Karnataka High Court
Kum. Ramya Deshapande Deshpande D/O ... vs State Of Karnataka on 5 July, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC-D:9268
WP No. 101225 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.101225 OF 2024 (CS-DAS)
BETWEEN:
KUM. RAMYA DESHAPANDE
D/O ANIL KUMAR K. DESHPANDE,
AGED ABOUT 24 YEARS,
OCC: EMPLOYEE IN PRIVATE FIRM,
R/O: AT: NO.2260, WARD NO.5,
KILLA GALLI, BILAGI TOWN,
BAGALKOT DISTRICT.
... PETITIONER
(BY SRI N.S. SURAJ GOUDA, ADVOCATE FOR
SRI HANUMESH M. DESAI, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
VIDHAN SOUDHA,
DR. AMBEDKAR VEEDI,
BENGALURU-560001,
R/BY ITS CHIEF SECRETARY.
ASHPAK
KASHIMSA
2. STATE OF KARANTAKA,
MALAGALADINNI DEPARTMENT OF REVENUE,
Digitally signed by ASHPAK
M.S. BUILDING,
KASHIMSA MALAGALADINNI
Location: HIGH COURT OF
KARNATAKA DHARWAD
DR. ABMEDKAR VEEDI,
BENCH
Date: 2024.07.10 12:24:47
+0530 BENGALURU-560001,
R/BY ITS PRINCIPAL SECRETARY.
3. THE COMPETENT AUTHORITY,
M/S SMN SOUHARDA CREDIT CO-OP LTD.
AND ADDL. REGIONAL COMMISSIONER,
BMTC BUILDING, SHANTHI NAGAR,
BENGALURU-560027.
4. THE DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIETIES SOUHARDA
CO-OPERATIVE ARBITRATION COURT
NO.68, BETWEEN, 17 AND 18 CROSS,
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NC: 2024:KHC-D:9268
WP No. 101225 of 2024
MALLESWARAM, BENGALURU-560055.
5. THE KARNATAKA STATE SOUHARDA
FEDERAL CO-OP. LTD.,
'SOUHARDA SAHAKARI SOUDHA',
OFFICE AT NO.68,
BETWEEN 17 AND 18 CROSS,
MALLESHWARAM,
BENGALURU-560055.
6. M/S SMN SOUHARDA CREDIT CO-OP. LTD.,
R/BY ITS LIQUIDATOR AND DISTRICT
CO-COORDINATOR,
KARNATAKA STATE SOUHARDA
FEDERAL CO-OP. LTD.,
KRSIHNA COMPLEX,
NEAR SIDDESWARA TEMPLE,
SRI SIDDESWARA ROAD,
VIJAYAPUR-586101.
7. THE SPECIAL OFFICER,
M/S SMN SOUHARDA CREDIT
CO-OP. LTD., KRISHNA COMPLEX,
NEAR SIDDESWARA TEMPLE,
SRI SIDDESWARA ROAD,
VIJAYAPUR-587101.
... RESPONDENTS
(BY SRI SHIVARPABHU S. HIREMATH, AGA FOR R1, R2 & R4;
SRI VEERESH R. BUDIHAL, ADVOCATE FOR R3;
R5, R6 & R7-NOTICE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI BY QUASHING THE GAZETTE NOTIFICATION DATED 11-
11-2021, PUBLISHED ON 15/12/2021 ISSUED BY THE FIRST
RESPONDENT ATTACHING THE SCHEDULE PROPERTIES ANNEXURE-C
AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:9268
WP No. 101225 of 2024
ORDER
1. Heard the learned counsel Sri. N.S.Sairaj Gowda, on behalf of learned counsel Sri. Hanumesh M. Desai, appearing for the learned counsel for the petitioner, learned AGA for respondent Nos.1, 2 and 4 and Sri. Veeresh R. Budihal, learned counsel for the respondent No.3.
2. It is the case of the petitioner that, the agricultural property bearing survey No.48/1+2, measuring 6 acres 22 guntas, survey No.347/3B, measuring 9 guntas and survey No.355, measuring 1 acre 24 guntas, situated at Bilagi village, Bilagi Hobli, Bilagi taluk, Bagalkot district, are the subject matter of the suit proceedings initiated by the petitioner as she is the daughter of one Anil Kumar Keshavarao Deshpande and grand-daughter of late Keshav Rao. The said properties were undivided Hindu joint family properties, in which the petitioner has rightful claim over the property. She has initiated the suit proceedings in O.S.No.82/2023 before the Senior Civil Judge and JMFC Court, Bilagi, against her brother, father and other respondents for partition and separate possession. -4-
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3. The petitioner came to know that, the respondent No.1-Government had passed an order of attachment in respect of the properties mentioned herein above, which are un-divided joint family properties of the petitioner under Section 3(2) of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004, (for short 'the KPID Act') on the ground that, M/s. SMN Credit Souhardha Sahakari Niyamita, Vijayapura, failed to deposit the amount in which the father of the petitioner Anilkumar Keshavarao Deshpande, was the director and appointed respondent No.3 as competent authority. This being the case of respondent No.3, the competent authority filed a petition in Misc. No.5501/2023 before the Special Additional City Civil Judge, Bengaluru, seeking order of absolute attachment of schedule properties in view of the order passed by the respondent No.1 which is pending consideration.
4. It is the contention of the learned counsel for the petitioner that, the respondent No.4-authority passed an order of attachment before passing of the Judgment, in respect of the properties in question under Section 44 of the -5- NC: 2024:KHC-D:9268 WP No. 101225 of 2024 Karnataka State Souharda Sahakari Act, 1997, (for short 'KSSS Act') on the ground that, the father of the petitioner misappropriated the funds of respondent No.6 society being a Director. It is the contention of the learned counsel that, the properties of the father of the petitioner are not absolute properties or self acquired properties. They are the properties of joint Hindu undivided family properties in which the petitioner has un-divided 1/3rd equal share along with her brother and father. Therefore, the order of attachment of the properties passed by the respondent Nos.1 and 4 would not survive as against the petitioner as the petitioner was not made as a party in the proceedings before the concerned authority.
5. Learned counsel further contends that, apart from initiating proceedings under the Karnataka State Souharda Sahakari Act, 1997, the respondents have also initiated proceedings under Section 3(2) of the 'KPID Act'. Hence, he contends that, there are two parallel proceedings initiated against the properties, in which the petitioner has an undivided share for which already she has initiated a suit in -6- NC: 2024:KHC-D:9268 WP No. 101225 of 2024 O.S.No.82/2023 which is pending adjudication. Therefore, it is his contention that, to the extent of 1/3rd share of the petitioner, no action should be taken by the competent authority. Hence, left with no other alternative efficacious remedy, the petitioner is before this Court, seeking to stay the gazette notification issued by the respondent No.1 for attaching the schedule properties at Annexure-C and consequential orders.
6. Learned counsel Sri. Veeresh Budihal, appearing for respondent No.3 contends and raises a preliminary objection that the petition itself is not maintainable in view of the bar contained under Section 10 of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004. Sub-clause 1, 2, and 3 of Section 10 reads as under:
"10. Special Court.-
(1) For the purposes of this Act, the Government may, with the concurrence of the Chief Justice of the High Court of Karnataka, by notification, constitute one or more Special Court consisting of a single judge not below the rank of a District and Sessions Judge for such area or areas or for such class or classes of cases. [Provided that, if the Government is of the opinion that where cases pertaining to any financial -7- NC: 2024:KHC-D:9268 WP No. 101225 of 2024 establishment are spread over more than one District, the Government may, with concurrence of the Chief Justice of the High Court of Karnataka, by notification designate one Court of District or Sessions Judge as special Court to deal with all such cases pertaining to such financial establishment.] (2) No Court including the Court constituted under the Presidency Towns Insolvency Act, 1909 [Act 3 of 1909] and the Provincial Insolvency Act, 1920, [Act 5 of 1920] other than the Special Court shall have jurisdiction in respect of any matter to which the provisions of this Act is invoked.
(3) Any pending case in any other court in respect of which the provisions of this Act is invoked, shall stand transferred to the Designated Courts from the date of notification issued under sub-section (1)."
7. It is the vehement contention of the learned counsel for the respondent No.3 that, though the petitioner was not a party to the initiation of proceedings under the KSSS Act, or under the KPID Act, any claim that could be made by the petitioner will be subject to the provisions of KPID Act and the Special Court is seized of the matter as contemplated under Section 10 and no Court other than Special Court would have jurisdiction in respect of any matter under the provisions of this Act. Therefore, he contends that, the petition would have to be dismissed as not maintainable and at the same time, he contends that, -8- NC: 2024:KHC-D:9268 WP No. 101225 of 2024 the petitioner would be at liberty to claim any right over the property by making an application before the Special Court and the same would be considered by Special Court after hearing the petitioner, in accordance with law.
8. Learned AGA representing the State subscribes to the arguments put forth by the learned counsel for the respondent No.3, and also contends that, when there is a special enactment and a special Court is constituted, dealing with the cases falling under KPID Act, any pending case in any other Court would have to be transferred to the Special Court to be dealt with the provisions of KPID Act.
9. It is the apprehension of the learned counsel for the petitioner that, there would be two parallel proceedings on the same cause of action against the properties belonging to the petitioner. Therefore, he contends that, if the matters are dealt with by the special Court under the KPID Act, so also the proceedings initiated under the KSSS Act, on the properties in which the petitioner has share, then he would have not much objection in participating in the proceedings before the special Court constituted under Section 10 of the -9- NC: 2024:KHC-D:9268 WP No. 101225 of 2024 KPID Act. I am in agreement with the learned counsel for the petitioner that, there cannot be two parallel proceedings initiated for the same cause of action for the recovery of the amount. However, the provisions of Section 10 of the KPID Act, makes it clear that, any proceedings in any other Court in respect of which the provisions of the KPID Act are invoked, shall stand transferred to the designated Court from the date of notification under sub-Section 1 of Section 10 of KPID Act. Therefore, the apprehension of the learned counsel for the petitioner is answered in Section 10 of the KPID Act.
10. So also, the provisions of sub-Section 2 and 3 of Section 12 of the KPID Act, reads as under:
"12. Powers of Special Court regarding attachment.-
(2) The Special Court shall also issue such notice, to all other persons represented to it as having or being likely to claim, any interest or title in the property of the Financial Establishment or the person to whom the notice is issued under sub section (1), calling upon all such persons to appear on the same date as that specified in the notice and make objection if they so desire to the attachment of the property or any portion thereof on the ground that they have interest in such property or portion thereof.
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NC: 2024:KHC-D:9268 WP No. 101225 of 2024 (3) Any person claiming an interest in the property attached or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the Special Court at any time before an order is passed under subsection (4) or sub-section (6)."
11. This Section provides remedy for the petitioner to approach Special Court to claim interest over the properties that are attached even though the petitioner was not made as a party.
12. Under the circumstances, when there is an alternative efficacious remedy available to the petitioner, the present petition would not be maintainable and the petitioner would have to be relegated to the special Court to make all endeavors before the special Court to claim appropriate relief. Therefore, all grounds urged herein could be canvassed before the Special Court by the petitioner.
13. Under the circumstances, I pass the following:
ORDER
(i) The petition is disposed of;
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(i) The petitioners are at liberty to approach the special Court and file necessary application with regard to the grievance addressed herein on his/her right over the properties that are subject matter of the Judgment which shall be dealt with the special Court, independently;
(ii) Any other proceedings so initiated on the same cause of action shall also be now dealt with by the special Court in view of Section 10(3) of the Act;
(iii) All contentions of the parties are kept open to be urged before the special Court;
(iv) It is made clear that, this Court has not expressed any opinion on the merits of the matter;
(v) The special Court, on the application, if any made by the petitioner shall be disposed of
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NC: 2024:KHC-D:9268 WP No. 101225 of 2024 within a period of two months, accordance with law.
(vi) In view of the fact that, all parties to the proceedings are before this Court, they shall appear before the special Court on 05.08.2024 without awaiting any further notice either from the special Court or this Court.
Sd/-
JUDGE SVH CT:BCK LIST NO.: 1 SL NO.: 27