K L Hanumanthappa vs Karnataka State Cooperative ...
2022 Latest Caselaw 5926 Kant

                                     C.R.P.No.190/2021

                          1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 1ST DAY OF APRIL 2022

                       BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

   CIVIL REVISION PETITION NO.190/2021 (EX)

BETWEEN:

K.L. HANUMANTHAPPA
S/O LATE GARE LINGANNA
AGED 66 YEARS
R/AT NO.27, HOSABELAKU
4TH MAIN, 2ND CROSS
DOSESWAMY MUDALIAR LAYOUT
CHIKKASANDRA, BENGALURU - 560 057
                                         ... PETITIONER
(BY SMT RENUKAMBA B.P., ADVOCATE)

AND:

KARNATAKA STATE COOPERATIVE
CONSUMERS FEDERATION LIMITED
NO.4, PAMPA MAHAKAVI ROAD
CHAMARAJPET, BENGALURU - 560 018
REP. BY ITS MANAGING DIRECTOR
                                       ... RESPONDENT
(BY SRI RAVI PRAKASH, ADVOCATE)

     THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC AGAINST THE ORDER DATED 06.07.2021
PASSED IN EX.P.NO.914/2018 ON THE FILE OF THE 61ST
ADDITIONAL CITY CIVIL COURT, BENGALURU DISMISSING THE
MEMO FILED BY THE DECREE HOLDER.

      THIS PETITION COMING ON FOR FINAL DISPOSAL THIS
DAY, THE COURT, MADE THE FOLLOWING:
                                           C.R.P.No.190/2021

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                          ORDER

Aggrieved by the rejection of his claim for arrears of

subsistence allowance, the decree holder in Ex.Case

No.941/2018 on the file of the 61st Additional City Civil and

Sessions Judge, Bangalore, has preferred this petition.

2. The petitioner was serving in the respondent -

establishment as FDC. On the charges of misappropriation,

during disciplinary enquiry he was kept under suspension

for the period 12.04.2013 to 15.01.2015. Though the

respondent - Authority closed the enquiry on the ground

that misappropriated amount was remitted to the account

of the respondent, it imposed the punishment of stoppage

of annual increments.

3. Against that order, the petitioner preferred

dispute before the Assistant Registrar of Co-operative

Societies under Section 70 of the Karnataka Co-operative

Societies Act. The Assistant Registrar of Co-operative

Societies reversed the order of punishment imposed by the

respondent and directed to restore his increments due

from November, 2015 till his retirement with interest at

12% per annum. He also directed the respondent for C.R.P.No.190/2021

refund of the amount recovered from the salary of the

petitioner.

4. Both the petitioner and the respondent

challenged the order of the Assistant Registrar of

Co-operative Societies before the KAT in Appeal

No.264/2017 and 245/2017. By the judgment dated

23.08.2018 the KAT partly allowed the appeal of the

petitioner and dismissed the appeal of the respondent. The

respondent was directed to pay interest of 9% on the

arrears of salary of the petitioner for the period from

12.04.2013 to 05.01.2015.

5. As the same was not paid to the decree holder,

he filed a memo of calculation. The Executing Court by the

impugned order rejected the memo on the ground that the

respondent has paid the arrears of salary for the entire

period with interest, therefore the petitioner is not entitled

for subsistence allowance. The Executing Court further

held that if such payment is allowed, that amounts to

double payment.

C.R.P.No.190/2021

6. The only question was whether the subsistence

allowance was paid to the petitioner. To substantiate the

contention that the subsistence allowance was not paid

learned counsel for the petitioner has submitted certified

copies of the deposition of respondent's witnesses, written

arguments filed by the respondents before Assistant

Registrar of Co-operative Societies.

7. The respondent contended that it paid the

entire subsistence allowance on 27.03.2015 and therefore,

the burden is on the respondent to establish that. Except

for production of xerox copies of petty cash book,

respondent did not produce any evidence before the

Executing Court.

8. The respondent in the Dispute before the

Assistant Registrar of Co-operative Societies, submitted its

evidence by way of affidavit on 16.01.2017. In paragraph

No.3 of the said affidavit, the respondent has

unequivocally admitted that it has not paid the subsistence

allowance from the date of order of suspension in view of

the undertaking by the petitioner and that he was

consequently reinstated.

C.R.P.No.190/2021

9. Further, the respondent filed its written

arguments before the Assistant Registrar of Co-operative

Societies on 16.05.2017 in the same dispute. In the said

written arguments, the respondent has reiterated what

was stated in the affidavit of the respondent by way of

evidence. In light of such unequivocal admission made on

oath by the respondent, no credence can be given on the

copies of cash book and audit reports.

10. In the memo of calculation submitted by the

respondent before executing Court, it has given deduction

to Rs.2,12,971/- as the amount already paid which was

due from the period April 2013 to May 2013. The

executing Court accepted that without considering

admissions of the respondent during the course of

proceedings before Assistant Registrar of Co-operative

Societies.

      11.    Therefore,         the       impugned         order      is

unsustainable in law. The petition is allowed.                       The

impugned order is hereby set aside. Respondent shall

deposit Rs.1,24,888/- before the trial Court with interest C.R.P.No.190/2021

thereon at 9% p.a. from April 2015 till the date of deposit

within four weeks from the date of receipt of copy of this

order.

Sd/-

JUDGE

VP/pgg