Karnataka High Court
Shri Lalasab S/O Nabisab Nadaf vs The Joint Registrar Of Co-Operative ... on 1 July, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
-1-
NC: 2024:KHC-D:8940
WP No. 105709 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.105709 OF 2023 (CS-RES)
BETWEEN:
SHRI LALASAB S/O NABISAB NADAF,
AGE: 41 YEARS, OCC: BUSINESS,
R/O: VIJAYANAGAR, ILKAL,
TQ: ILKAL, DIST: BAGALKOT,
PIN-587125.
... PETITIONER
(BY SRI HEMANTHKUMAR L. HAVARAGI AND
SRI MRUTYUNJAY TATA BANGI, ADVOCATES)
AND:
1. THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES (RULE 441),
DISPUTE PANCHAYAT, OFFICER OF
K.S.C.U.B.F. LTD., REGIONAL OFFICE NO.I-9/10,
DOLLARS COLONY, GOKUL ROAD,
HUBBALLI-580030.
2. THE GENERAL MANAGER,
Digitally signed
by BHARATHI
VIJAYAMAHANTESH CO-OPERATIVE BANK LTD.,
HM
Location: HIGH
COURT OF
HEAD OFFICE, HUNGUND, DIST: BAGALKOT,
BHARATHI KARNATAKA
HM DHARWAD
BENCH
Date:
PIN-587118.
2024.07.05
12:17:41
+0530
3. THE MANAGER,
VIJAYAMAHANTESH CO-OPERATIVE BANK LTD.,
ILKAL BRANCH, TQ: HUNGUND,
DIST: BAGALKOT, PIN-587118.
4. SRI. ASHIF MALIKSAB NADAF,
AGE: 48 YEARS, OCC: BUSINESS,
R/AT: NEW PLOT, DHANNUR,
TQ: HUNGUND, DIST: BAGALKIOT-587118.
5. SRI. MAHAMAD FAROOK,
AGE: 50 YEARS, OCC: BUSINESS,
R/AT: WARD NO.6, KOPPARADA PETE,
-2-
NC: 2024:KHC-D:8940
WP No. 105709 of 2023
ILKAL, TQ: HUNGUND,
DIST: BAGALKOT-587118.
6. NOORMOHAMMAD IMAMSAB RAGATI,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: VASAVANAGAR,
BEHIND SHIDHARTH SCHOOL,
ILKAL, TQ: ILKAL, DIST: BAGALKOT,
PIN-587125.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
SRI SANJAY CHANAL, ADVOCATE FOR R2 & R3;
SRI RAJASHEKHAR BURJI, ADVOCATE FOR R5;
SRI H.N. GULARADDI, ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT IN THE
NATURE OF CERTIORARI TO QUASH AN IMPUGNED ORDER ON IA
NO.1/2019 AND MAIN APPEAL NO.CO-APPEAL NO.65/2019 DATED
24/07/2023, VIDE ANNEXURE-R PASSED BY THE KARNATAKA
APPELLATE TRIBUNAL, BENGALURU AND ALLOWED AN APPEAL AND
ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel for the petitioner, learned HCGP
appearing for respondent No.1-State and learned counsel
appearing for respondent No.2 and 3 as well as learned
counsels for respondents No.5 and 6.
2. With consent of all parties, matter is taken up for
final disposal.
NC: 2024:KHC-D:8940
3. Petitioner has filed this petition seeking to quash the
impugned order dated 24.07.2023 passed on I.A.no.1/2019
and on main Co-Appeal No.65/2019 vide Annexure-R by the
Karnataka Appellate Tribunal, Bengaluru (for short, 'the
KAT').
4. It is the case of petitioner that he availed loan from
respondents No.2 and 3/Bank for purchase of Hyundai
Itachi-220 vehicle. Petitioner claims that they have closed
the loan, but the 3rd respondent did not return the original
documents. Again when the petitioner sought for personal
loan of Rs.15,00,000/-, but amount disbursed was only
Rs.2,70,000/- and not given Rs.15,00,000/- to the
petitioner. However, respondents credited with the C.C. loan
in the name of petitioner which was entirely repaid by the
petitioner. Petitioner further submits that he approached the
5th respondent for availing loan of Rs.4,00,000/- and taken a
loan form in the year 2016, for which respondent No.2/Bank
had advised the petitioner to mortgage the property in the
year 2016 believing the same petitioner mortgaged the
property before the Sub-Registrar, Hunagund and Ilkal.
NC: 2024:KHC-D:8940
Petitioner contends that he has not taken the loan form and
bank has not given any loan to him. This being the state of
affairs, respondent No.2 issued public auction notice on
30.12.2016. Petitioner questioned and challenged the same
before this Court in Writ Petition No.101010/2017. Initially in
the said petition stay was granted subject to deposit of 25%
of the amount due. Thereafter, this Court dismissed the writ
petition as it was withdrawn by seeking leave to challenge
the same by way of filing an appeal, such liberty was
reserved and petition came to be disposed off. Thereafter,
petitioner preferred an appeal before the KAT in Appeal
No.65/2019 challenging the award passed by the 1st
respondent in Arbitration Case No.155/2015-16 dated
11.08.2015. Before the appellate Tribunal, petitioner filed an
application under Section 5 of the Limitation Act to condone
the delay, objections were filed by the contesting
respondents. The application for condonation of delay filed
under Section 5 of the Limitation Act in I.A.No.1/2019 came
to be dismissed and consequently, appeal came to be
dismissed as being barred by law of limitation. In the
NC: 2024:KHC-D:8940
impugned order, the Tribunal computed the delay of 3 years,
5 months and 27 days. The 2nd respondent bank has
mentioned the delay to be 4 years, 5 months and 28 days.
Therefore, the appellate Tribunal has dismissed the appeal
without going into the merits of the matter solely on the
ground of delay. The appellate Tribunal has taken into
consideration the averments made in the application for
condonation of delay and not being satisfied with the same
and taking into consideration that one of the mortgaged
property of the petitioner has already been auctioned by the
Bank and held that no purpose would be served in condoning
the delay as the property is auctioned and respondent No.5
has purchased the property as auction purchaser in the said
appeal. Therefore, the appellate Tribunal has not taken into
consideration the averments made in the appeal and
submissions of the learned counsel for the petitioner herein
with regard to fraud, concoction of the documents,
fabrication of records and other grounds urged therein as it
dismissed the appeal solely on the ground of delay.
NC: 2024:KHC-D:8940
5. Having heard the learned counsel for both parties.
No doubt it is true that there is a delay of more than 2 years
in filing the appeal as the order came to be passed on
11.08.2015, which is an exparte order against the petitioner.
Allegations are made by the petitioner against the
respondent/Bank for mischief and fraud being committed by
misusing documents of the petitioner, fabrication of records
and concocted documents and claims that no loan was taken
and no amount was credited to his account. When such being
the serious allegations made against the Bank, the appellate
Tribunal ought to have considered the appeal on merits
rather than dismissing the appeal on the ground of delay.
6. While considering the application for delay, the
Courts have to take pragmatic view rather than taking hyper
technical approach to dismiss the appeal on the ground of
delay. It is not the number of days that requires to be seen,
but it is to be seen the cause for delay and the reasons
assigned for such causation of delay that requires to be
considered while appreciating the application for condoning
of delay. Admittedly, the petitioner had approached this
NC: 2024:KHC-D:8940
Court and obtained an interim order, but he did not deposit
the amount as ordered by this Court which continued
thereafter by way of interim order granted in the 3rd round of
litigation i.e., in this matter on 24.11.2023, where an interim
order came to be passed directing the petitioner to deposit
Rs.15,00,000/- and an order of stay was granted which
came to be extended again on 22.02.2024, but it appears till
date the petitioner has not deposited the said amount of
Rs.15,00,000/-. Though it is contended by him that he has
paid the amount through other means to Bank, but it is
adjusted, that aspect cannot be gone into by this Court by
getting into the factual matrix of the matter, how much
amount is paid by the petitioner, whether there is any
question of fabrication of records, fraud or otherwise.
Admittedly, there is a judgment and award against the
petitioner though it may be an exparte order, whether or not
the petitioner is liable to pay and whether there is any
substance in the contentions and arguments put forth by the
petitioner against the Bank, whether the Bank is liable to
recover any amount in the form of loan given to the
NC: 2024:KHC-D:8940
petitioner will have to be decided by the Tribunal by properly
examining all the materials which would be placed before it
by either side.
7. This Court sitting in the writ jurisdiction cannot
venture to examining factual aspect and conduct a rowing
enquiry. Coming back to the issue of condonation of delay,
the Hon'ble Apex Court in the case of Esha Bhattacharjee
vs. Managing Committee of Raghunathpur Nagar
Academy and Others, reported in (2013) 12 SCC 649 has
held in paragraph No.21 that Courts would have to take
pragmatic view to provide an opportunity and hear the
matter rather than taking hyper technical approach
especially where there is no huge or humongous delay.
8. In the present case, the appellate Tribunal having
gone into the merits ought to have condoned the delay and
decided the matter on merits. Under the circumstances, I
pass the following :
ORDER
(i) Petition is disposed of.
NC: 2024:KHC-D:8940
(ii) The impugned order dated 24.07.2023
passed in Co-Appeal No.65/2019 by the
Karnataka Appellate Tribunal vide Annexure-
R is hereby set aside.
(iii) The matter is remitted back to the appellate
Tribunal to consider the matter afresh in a
time bound manner not later than six
months from the date of receipt of copy of
this order.
(iv) This Court had directed the petitioner to
deposit Rs.15,00,000/- by way of an interim
order, it is not deposited till date, he shall
deposit the same before the appellate
Tribunal within a period of four weeks from
the date of receipt of copy of this order.
(v) Application I.A.No.1/2019 filed in Co-Appeal
No.65/2019 for condonation of delay is
hereby allowed subject to the applicant
making payment of Rs.15,00,000/- within a
period of four weeks.
- 10 -
NC: 2024:KHC-D:8940
(vi) The appellate Tribunal shall decide the
matter on merits by providing reasonable
opportunity to both parties.
(vii) It is made clear that this Court has not
expressed any opinion on the merits of the
matter.
(viii) The appellate Court shall deal with the case
independently without being influenced by
any observation or opinion expressed by this
Court.
(ix) All contentions are kept open.
(x) The bank shall proceed further in the matter
in accordance to law in case of default in
payment of the amount of Rs.15,00,000/-
within the specified time stated
hereinabove.
(xi) Petitioner is at liberty to move application
for stay or direction which would be
considered independently and expeditiously.
- 11 -
NC: 2024:KHC-D:8940
(xii) Since both parties are present before this
Court, party shall appear before the
appellate Tribunal on 22.07.2024 without
awaiting any notice from either the Tribunal
or by this Court.
(xiii) In view of disposal of the main matter, all
applications pending would not survive for
consideration same pale into insignificance.
Sd/-
JUDGE
CKK
CT:BCK
