Andhra Pradesh High Court - Amravati
Vennapusa Meenakshi vs The State Of Ap on 4 October, 2024
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
I.A.No.1 of 2023
In
WRIT PETITION No.20626 of 2019
ORDER:
The present interlocutory application is filed under Order VI Rule
17 read with Section 151 of C.P.C. for amendment of the prayer in the
Writ Petition No.20626 of 2019.
2. Initially, the Writ Petition is filed impugning the proceedings
issued by the 2nd respondent dated 16.11.2019, in pursuance of the
orders passed in E.P.No.58 of 2017-18, purportedly in exercise of the
powers conferred under Rule 52 of the Andhra Pradesh Cooperative
Societies Rules, 1964, and consequential registration of sale deed in
respect of EP schedule property in favour of the 4th respondent, as
invalid, void, illegal, arbitrary and ultra-vires, without authority of law,
jurisdiction and unconstitutional and violative of Articles 14 and 300A of
the Constitution of India.
3. While the Writ Petition is pending, the present I.A.No.1 of 2023 is
filed on the ground that the only recourse that is available with the
respondent-bank to seek recovery of debt of the amount more than
Rs.10,00,000/- should be availed by filing an application under the
provisions of the Recovery of Debts and Bankruptcy Act, 1993, as held
by the judgment rendered a Full Bench of the composite High Court in
M.Babu Rao and others v. Deputy Registrar of Co-operative
Societies/Officer on Special Duty, Vasavi Co-op. Urban Bank Ltd.,
Malakpet, Hyderabad and others1 Co-operative Society Registrar is not
having jurisdiction and any order of the Registrar is null and void and
cannot be sustained, as held by the Full Bench of the composite High
Court and the Co-operative Banks are governed by legislation relatable
to Schedule VII, List-I, Entry 45 of the Constitution of India and that the
Co-operative Banks involved in the activities related to banking are
covered within the meaning of Banking Company and that the Co-
operative Banks cannot carry on any activity without compliance of
provisions of the Banking Regulation Act, 1949, and the Co-operative
Banks under the State Legislation are Banks under Section 2(1)(c) of
the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002, and the recovery is an
essential part of the banking, as such, the recovery procedure
prescribed under Section 13 of the said Act is applicable. Therefore,
any action initiated by the Co-operative Bank under the provisions of the
Act is nullity and cannot be enforced. The said contention is purely a
question of law relating to the issue of jurisdiction and competence of
the respondent-bank in initiating the proceedings of recovery under the
provisions of the Societies Act. Hence, prayed to permit to amend the
relief sought in the Writ Petition to declare to that effect that the
proceedings initiated by the respondent Nos.2 to 4 relating to passing of
award dated 24.01.2017 and consequential action of issuing of the sale
certificate in favour of the 4th respondent is null and void and without
jurisdiction.
2005 (4) ALD 582 (FB)
4. Learned counsel for the respondents filed their counter in the
present interlocutory application and contended that the award was
passed on 21.04.2017 against the writ petitioners for not repaying the
loan amount taken from the 4th respondent-bank and thereafter, the 2nd
respondent herein issued sale notices in ODEP.No.57/2017-18 &
58/2017-18 dated 12.09.2018, 29.11.2018, 28.01.2019 and 07.05.2019.
Accordingly, sale has been conducted by the Sale Officer on
29.10.2018, 19.12.2018, 15.03.2019 and 12.06.2019 and as the
auctions are not materialized, the Board of Management of the 4th
respondent-bank resolved to set off the property towards full and final
settlement of entire dues.
5. Questioning the sale notice dated 12.08.2018, the writ petitioners
filed W.P.No.37588 of 2018 and this Court granted interim order on
24.01.2018, directing the petitioners to pay an amount of Rs.50 lakhs
within two weeks and another Rs.50 lakhs to be paid thereafter within
two weeks and the auction schedule to be held on 29.10.2018 may go
on, but for a period of two weeks auction proceedings shall not finalize.
And it is asserted that the writ petitioners have failed to comply the
directions issued by this Court and subsequently the said Writ Petition
was dismissed and the bank resolved to set off the property by way of
notice dated 29.08.2019 and questioning the said notice, the present
Writ Petition No.20626 of 2019 is filed.
6. And also it is asserted that the judgment of the Hon'ble Apex
Court relied on by the learned counsel for the writ petitioners in
Pandurang Ganpat Chaugule v. vishwasrao Patil Murgud Sahakari
Bank Limited2 is not applicable to the present facts of the case and as
on the date of judgment of the Hon'ble Apex Court, the subject matter of
the present Writ Petition was settled and it can be said that it is not an
ongoing case. And it is also stated that the issue was determined and it
had attained finality and a subsequent judgment of a Court or Tribunal
taking contrary view would adversely affect the respondents herein.
therefore, prayed to dismiss the present interlocutory application filed for
amendment of the prayer of the Writ Petition.
7. A learned single Judge of the composite High Court of Andhra
Pradesh at Hyderabad in Fgp Limited v. Presiding Officer, Labor Court-
III3, after considering the judgment of the Hon'ble Apex Court, has
observed that though amendment cannot be claimed as a matter of right
and under all circumstances, Courts while deciding such prayers,
should not adopt a hyper-technical approach and liberal approach
should be the general rule and technicalities of law should not be
permitted to hamper Courts in the administration of justice between the
parties and the amendments are allowed to avoid uncalled for
multiplicity of litigation, relying on the judgment of the Hon'ble Apex
Court in Ragu Thilak D. John v. S.Rayapan4.
8. In the present case, the amendment was sought relying on the
judgment of the Hon'ble Apex Court, where the Apex Court has held
that in a way, recovery of more than Rs.10 lakhs that the only recourse
that is available with the respondent-bank to seek recovery of debt by
filing an application under the provisions of the Recovery of Debts and
(2020) 9 SCC 215
2006 (1) ALD 512
AIR 2001 SC 699
Bankruptcy Act, 1993. And as the said contention is legal contention,
this Court is of the opinion that the present Interlocutory Application filed
for amendment of the prayer in the Writ Petition is liable to be allowed.
9. Accordingly, this Interlocutory Application is allowed. The office is
directed to carry out the amendments.
__________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 04.10.2024
siva
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
In
WRIT PETITION No.20626 of 2019
Date: 04.10.2024
siva
