Karnataka High Court
Shri Basavaraj S/O Pandurang Kadam vs Shri Shivaraj S/O Veerabhadrappa ... on 29 February, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:4692
WP No. 105390 of 2023
C/W WP No. 105247 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO.105390 OF 2023 (GM-CON)
C/W
WRIT PETITION NO.105247 OF 2023
IN WP NO. 105390 OF 2023
BETWEEN:
SHRI BASAVARAJ S/O. PANDURANG KADAM,
AGE: 42 YEARS, OCC: GENERAL MANAGER,
R/O. NAGASHREE BUILDING, BRTS BUS STOP,
NEAR TOLL-NAKA, P.B. ROAD,
DIST: DHARWAD - 580001.
...PETITIONER
(BY SRI VENKATESH M. KHARVI, ADVOCATE)
AND:
1. SMT. PARVATEVVA
W/O. VEERABHADRAPPA BASAVARADDI,
BHARATHI AGE: 56 YEARS, OCCN: GENERAL MANAGER,
HM R/O. KAMAKSHI GENERAL STORES,
Digitally signed by
BHARATHI H M
II MAIN ROAD, NARAYANAPUR,
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
DHARWAD - 580008.
Date: 2024.03.05
14:50:53 +0530
2. SHRI K. RAJUGOUDA,
AGE: 50 YEARS, OCC: M.D./CHAIRMAN,
KALABHAIRAVAVESHWARA KRUPA
CREDIT SOUHARDA SAHAKARI NIYAMIT,
NEAR HEAD POST OFFICE,
U.B. HILL, DHARWAD - 580001.
3. THE MANAGER,
KALABHIARESHWARA KRUPA
CREDIT SOUHARDA SAHAKARI NIYAMIT,
NEAR HEAD POST OFFICE,
U.B. ROAD HILL, DHARWAD - 580001.
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NC: 2024:KHC-D:4692
WP No. 105390 of 2023
C/W WP No. 105247 of 2023
4. SHRI K. KANTHARAJU,
AGE: 49 YEARS, OCC: DIRECTOR OF
KALABHIARESHWARA KRUPA CREDIT
SOUHARDA SAHAKARI NIYAMIT,
R/O. KEBBANAHALLI, TQ: KRISHNARAJ PETH,
DIST: MANDYA - 571426.
5. B.K. REKHA,
AGE: 44 YEARS, OCC: DIRECTOR OF
KALABHIARESHWARA KRUPA CREDIT
SOUHARDA SAHAKARI NIYAMIT,
R/O. KEBBANAHALLI,
TQ: KRISHNARAJ PETH,
DIST: MANDYA - 571426.
6. SHRI K. VINAYAGOUDA,
AGE: 40 YEARS, OCC: DIRECTOR OF
KALABHIARESHWARA KRUPA CREDIT
SOUHAR SHAKARI NIYAMIT,
R/O. KEBBANAHALLI,
TQ: KRISHNARAJ PETH,
DIST: MANDYA - 571426.
7. SHRI K. PRAVEEN,
AGE: YEARS, OCC: DIRECTOR OF
KALABHIARESHWARA KRUPA CREDIT
SOUHARA SAHAKARI NIYAMIT,
R/O. KEBBANAHALLI,
TQ: KRISHNARAJ PETH,
DIST: MANDYA - 571426.
...RESPONDENTS
(BY SRI DINESH M.KULKARNI, ADVOCATE FOR R1;
GANGADHAR S. HOSAKERI, ADVOCATE FOR R2:
NOTICE TO R3 TO 7-DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT/ORDER/DIRECTION IN WAY OF CERTIORARI TO QUASHED
ORDER PASSED HON'BLE DISTRICT CONSUMER REDRESSAL FORUM,
DHARWAD IN EXECUTION PETN NO.56/2018 DATED 07/07/2023
VIDE ANNEXURE-H IN THE INTEREST OF JUSTICE AND EQUITY.
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NC: 2024:KHC-D:4692
WP No. 105390 of 2023
C/W WP No. 105247 of 2023
IN WP NO.105247 OF 2023
BETWEEN:
SHRI BASAVARAJ S/O. PANDURANG KADAM,
AGE: 42 YEARS, OCC: GENERAL MANAGER,
R/O. NAGASHREE BUILDING, BRTS BUS STOP,
NEAR TOLL-NAKA, P.B. ROAD,
DIST: DHARWAD - 580001.
...PETITIONER
(BY SRI VENKATESH M. KHARVI, ADVOCATE)
AND:
1. SHRI SHIVARAJ S/O. VEERABHADRAPPA BASAVARADDI,
AGE: 56 YEARS, OCCN: M.D/ CHAIRMAN,
R/O. KALABHAIRAVAVESHWARA KRUPA CREDIT
SOUHARDA SAHAKARI NIYAMIT,
NEAR HEAD POST OFFICE,
U.B. HILL, DHARWAD - 580001.
2. SHRI K. RAJUGOUDA,
AGE: 56 YEARS, OCC: M.D./CHAIRMAN,
KALABHAIRAVAVESHWARA KRUPA CREDIT SOUHARDA
SAHAKARI NIYAMIT, NEAR HEAD POST OFFICE,
U.B. HILL, DHARWAD - 580001.
3. THE MANAGER,
KALABHAIRESHWAR KRUPA CREDIT
SOUHARDA SAHAKARI NIYAMIT,
NEAR HEAD OFFICE, U.B. ROAD HILL,
DHARWAD - 580001.
4. SHRI K. KANTHRAJU,
AGE: 55 YEARS, OCC: DIRECTOR OF
KALABHIARESHWARA KRUPA CREDIT
SOUHARA SHAKARI NIYAMIT,
R/O. KEBBANAHALLI,
TQ: KRISHNARAJ PETH,
DIST: MANDYA - 571426.
5. B.K. REKHA,
AGE: 50 YEARS, OCC: DIRECTOR OF
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NC: 2024:KHC-D:4692
WP No. 105390 of 2023
C/W WP No. 105247 of 2023
KALABHAIRESHWAR KRUPA CREDIT
SOUHARDA SAHAKARI NIYAMIT,
R/O. KEBBANAHALLI,
TQ: KRISHNARAJ PETH,
DIST: MANDYA - 571426.
6. SHRI K. VINAYAGOUDA,
AGE: 46 YEARS, OCC: DIRECTOR OF
KALABHIARESHWARA KRUPA CREDIT
SOUHARA SHAKARI NIYAMIT,
R/O. KEBBANAHALLI,
TQ: KRISHNARAJ PETH,
DIST: MANDYA - 571426.
7. SHRI K. PRAVEEN,
AGE: 45 YEARS, OCC: DIRECTOR OF
KALABHIARESHWARA KRUPA CREDIT
SOUHARA SHAKARI NIYAMIT,
R/O. KEBBANAHALLI,
TQ: KRISHNARAJ PETH,
DIST: MANDYA - 571426.
...RESPONDENTS
(BY SRI DINESH M.KULKARNI, ADVOCATE FOR R1;
GANGADHAR HOSAKERI, ADVOCATE FOR R2;
NOTICE TO R3 TO R7-DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT/ORDER/DIRECTION IN WAY OF CERTIORARI TO QUASHED
ORDER PASSED HON'BLE DISTRICT CONSUMER REDRESSAL FORUM,
DHARWAD IN EXECUTION PETN NO.55/2018 DATED 07/07/2023
VIDE ANNEXURE-H IN THE INTEREST OF JUSTICE AND EQUITY.
THESE PETITIONS ARE COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 105390 of 2023
C/W WP No. 105247 of 2023
ORDER
1. Both these writ petitions are filed between
same parties except respondent no.1. Since they involve
similar facts, contentions and relief sought, they were
clubbed together and taken up for disposal. To avoid
repetition, facts in only W.P.no.105390/2023 would be
recited.
2. Writ petition is filed seeking for following reliefs.
a) Issue a writ/order/direction in way of certiorari
to quashed order passed Hon'ble District
Consumer Redresal Forum, Dharwad in
Execution Petition No.56/2018 dated
07.07.2023 vide Annexure-H, in the interest of
justice and equity.
b) Issue any other writ or order which this Hon'ble
Court deems fit in the facts and circumstance
of the case.
3. Sri Venkatesh Kharvi, learned counsel for
petitioner submitted that petitioner resident of
Narayanapur, Dharwad was appointed as General Manager
in respondent no.2-Society namely Kalbaireshwara Krupa
Credit Souhardha Niyamit situated near Head Post Office,
U.B Hill Dharwad. It was submitted that on 29.12.2015,
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petitioner resigned from post for personal reasons. It was
submitted that letter of resignation was accepted by
Chairman as per Annexure-B. It was submitted respondent
no.1, who claims to be retired employee had deposited a
sum of Rs.8,35,000/- with respondent no.2-Society on
promising exorbitant rate of interest. Since he intended to
purchase a plot for construction of house. Subsequently,
when amount was sought to be withdrawn but not
released, respondent no.1 filed omplaint before Dharwad
District Consumer Disputes Redressal Forum Dharwad in
Complaint no.199/2017. It was submitted, for respondents
no.2 to 7 despite service of notice, respondents arrayed in
petition remained absent and complaint proceeded against
exparte and ultimately, an order for payment of
Rs.8,35,000/-with assured rate of interest apart from
Rs.20,000/- as compensation was ordered on 19.06.2018
as per Annexure-D. It was submitted, E.P.No.56/2018 was
filed before District Consumer Disputes Redressal Forum at
Dharwad, necessary action against Judgment Debtor (for
short 'J.Dr') under Section 27 of Consumer Protection Act
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was also sought. In said petition, non-bailable warrant was
issued against respondents no.2 to 7 wherein,
respondent/J.Dr no.2 was Manager of Society.
4. Upon description of petitioner as Manager of
Society, Executing Court was mislead by same had
ordered issuance of NBW against petitioner. Even though,
petitioner was not a party to original complaint
proceedings, on an application filed by respondent no.1-
decree holder under Section 151 of Code of Civil Procedure
for issuance of non-bailable warrant against J.Dr no.2 in
name of Basavaraj P.Kadam, Executing Court issued NBW
against petitioner. Petitioner filed objections to said
application. However, under impugned order, petitioner's
objection is rejected and application is allowed. It was
submitted that a perusal of Annexure-D, order passed by
District Consumer Disputes Redressal Forum, Dharwad in
original complaint would indicate that description of
respondent no.2 is only Manager, Kalabhairaveshwar
NC: 2024:KHC-D:4692
Krupa Credit Souharda Sahakari Niyamit, Near Head Post
Office, U.B.Halli, Dharwad.
5. It was submitted that as per Identity Card
issued by respondent no.2-Society, petitioner was General
Manager. It was submitted that even as per Audit Report
for months of February and March-2015, petitioner was
referred to as General Manager. It was further submitted
that in Crime no.161/2017 registered by Sub Urban Police
Station, Dharwad, for offence under Sections 406, 409,
420 read with Section 34 of Indian Penal Code and Section
9 of Karnataka Protection of Interest of Depositors in
Financial Establishments Act, 2004, petitioner was
described as General Manager. Therefore, order passed by
Executing Court for issuance of NBW against petitioner
would be unsustainable and sought for its quashing.
6. It was submitted, even ground that petitioner
had retired from respondent no.2-Society on 29.12.2015
whereas complaint was filed by respondent no.1 in year
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2018, would also be sufficient to hold that petitioner was
not liable to answer claims of respondent no.1.
7. On other hand, Sri Dinesh M.Kulkarni, learned
counsel appearing for respondent no.1-complainant and
Sri Gangadhar Hosakeri, learned counsel appearing for
respondent no.2 sought to oppose writ petition. It was
submitted, though contention now sought to be urged was
that petitioner was not working as Manager at relevant
time, it was submitted said contention was not urged in
appeal filed against original order passed by District
Consumer Disputes Redressal Forum. It was submitted,
even if such contentions were taken, order passed by
State Commission in Appeal filed by petitioner herein
would bind petitioner. As such, petitioner would be liable
to answer claim of respondent no.1. It was submitted in
affidavit filed before State Commission in support of
application for condonation of delay as well as in cause
title of Memorandum of Appeal, petitioner had described
himself as Manager of respondent no.2. Therefore, there
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was no gain say in petitioner urging such contention at
this belated stage that too in execution proceedings. On
above grounds, learned counsel sought for dismissal of
petition.
8. Heard learned counsel for petitioner and
perused writ petitions records.
9. From above, it is seen that subject matter of
controversy between parties herein is whether District
Forum was justified in issuance of non-bailable warrant
against petitioner herein even though, he would not
arrayed as party to complaint. There is no dispute about
fact that respondent no.1 had filed complaint alleging
deficiency of service against respondent no.2/Co-operative
Credit Society and its office bearers.
10. While Chairman and Directors have been
arrayed in persons, respondent no.2 is merely described
by official designation i.e., Manager of Co-operative Credit
Society.
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11. A perusal of order passed by District Forum
would indicate that on examination of material, District
Forum had allowed complaint and directed respondent
jointly and severally to pay sum of Rs.3,00,000/- with
assured rate of interest. District Forum also directed
payment of compensation of Rs.10,000/- towards mental
agony and hardship and Rs.2,000/- towards cost. Though
even Execution Petition filed for executing said order
would described respondent no.2 by official designation,
subsequently respondent no.1 has filed application for
issuance of non-bailable warrant against petitioner. Prior
to that, on 17.01.2020, petitioner herein had preferred
appeal against order passed by District Forum before
District Consumer Disputes Redressal Forum. In said
appeal, petitioner had described himself as Manager of
respondent no.2-Society. Appeal was dismissed on
21.11.2022 mainly on ground of being barred by
limitation. Affidavit filed in support of application for
condonation of delay would also indicate that petitioner
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had described himself as Manager of respondent no.2-
Society.
12. Therefore, regardless whether petitioner had
taken contention that he was not manager of respondent
no.2-society, fact that he had asserted to effect before
appellate forum and his appeal against original order was
rejected would be a material factor.
13. Mere description in charge-sheet filed in
ancillary criminal proceedings or in audit report, would not
be sufficient to overturn admission at hands of petitioner
himself. While passing impugned order, executing forum
has taken note of all these aspects and on finding that
objections filed by petitioner are not tenable, rejected
same and ordered issuance of non-bailable warrant. Fact
that order passed by State Commission had attained
finality, is also not in dispute.
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14. In view of above, I do not find any merit in
contentions urged by petitioner. Hence, declining
interference, writ petition is dismissed.
Sd/-
JUDGE
AM
