Karnataka High Court
Smt Shakuntala vs The Joint Registrar Of Co-Op Societies on 2 January, 2024
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WP No. 53554 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 53554 OF 2018 (CS-RES)
BETWEEN:
1. SMT SHAKUNTALA,
W/O B R SHIVASHANKAR,
AGED ABOUT 72 YEARS
OCC:HOUSE HOLD,
2. B R SHIVASHANKAR,
S/O LATE RACHAIAH,
AGED ABOUT 74 YEARS,
OCC:BUSINESS,
3. SANTHOSH,
S/O B R SHIVASHANKAR,
AGED ABOUT 41 YEARS,
OCC:BUSINESS,
Digitally 4. ANAND,
signed by S/O B R SHIVASHANKAR,
PRAMILA G V AGED ABOUT 43 YEARS,
Location: OCC:BUSINESS,
HIGH COURT
OF ALL ARE R/O H NO.10-2-58A,
KARNATAKA
SANGAMESHWARANAGAR,GULBARAGA,
GULBARGA DISTRICT, PIN-585 101.
(BENEFIT OF SENIOR CITIZEN NOT CLAIMED BY
PETITIONER NO.1 AND 2).
...PETITIONERS
(BY SRI KRISHNAPPA N R, ADVOCATE)
AND:
1. THE JOINT REGISTRAR OF CO-OP SOCIETIES
UBF (RULE-441), ABN DISPUTE,
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WP No. 53554 of 2018
NO.132, K H ROAD, BENGALURU - 560 027.
2. THE KARNATAKA INDL.CO-OP BANK LTD.,
NO.11, BULL TEMPLE ROAD,
BASAVANAGUDI, BENGALURU-560 004,
BY ITS LIQUIDATOR.
3. SRI SHARANAIAH MATHAPATHI,
S/O LATE VEERABADRAIAH,
OCC:BUSINESS,
AGED 42 YEARS,
R/O VIDYANAGAR, GULBARGA,
GULBARGA DISTRICT -585 101.
...RESPONDENTS
(BY SRI M SRINIVAS KUMAR, ADVOCATE FOR R1 AND R2,
R3 - SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER OF R-1 COURT DTD 28.2.2007 PASSED IN DISPUTE
COPY OF THE SAME IS PRODUCED AT ANNEXURE-C.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Heard the learned counsel appearing for the
petitioners and the learned counsel appearing for the
contesting respondents.
2. The petitioners are questioning the award passed
by the Arbitrator under Section 70 of the Karnataka
Co-operative Societies Act, 1959 (for short hereinafter referred
to as 'Act of 1959') as well as the judgment rendered by the
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Karnataka Appellate Tribunal in Appeal No.960/2007 on the file
of Karnataka Appellate Tribunal, Bangalore. In terms of the
impugned award at Annexure-C dated 28.02.2007, it is evident
that the Arbitrator has passed an award in favour of respondent
No.2-Bank for payment of Rs.6,69,960/- along with interest @
20% per annum from 01.04.2006 till payment. The petitioners'
challenge before the Karnataka Appellate Tribunal, Bangalore in
Appeal No.960/2007 was not successful as the application for
condonation of delay was rejected. It is borne out from the
records that there was nine months' delay in filing the
aforementioned appeal. The Appellate authority found that the
delay is not properly explained. It is also forth coming that the
petitioners also filed an application to review the said order and
Review Petition in application No.1/12 is rejected vide order
dated 28.03.2018. Though, there is no specific prayer in
questioning the order at Annexure-D, i.e., the order dismissing
the appeal as well as the order at Annexure-E, i.e., the order
dismissing the Review Petition, from the grounds urged in the
Writ Petition, it can be safely concluded that the petitioners
have also questioned the correctness of the order passed in the
appeal as well as in the Review Petition passed by the Tribunal.
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By referring to the 2nd prayer, where the petitioners have
sought omnibus relief, in the interest of justice, this Court is of
the view that the petition has to be heard, as if the challenge is
made not only to the order passed by the Arbitrator under
Section 70 of the Act of 1959, but also the petition is filed
challenging the order passed by the Appellate Tribunal
dismissing the Appeal as well as the Review Petition.
3. Learned counsel appearing for the petitioners would
submit that though the impugned award is said to have been
passed on 28.02.2007, evidence was recorded on 05.04.2007
i.e., two months after the award. Thus, he would contend that
the award is totally erroneous. These aspects have not been
considered by the Appellate Authority while deciding the
appeal, the Appellate authority also erred in dismissing the
Review Petition.
4. Learned counsel appearing for the respondents
would submit that the date mentioned in the award is wrongly
mentioned as 28.02.2007. Thus, he would contend that the
Arbitrator is justified in passing the award as there was no
challenge to the evidence lead by the petitioners.
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5. This Court has considered the contentions raised at
the bar.
6. From the order sheet which has been produced
before this Court, it is apparent that on 05.04.2007, the
evidence of the plaintiff-Bank was recorded and later the case
was adjourned to 07.05.2007. On 14.05.2007, the Arbitrator
has recorded the finding that the respondents have remained
absent. By considering the material on record, the award is
passed for recovery of Rs.6,71,960/- along with interest @
20% per annum. The correctness of the said order sheet is not
disputed by the learned counsel for the respondents. This being
the position, this Court is unable to accept the correctness of
the award dated 28.02.2007 which is prior to the recording the
evidence. Under these circumstances, the impugned award at
Annexure-C is liable to be set aside and accordingly set aside.
Since the Appellate Tribunal has not considered this aspect, the
judgment dated 15.12.2011 passed by the Appellate authority
is also set aside. Consequentially, the order passed in Review
Petition is also set aside. The matter is remitted to the 1st
respondent to proceed further in accordance with law.
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7. Petitioners shall appear before the 1st respondent-
The Joint Registrar of Co-operative Societies on 05.02.2024
without awaiting any further notice from the 1st respondent.
The 1st respondent shall issue notice to the plaintiff-Bank and
the 3rd respondent - borrower in this petition before
commencing the hearing. It is further made clear that nothing
is expressed on the merits of the matter. All contentions are
kept open.
8. Accordingly, the Writ Petition is allowed, in part.
Sd/-
JUDGE
GVP
