Karnataka High Court
G. Krishnamurthy vs The Joint Registrar Of ... on 13 December, 2021
Bench: Alok Aradhe, Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE ANANT RAMANATH HEGDE
W.A. NO.703 OF 2020 (GM-ST/RN)
IN
W.P.No.10232 OF 2020 (GM-ST/RN)
BETWEEN:
1. G. KRISHNAMURTHY
S/O LATE GANGAPPA
AGED ABOUT 64 YEARS
PROPRIETOR OF SRI VINAYAKA
BUILDERS AND DEVELOPERS.
2. SMT. NEETHA KRISHNAMURTHY
W/O G. KRISHNAMURTHY
AGED ABOUT 59 YEARS.
BOTH ARE RESIDING AT NO.1404
14TH FLOOR, B BLOCK
SALARPURIASATTVA
YESHWANTHPURA
BENGALURU-560003.
... APPELLANTS
(BY MR. D.R. RAVISHANKAR, ADV., FOR
MR. PRUTHTHVI WODEYAR, ADV.,)
2
AND:
1. THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES
BENGALURU REGION, CHAMARAJPET
BENGALURU-560018.
2. RECOVERY OFFICER
ZONE-II, NO.32, 2ND FLOOR
KARNATAKA STATE COOPERATIVE
FEDERATION BUILDING
RACE COURSE ROAD
BENGALURU-560001.
3. MICO ASSOCIATES HOUSE BUILDING
CO-OPERATIVE SOCIETY
NO.290/2, LAKSHMI ARCADE
WILSON GARDEN
OPP. SABARWAL RESTAURANT
BENGALURU-560027
REP. BY ITS SECRETARY.
4. MR. SURESHKUMAR .S
S/O M.V. SAMPANGIRAMAYYA
NO.33, 1ST CROSS
NEAR ANJINEYA TEMPLE
MALLASANDRA, T. DASARAHALLI
BENGALURU-560057.
5. MR. NAVEEN REDDY B.J.
S/O B. JAYARAMA REDDY
R/AT NO.27, 1 B MAIN ROAD
MOHAN KUMAR NAGAR
YESHWANTHPURA
BENGALURU-560022.
6. MR. RAVISHANKAR
S/O NAGARAJAPPA
AGED MAJOR
R.AT NO.904/1, OLD NO.21
BAHUBALI NAGAR
JALAHALLI VILLAGE MAIN ROAD
JALAHALLI, BENGALURU-560013.
3
7. MR. THIRUPATHAIAH
S/O PUTTAIAH
AGED ABOUT 40 YEARS
R/AT NO.8, NARAYANA REDDY LAYOUT
PIPELINE ROAD, ABBIGERE
CHIKKABANAVARA POST
BENGALURU-560090.
8. MRS. SAVITHA
W/O MR. L. SATHISHA
AGED ABOUT 40 YEARS
R/AT NO.5/1, 9TH C CROSS
1ST STAGE, 2ND PHASE
KANNADA CHANDRODAYA SCHOOL
GOKULA, YESHWANTHPURA
BENGALURU-560022.
... RESPONDENTS
(BY MR. UDAYA HOLLA, SR. COUNSEL FOR
MR. H.M. HARSHA, ADV., FOR C/R3
MR. GURUPRASAD, ADV., FOR R7 & R8
MR. G.V. SHASHIKUMAR, AGA FOR R1 & R2
MR. SANJAY H. SETHIYA, ADV., FOR R5 & R6
R4 SERVED)
---
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO ALLOW THE APPEAL BY SETTING
ASIDE THE ORDER DATED 18/11/2020 PASSED BY THE LEARNED
SINGLE JUDGE IN W.P.NO.10232/2020 AND ALLOW THE WRIT
PETITION.
THIS W.A. COMING ON FOR PRELIMINARY HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
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JUDGMENT
Mr.D.R.Ravishankar, learned counsel for the appellants.
Mr.G.V.Shashi Kumar, learned Additional Government
Advocate for the respondent Nos.1 and 2.
Mr.Udaya Holla, learned Senior counsel for the
respondent No.3.
Mr. Sanjay H. Sethiya, learned counsel for the
respondent Nos.5 and 6.
Mr.Guruprasad, learned counsel for the respondent
Nos.7 and 8.
In this intra Court appeal filed under Section 4 of the
Karnataka High Court Act, 1961, the appellants have assailed
the validity of the order dated 18.11.2020 passed by the
learned Single Judge, by which the writ petition preferred by
them has been dismissed.
2. Facts leading to filing of this appeal briefly stated are
that petitioner No.1 is a proprietor of the firm namely Shree
Vinayaka Builders and Developers. An agreement namely
land assembling-cum-development agreement was executed
between the appellant No.1 and respondent No.3 namely
MICO Associates House Building Co-operative Society
(hereinafter referred to as 'the Society' for short). The
appellant No.1 under the agreement collected an amount of
Rs.31.75 Crores and promised to ensure that the lands are
sold in favour of the Society. However, the appellant No.1
failed to carry out his obligations under the agreement and
paid to the Society only a sum of Rs.12,19,13,000/-. The
Society thereupon raised a dispute on 24.10.2016 under
Section 70(2)(e) of the Karnataka Co-operative Societies Act,
1959 (hereinafter referred to as 'the Act' for short). The
Joint Registrar of the Co-operative Societies (JRCS), by an
award dated 28.04.2017 directed the appellant No.1 to pay a
sum of Rs.17,57,87,000/- with interest at the rate of 18%
p.a. and Rs.3 Crores as damages.
3. The appellant challenged the award dated
28.04.2017 passed by JRCS in a writ petition namely
W.P.No.26288-328/2017 which was partly allowed by an
order dated 23.08.2017 and an order was passed which was
subject to terms and conditions mentioned therein. The
learned Single Judge inter alia held that appellant No.1 needs
to be granted an opportunity to participate in the proceeding
by cross-examining the witnesses produced by the Society as
well as to lead the evidence. The award dated 28.04.2017
passed by JRCS was quashed and it was made clear that if
the appellant No.1 fails to deposit a sum of Rs.2 Crores
before the Society within two months from the date of order
and fails to produce the receipt before the JRCS, the
petitioner will not be entitled to the benefit of this order. The
Society was also granted liberty to proceed with the
execution proceeding to implement the award passed by
JRCS on 28.04.2017 in case of default by the petitioner in
depositing the amount. It is not in dispute that the
petitioner did not deposit the amount of Rs.2 Crores within
two weeks.
4. Thereafter, the appellant No.1, after expiry of the
period prescribed in the order dated 28.04.2017 filed an
application on 15.03.2018 seeking extension of time to
deposit the amount. It appears that the appellant No.1 had
purchased certain properties in the name of his wife namely
appellant No.2 and therefore, auction in respect of properties
of appellant No.2 was held for satisfying the award passed by
JRCS dated 28.04.2017. The appellant No.2 thereupon filed
a writ petition namely W.P.Nos.13394/2018 and 12344/2018
in which the wife of the appellant No.1 sought stay of the
auction in respect of her properties. An interim order was
granted in the aforesaid writ petition on 21.03.2018 wherein
appellant No.1 agreed to pay a sum of Rs.2 Crores in two
installments. It was stated on behalf of the appellants that
Rs.1.75 Crores shall be deposited on 21.03.2018 itself and
balance amount of Rs.25 lakhs shall be deposited on or
before 26.03.2018. In the said interim order, it was made
clear that in case the amount is not paid, the order of stay
shall stand vacated.
5. The appellant No.1 deposited a sum of Rs.2 Crores
in compliance of the order dated 21.03.2018 and filed a
compliance affidavit on 23.04.2018. It is pertinent to note
that a deposit of Rs.2 Crores was made by the appellant No.1
in compliance of the interim order passed in the petition by
appellant No.2 namely the wife. However, the appellant No.1
did not deposit the amount as directed vide order dated
28.08.2017 passed in W.P.No.26288-328/2017.
6. The application seeking extension of time filed by
the appellant No.1 in W.P.No.26288-328/2017 came up for
hearing before a Bench of this Court on 13.11.2018 and on a
proposal being made by a Bench of this Court to the counsel
for parties, they agreed that they are willing to refer the
dispute to arbitration and thereupon, Justice Patri Basavana
Goud was appointed as an Arbitrator to resolve the dispute
between the parties. Similar order was passed in the writ
petition preferred by the appellant No.2 namely the wife of
appellant No.1. The Society, on 09.02.2019, filed the claim
statements before the Arbitrator. The appellants filed their
statement of defense. The appellant No.1 thereafter filed an
application seeking to implead third parties who were not
parties to the arbitration agreement. The Arbitrator passed
an order on 09.05.2020 terminating the arbitration
proceeding under Section 32(2)(c) of the Act.
7. The appellants thereafter filed a writ petition in
which a writ of mandamus was sought against respondent
Nos.1 and 2 to restitute the schedule properties sold in
favour of auction purchasers way back in 21.06.2018,
18.07.2018 and 09.07.2018 pursuant to the award dated
28.04.2017 passed by the JRCS. The learned Single Judge,
by order dated 18.11.2020, has dismissed the writ petition.
In the aforesaid factual background, this appeal has been
filed.
8. Learned counsel for the appellant submitted that
once reference was made with the consent of parties to the
Arbitrator, the relief could be sought only before the
Arbitrator. It is further submitted that if there are two
executable orders which exist inter se parties, the later order
shall prevail. It is also submitted that the appellants have
filed an application for clarification of the order which is
pending before the learned Single Judge. It is therefore
urged that the matter be remitted to the learned Single
Judge or the appellants be permitted to withdraw the
petition. In support of aforesaid submission, reliance has
been placed on the decision of the Supreme Court in
'P.ANAND GAJAPATHI RAJU AND OTHERS Vs.
P.V.G.RAJU (DEAD) AND OTHERS' (2000) 4 SCC 539
and decision of Kerala High Court in 'M.KUNHIRAMA
KURUP AND OTHERS Vs. MAYYARATH KRISHNAN
KURUP AND OTHERS' AIR 1987 KER 13.
9. On the other hand, learned Senior counsel for the
respondent has submitted that the relief sought for by the
appellants in the writ petition could not have been granted
and the order passed by the learned Single Judge does not
call for any interference. It is also urged that the appellants
have already suffered an adverse order. Therefore, they
cannot be permitted to withdraw the writ petition. In support
of aforesaid submission, reliance has been placed on the
decision of the Supreme Court in 'STATE OF
MAHARASHTRA Vs. ISHWAR PIRAJI KALPATRI AND
OTHERS' (1996) 1 SCC 542, 'R.RATHINAVEL CHETTLAR
AND ANOTHER Vs. V.SIVARAMAN AND OTHERS' (1999)
4 SCC 89 AND 'K.S.BHOOPATHY AND OTHERS Vs.
KOKILA AND OTHERS' (2000) 5 SCC 458.
10. We have considered the submissions made on both
sides and have perused the record. The petitioner has
prayed for the following relief in the petition:
"i) Issue a writ of mandamus directing
respondent No.1 and 2 to restitute the schedule
properties to the petitioner No.1 by cancelling the
confirmation order at Annexure J, K and L and
sale certificates at Annexure M, N and O and sale
deeds at Annexure X and Y.
ii) direct respondent No.3 to refund the sum
of Rs.2,00,00,000 (Rupees Two Crore only) to the
petitioner No.1 by issuing a writ of mandamus or
any other order in the nature of writ."
11. Thus, it is evident that the appellants are seeking
relief of cancellation of registered sale deeds. The aforesaid
relief could not have been granted in a writ petition and can
be granted only by civil court. (See 'SATYAPAL ANAND
Vs,. STATE OF MADHYA PRADESH & ORS' (2016) 10
SCC 767. Admittedly, the appellant No.1 did not deposit an
amount of Rs.2 Crores and therefore, the conditional order
passed in the writ petition bearing No.26288-328/2017 dated
28.08.2017 did not enure to the benefit of the appellants and
therefore, in terms of the liberty granted therein, the award
dated 28.04.2017 passed by JRCS was executable. It is
pertinent to note that the award dated 28.04.2017 has not
been set aside and therefore, the same binds the appellants.
The appellant No.1 having suffered an adverse order from
the learned Single Judge cannot be permitted to withdraw
the writ petition. The learned Single Judge has taken into
account aforesaid aspects of the matter and has dismissed
the writ petition. We do not find any ground to differ with
the view taken by the learned Single Judge.
In the result, the appeal fails and is hereby dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
RV
