Karnataka High Court
Shri Najir Ahmad S/O Ahmad S/O Kasimsab vs The Joint Registrar Of Co Operative ... on 8 December, 2023
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NC: 2023:KHC-D:14411
WP No. 106666 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 106666 OF 2023 (CS-RES)
BETWEEN:
SHRI NAJIR AHMAD S/O. KASIMSAB
AGE: 55 YEARS, OCC: BUSINESS,
R/O. NEAR RELIANCE TOWER,
KENI ROAD, ANKOLA, TQ. ANKOLA,
DIST. UTTARA KANNADA, PIN 581314.
...PETITIONER
(BY SRI. HEMANTHKUMAR L. HAVARAGI, ADVOCATE)
AND:
1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
RULE 441, DISPUTE PANCHYAT OFFICER,
OF K.S.C.U.B.F, LTD, REGIONAL OFFICE,
#62, 2ND FLOOR, MARGOSA ROAD,
3RD MAIN, 18TH CROSS, PIPELINE ROAD,
MALESWARAM, BENGALURU-560055.
2. THE MANAGER
Digitally signed
by
SUPRABHATA CREDIT SOUHARDA SAHAKARI LTD,
MOHANKUMAR
MOHANKUMAR B SHELAR
B SHELAR
Date:
2023.12.13
TQ: ANKOLA, CO-OPERATIVE BANK LTD,
TQ. ANKOLA, DIST: UTTARA KANNADA,
11:14:42 +0530
PIN-581314.
3. SHRI. ADHAMKHAN MAHAMMAD KHAN
AGE: 59 YEARS, OCC: BUSINESS,
R/O. GUDIGARA GALLI, ANKOLA,
TQ: ANKOLA, DIST. UTTARA KANNADA,
PIN-581314.
...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT IN THE
NATURE OF CERTIORARI TO QUASH THE IMPUGNED AWARD
BEARING NO. IN D.R.D/KA.RAA.SOU.SAM.SA/6550/2018-19 DATED
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NC: 2023:KHC-D:14411
WP No. 106666 of 2023
02-11-2020, VIDE ANNEXURE-E, PASSED BY THE RESPONDENT NO.
1, AND IMPUGNED FURTHER PROCEEDINGS DATED 13-12-2022 IN
C. C. NO. 133/2022 (ARISING OUT OF PCR NO. 146/2018 DATED
04-09-2018), PENDING BEFORE THE SENIOR CIVIL JUDGE AND JMFC
COURT ANKOLA, VIDE ANNEXURE-H.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Learned High Court Government Pleader
accepts notice on behalf of respondent No.1.
2. Heard learned counsel appearing for the
petitioner and the learned HCGP appearing for the
respondent No.1.
3. The petitioner is questioning the award under
Section 39 of the Karnataka Souharda Sahakari Act, 1997
('the Act', for short) and also the proceeding in Execution
Case No.17/2021 on the file of the Senior Civil Judge,
Ankola. The petitioner is also questioning the proceeding
before the JMFC, Ankola under Section 138 of the
Negotiable Instruments Act, 1881 ('N.I. Act' for short).
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4. Admittedly, the petitioner is the borrower under
the 2nd respondent. The 2nd respondent is governed by the
Act. The 2nd respondent initiated recovery proceeding
against the petitioner under Section 39 of the Act. The
Arbitrator passed an award against the petitioner. The 2nd
respondent-Institution initiated execution proceeding
pursuant to the award. The institution also initiated a
proceeding under Section 138 of the N.I. Act on the
premise that the cheque issued by the petitioner is
dishonoured.
5. The petitioner is before this Court challenging
the award as well as the execution proceeding and the
proceeding initiated under Section 138 of the N.I. Act. The
petitioner is before this Court on the premise that the
borrower cannot initiate parallel proceeding to recover the
amount by filing execution petition and a complaint under
Section 138 of the N.I. Act.
6. This Court is unable to accept the contention of
the petitioner. The law provides both civil remedy and a
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remedy under Section 138 of the N.I. Act. The remedy
provided under the provisions of N.I. Act is an additional
remedy to the remedy under the provisions of the Act.
7. The execution proceeding is initiated pursuant
to the award passed under the Act. Though, the award is
questioned before this Court, it is relevant to note that the
award under Section 39 of the Act marked at Annexure-E
is also appealable under the provisions of the Act.
8. Learned counsel for the petitioner to support his
contention would place reliance on the notification dated
06.09.2018 issued by the Ministry of Finance and the
notification dated 28.01.2003 issued by the Ministry of
Finance and Company Affairs, Department of Economic
Affairs. This Court has referred to the aforementioned
notifications. In the notification dated 06.09.2018,
pecuniary jurisdiction to the Debt Recovery Tribunal is
enhanced from Rs.10 lakhs to 20 lakhs. The proceeding
initiated by respondent No.2 is not governed by the
provisions of the Debt Recovery Tribunal Act. It is also
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relevant to note that the 2nd respondent is governed by
the provisions of the Act. Hence, the notification dated
06.09.2018 does not come to the aid of the petitioner.
9. The notification dated 28.01.2003 is the
notification bringing the co-operative bank within the
ambit of The Securitisation and Reconstruction of Financial
Assets and Enforcement of Securities Interest Act, 2002
('the SARFAESI Act' for short). Prior to the notification, the
co-operative institutions were not coming into the purview
of the aforementioned SARFAESI Act. Inclusion of co-
operative societies within the ambit of the SARFAESI Act
does not come to the aid of the petitioner to challenge the
award passed under Section 39 of the Act. The jurisdiction
of the appellate authority under the Act is not taken away
in view of the notification dated 28.01.2003. The
jurisdiction of the authority to entertain a dispute under
Section 39 of the Act is also not taken away under the
notification dated 28.01.2003.
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10. Learned counsel for the petitioner would also
place reliance on the judgment of the Apex Court in the
case of Panduran Ganapati Chougule in Civil Appeal
No.5674/2009.
11. In the aforementioned judgment, the Apex
Court has decided the constitutional validity of the
amendment bringing the co-operative societies under the
ambit of the SARFAESI Act. The said judgment does not
deal with the jurisdiction of the appellate authority under
the Act.
12. For the aforementioned reasons, this Court is of
the view that there is no merit in the petition. Hence, the
petition is dismissed.
Sd/-
JUDGE
