upon it,
inasmuch as, the new parties added in the subsequent
execution petition were either legal representatives of
the deceased parties or the representative of a party
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who had become insolvent. Further, the decree holder
cannot be compelled to proceed against all the
properties against which at one time they sought to
proceed. It was, thus, concluded that in substance, in
both the execution petitions (the previous & the
subsequent), the decree holders sought to proceed
against the same parties and against the same
properties and hence, the subsequent execution petition
cannot be treated as fresh application within the
meaning of Section 48 of the Code of Civil Procedure.
48. Applying the said legal principles, we do not find any
error in the judgement impugned. However, a new
argument has been made before us by the learned
Senior counsel for the appellants about the attachment
notices dated 18.01.2022, being barred by limitation,
having been issued for attachment of a new property,
which is substantially different from three properties,
subject matter of attachment in the notices dated
29.10.2019.
49. On this argument as well, we do not find any reason to
delve deep, inasmuch as, the said attachment notices
dated 18.01.2022 are also to be treated as continuance
of the previous attachment notices dated 29.10.2019 and
cannot be quashed on the plea of being barred by
limitation.
50. Having said that, we are also required to note that the
petitioners herein had prolonged the recovery of the
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outstanding loan for a substantial period raising various
grounds challenging the attachment notices issued from
time to time, in order to avoid the recovery of the
outstanding amount, which has caused accumulation of
interest @ 21%, resulting into the outstanding loan
amount being swollen from the original amount due
under the attachment notices dated 17.09.2012,
substantially under the attachment notices issued in the
year 2019, subject matter of challenge in the writ
proceedings.
51. The question is whether the decree would be satisfied by
the attachment and sale of properties, subject matter of
attachment notices dated 29.10.2019. Moreover, as per
the own case of the petitioners, two of the original
noticees had passed away in the years 2006 and 2014.
The question again would be as to whether the Bank
would be entitled to proceed against the properties,
subject matter of two notices dated 29.10.2019 and
18.01.2022 being part of any estate or borrowed from
the original borrower or the said notices are in respect
of any self-acquired property of the legal heirs, which
have been left to be agitated before the appropriate
authority, by the writ court.
52. The Judgment impugned categorically records that the
scope of the attachment has to be looked from the angle
of any asset being transferred by the original judgment
debtor, insofar as the issue that the attachment notices
were issued after demise of the original judgement
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debtor.
53. We, therefore, reach at an irresistible conclusion that
the validity of the attachment notices dated 18.01.2022
allegedly seeking to include a new property for
execution of the award dated 15.06.2003 need not be
examined by us on merits. As has been held that both
the attachment notices dated 29.10.2019 and 18.01.2022
shall be treated as continuance of the first attachment
notice dated 17.09.2012, we do not find substance in the
submission of the learned senior counsel for the
appellants based on the observation made in paragraph
‘9’ of the Apex Court in Pentapati China Venkanna
(supra) that merely because a new property is sought to
be attached, which was not included in the previous
attachment notices, the attachment notices dated
18.01.2022 are to be held to be fresh execution petitions
within the meaning of Section 48 of the Code of Civil
Procedure. The said issue was open only after previous
notices were finally disposed of and the new one can be
be held to be barred by limitation having been issued
after 12 years from the date of the decree/award. In the
present case, the circumstances speak otherwise.
54. All arguments made by the learned Senior counsel for
the appellants to challenge the attachment notices dated
29.10.2019 and 18.01.2022 being barred by limitation in
view of Section 48 of the Code of Civil Procedure read
with Article 182 of the Limitation Act, are, therefore,
turned down being devoid of any force.
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55. Coming to the second issue of sub-delegation by the
Secretary, Cooperative Federal Society vide order dated
10.08.2021 by empowering an officer of the respondent
Bank as “Recovery Officer” in the matter of recoveries
under the Act, 1961, suffice it to say that having gone
through the scheme of the Act, 1961 as well as the
Rules, 1965 framed thereunder, it is evident that the
Secretary, Cooperative Federation Society, viz. the
Gujarat State Urban Co-operative Bank Federation
Limited, stepped into the shoes of the Registrar for the
purposes of exercise of the powers under Section 159 of
the Act, 1961 for initiating recovery proceedings.
56. Further, with the conferment of the powers upon the
Secretary, Federal Society to act as the Registrar under
Section 159 of the Act, 1961, it was well within his
power to empower any officer subordinate to him to act
on his behalf to exercise the powers under Section 159
as a “Recovery Officer” within the meaning of Rule 2(iv)
and any other officer as “Sale Officer” to attach and sell
the property of a defaulter or to execute any decree by
attachment and sale under Section 159 of the Act, 1961.
There is no challenge to the order dated 10.08.2021
passed by the Secretary, Federal Society to empower the
officer of the respondent Bank to act as the “recovery
officer” as aforesaid.
57. The only issue raised is as to whether the officer or
employee of the respondent Bank, who has been
empowered by the Secretary, Gujarat State Urban Co-
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operative Bank Federation Limited by the order dated
10.08.2021 to act as “Recovery officer” or “Sale Officer”
under Rule 2(iv) and (v) of the Rules, 1965, can be said
to be an officer subordinate to the Secretary, Federal
Society or not.
58. On this issue, we do not need to delve deep, inasmuch
as, the Federal Society is an Apex body constituted or
recognised under Section 95(1) of the Act, 1961 to
supervise society or class of societies. The “federal
society” is defined in Section 2(9) as under :-
“federal society” means society, not less than ten
members of which are themselves societies;”
59. The class of societies which are brought under the
provisions of a federal society, by virtue of Section 95(1),
thus, are the members of the federal society.
60. The “Officer” of a society defined in Section 2(14) of the
Act, 1961 include a Secretary of a Society appointed
under the Act, the Rules or the by-laws in regard to the
business of such society. The Federal Society acting
through its Secretary having supervision and control
over its Member societies, the officers or employees of a
member society appointed under the Act, Rules or by-
laws shall have to be considered as officers or employees
subordinate to the Secretary, Federal Society who is
conferred with the power to give directions in regard to
the business of such society under its supervisory
control.
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61. The “recovery officer” nominated by the Secretary,
Federal Society, in the instant case, cannot be said to be
an officer not being subordinate to the Secretary,
Federal Society, who could not have been empowered to
exercise the powers of recovery within the scheme of
Section 159 of the Act, 1961, acting on behalf of the
Secretary, Federal Society, upon whom the powers
under the said section has been conferred with the
notification dated 07.10.2002 by the State Government
under Section 162(b) of the Act, 1961.
62. At the cost of repetition, it is noted here that since there
is no challenge to the order dated 10.08.2021 passed by
the Secretary, Gujarat State Urban Co-operative Bank
Federation Limited designating the officer of the
respondent Bank as “Recovery Officer” in the matter of
recoveries under the Act, 1961, inasmuch as, no relief
has been sought in the present set of writ petitions, the
submissions raised with regard to power of the
Secretary to designate the officer of the bank as
“recovery officer’ cannot be sustained.
63. As noted, hereinbefore, the challenge in the present set
of writ petitions are only to the attachment notices dated
29.10.2019 and 18.01.2022 on the grounds of being
beyond limitation and the “Recovery Officer” being
incompetent to issue such notices. Both the issues
having been answered in view of the discussion made
above, we do not find any good ground to attach any
error to the judgment and order dated 10.07.2025
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passed by the Writ Court.
64. The present set of intra court appeals are accordingly,
dismissed being devoid of merits. No order as to costs.
Pending Civil Applications would not survive and shall
stand disposed of, accordingly.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
FURTHER ORDER
After pronouncement of the judgment, Ms.Sangeeta
Pahwa, the learned advocate appearing for the Thakkar and
Pahwa Advocates for the appellants would make a request to
stay the operation of this judgment, which is denied noticing
that the recovery proceedings had been stalled for a
sufficiently long time because of the repeated litigations
initiated by the appellants.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BIJOY B. PILLAI
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