Karnataka High Court
Sri Bhagavathi Co-Operative Bank ... vs Vishu Kumar on 5 September, 2022
Bench: Acting Chief Justice, S Vishwajith Shetty
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
WRIT APPEAL NO.477 OF 2022 ( CS-RES)
C/W
WRIT APPEAL NO.486 OF 2022 ( CS-RES)
IN W.A.NO.477/2022
BETWEEN:
SALIL R. UCHIL
S/O RAMACHANDRA UCHIL
AGED ABOUT 45 YEARS
R/AT UCHIL HOUSE, KALPANE
KULASHEKARA PADAVU
MANGALURU-575 001
REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER
MRS. SHASHIKALA RAMACHANDRA
MANJAPPA UCHIL W/O LATE
RAMACHANDRA MANJAPPA UCHIL
AGED 68 YEARS
R/AT UCHIL HOUSE, KALPANE
KULASHEKARA PADAVU
MANGALURU-575 005
... APPELLANT
(BY SRI RAJASHEKAR S, ADVOCATE)
AND:
1. VISHU KUMAR
S/O K. GANAPATHI
AGED ABOUT 49 YEARS
R/AT NO.3-3-2713/3
"GANADEV", KADRI
-2-
KANNABETTU, POST:BEJAI
MANGALURU-575 004
2. HARISH KUMAR
S/O K. GANAPATHI
AGED ABOUT 39 YEARS
R/AT NO.3-31-2713/3
"GANADEV", KADRI
KANNABETTU, POST: BEJAI
MANGALURU-575 004
3. THE ASST. REGISTRAR OF
CO-OPERATIVE SOCIETIES
AND RECOVERY OFFICER
MANGALURU SUB DIVISION
4TH FLOOR
SCDCC BANK BUILDING
K.S. RAO ROAD, KODIYALBAIL
MANGALURU-575 003
4. SRI BHAGAVATHI
CO-OPERATIVE BANK LTD
JEPPU, MORGANSGATE
MANGALURU-575 001
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER
5. HEMA MALINI
D/O K GANAPATHI
AGED ABOUT 47 YEARS
R/AT NO.3-31-2713/3
"GANADEV", KADRI
KANNABETTU, POST:BEJAI
MANGALURU-575 004
6. PRADEEP KUMAR
S/O K. GANAPATHI
AGED ABOUT 45 YEARS
R/AT NO.3-31-2713/3
"GANADEV", KADRI
KANNABETTU, POST: BEJAI
MANGALURU-575 004
7. MOHAN RAJ M
S/O K. BABU
AGED ABOUT 43 YEARS
-3-
R/AT KPT COMPOUND
FIELD STREET
CAR STREET
MANGALURU-575 001
8. JAGADEESH
S/O VISHWANATHA
AGED ABOUT 45 YEARS
R/AT KADRI
KANNABETTU, POST: BEJAI
MANGALURU-575 004
9. DEEPAK S RAO
S/O K. SRINIVASA
AGED ABOUT 48 YEARS
R/AT KADRI, KANNABETTU
POST:BEJAI
MANGALURU-575 004
... RESPONDENTS
(BY SRI S.S.MAHENDRA, AGA FOR R-3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET
ASIDE THE ORDER DATED 17.03.2022 PASSED BY THE
LEARNED SINGLE JUDGE IN W.P.NO.42272/2019 (CS-RES)
AND IN REVERSAL OF THE SAME, DISMISS THE WRIT
PETITION AND GRANT SUCH OTHER AND FURTHER
RELIEFS AS THIS HON'BLE COURT DEEMS FIT AND
PROPER UNDER THE FACTS AND CIRCUMSTANCES OF
THE CASE.
IN W.A.NO.486/2022
BETWEEN:
SRI BHAGAVATHI
CO-OPERATIVE BANK LTD
JEPPU, MORGANSGATE
MANGALURU-575 001
NOW REPRESENTED BY ITS
BRANCH MANAGER
... APPELLANT
(BY SRI KETHAN KUMAR, ADVOCATE)
-4-
AND:
1. VISHU KUMAR
S/O K GANAPATHI
AGED ABOUT 49 YEARS
R/AT NO.3-3-2713/3
"GANADEV", KADRI
KANNABETTU, POST: BEJAI
MANGALURU-575 004
2. HARISH KUMAR
S/O K GANAPATHI
AGED ABOUT 39 YEARS
R/AT NO.3-31-2713/3
"GANADEV", KADRI
KANNABETTU
POST: BEJAI
MANGALURU-575 004
3. THE ASST. REGISTRAR OF
CO-OPERATIVE SOCIETIES AND
RECOVERY OFFICER
MANGALURU SUB-DIVISON
4TH FLOOR
SCDCC BANK BUILDING
K S RAO ROAD
KODIYALBAIL
MANGALURU-575 003
4. SALIL R UCHIL
S/O RAMACHANDRA UCHIL
R/AT UCHIL HOUSE, KALPANE
KULASHEKARA PADAVU
MANGALURU-575 001
5. HEMA MALINI
D/O K GANAPATHI
AGED ABOUT 47 YERS
R/AT NO. 3-31-2713/3
"GANADEV", KADRI
KANNABETTU, POST: BEJAI
MANGALURU-575 004
6. PRADEEP KUMAR
S/O K GANAPATHI
AGED ABOUT 45 YEARS
-5-
R/AT NO. 3-31-2713/3
"GANADEV", KADRI
KANNABETTU
POST: BEJAI
MANGALURU-575 004
7. MOHAN RAJ M
S/O K BABU
AGED ABOUT 43 YEARS
R/AT KPT COMPOUND
FIELD STREET
CAR STREET
MANGALURU-575 001
8. JAGADEESH
S/O VISHWANATHA
AGED ABOUT 45 YEARS
R/AT KADRI, KANNABETTU
POST: BEJAI
MANGALURU-575 004
9. DEEPAK S RAO
S/O K SRINIVASA
AGED ABOUT 48 YEARS
R/AT KADRI
KANNABETTU
POST:BEJAI
MANGALURU-575 004
... RESPONDENTS
(BY SRI S.S.MAHENDRA, AGA FOR R3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE HIGH COURT ACT,1961 PRAYING TO SET ASIDE THE
ORDER DATED 17.03.2022 PASSED BY THE LEARNED
SINGE JUDGE OF THIS HON'BLE COURT IN
W.P.NO.42272/2019 (CS-RES) AND IN REVERSAL OF THE
SAME, DISMISS THE WRIT PETITION AND GRANT SUCH
OTHER AND FURTHER RELIEF'S AS THIS HON'BLE COURT
DEEMS FIT AND PROPER UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE WRIT APPEALS COMING ON FOR
PRELIMINARY HEARING THIS DAY, ACTING CHIEF JUSTICE
DELIVERED THE FOLLOWING:
-6-
JUDGMENT
Sri Rajashekar S, learned counsel for the
appellant in W.A.No.477/2022.
Sri Kethan Kumar, learned counsel for the
appellant in W.A.No.486/2022.
Sri S.S.Mahendra, learned Additional
Government Advocate for respondent No.3 in both
the appeals.
These intra Court appeals arise out of an order
dated 17.03.2022 passed by the learned Single
Judge by which, the writ petition preferred by
respondent Nos.1 and 2 has been allowed in part.
2. Sri Bhagavathi Co-operative Bank Limited
(hereinafter referred to as 'the Bank' for short) has
filed W.A.No.486/2022 whereas, the auction
purchaser namely, respondent No.3 in the writ
petition has filed W.A.No.477/2022.
3. Facts giving rise to filing of these appeals
briefly stated are that respondent Nos.1 and 2 had
availed financial assistance to the extent of
Rs.25,00,000/- from the Bank. Respondent Nos.1
and 2 committed default in repayment of the loan.
Thereupon, the proceeding for recovery of the
aforesaid amount was initiated. A sale proclamation
was issued for sale of the property of respondent
Nos.1 and 2. The appellant in W.A.No.477/2022
was the successful bidder. The aforesaid sale
proclamation was challenged by respondent Nos.1
and 2 in the writ petition before the learned Single
Judge.
4. The learned Single Judge, by an order
dated 17.03.2022, inter alia held that respondent
Nos.1 and 2 have deposited the entire amount of
Rs.25,61,400/- which was due to the Bank within
three months from the date of filing of the petition.
The learned Single Judge, therefore, recorded a
finding that there was no willful disobedience on the
part of respondent Nos.1 and 2. The learned Single
Judge was inter alia of the opinion that every
borrower should be given an opportunity to save his
immovable property. The learned Single Judge,
therefore, allowed the writ petition in part. The
interest of the auction purchaser namely, the
appellant in W.A.No.477/2022 was also taken into
account and the amount deposited by him was
directed to be refunded along with 5% solatium on
the auction amount. In the aforesaid background,
these appeals have been filed.
5. Learned counsel for the Bank submitted
that respondent Nos.1 and 2 have filed an
application under Rule 38(5)(a) of the Karnataka Co-
operative Societies Rules, 1960 before the Recovery
Officer to set aside the sale. It is submitted that the
sale could be set aside only on the ground of an
irregularity. It is further submitted that such an
application could have been filed only before
confirmation of sale. It is also submitted that the
learned Single Judge has failed to take into account
the aforesaid aspect of the matter. Learned counsel
for the auction purchaser has also supported the
submissions made by learned counsel for the Bank
and has submitted that the order passed by the
learned Single Judge deserves to be set aside.
6. We have considered the submissions
made by learned counsel for the appellants and have
perused the record.
7. Admittedly, respondent Nos.1 and 2 have
deposited the entire amount of Rs.25,61,400/-
which was due to the Bank within three months
from the date of filing of the petition. The fact that
the entire amount due to the Bank has been
deposited by respondent Nos.1 and 2 clearly
demonstrates that respondent Nos.1 and 2 had no
intention of non-payment of the amount of loan
taken by them and they were not willful defaulters.
The learned Single Judge has also taken into
account the interest of the auction purchaser and
has directed refund of the auction amount to the
- 10 -
auction purchaser along with solatium of 5%. The
aforesaid order is just and equitable and has been
passed in the peculiar facts of the case which does
not call for any interference in these intra Court
appeals.
In the result, the appeals fail and are hereby
dismissed.
Sd/-
ACTING CHIEF JUSTICE
Sd/-
JUDGE
bkv
