Karnataka High Court
Ilkal Urban Co-Operative Bank Ltd vs Sri Mohana S/O Yamanappa Marola on 1 July, 2024
Author: S G Pandit
Bench: S G Pandit
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WA No. 100346 of 2023
C/W WA No. 100150 of 2023, WA No.
100175 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO.100346 OF 2023 (CS-DAS)
C/W WRIT APPEAL NO.100150 OF 2023
AND WRIT APPEAL NO.100175 OF 2023
IN WRIT APPEAL NO.100346 OF 2023
BETWEEN:
CHANDRASHEKARAIAH,
S/O. SHIVPURAIAH GURUVINMATH, AGE: 47 YEARS,
OCC. BUSINESS, R/O. HANUMASAGAR VILLAGE,
TQ. KUSHTAGI, DIST. KOPPAL.
- APPELLANT
(BY SRI N.L. BATAKURKI, ADVOCATE)
AND:
1. SRI MOHANA S/O. YAMANAPPA MAROLA, AGE: 51 YEARS,
OCC. BUSINESS, R/O. WARD NO.2, BASAVANAGAR, ILKAL,
Digitally signed TQ. HUNUGUNDA, DIST. BAGALKOT-587125.
by VINAYAKA B
V
Location: HIGH 2. SMT. GEETHA W/O. MOHAN MAROLA,
COURT OF AGE: 42 YEARS, OCC. HOUSEHOLD, R/O. WARD NO.2,
KARNATAKA
BASAVANAGAR, ILKAL, TQ. HUNUGUNDA,
DIST. BAGALKOT-587125.
3. ILKAL URBAN CO-OPERATIVE BANK LTD.,
HEAD OFFICE AT ILKAL-587125, TQ.HUNUGUNDA,
DIST.BAGALKOT REPRESENTED BY ITS MANAGER.
4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
ABN DISPUTE COURT, K.S.C.U.B.F. LTD, REGIONAL OFFICE,
HUBBALLI, 1, 9/10, DOLLORS COLONY, GOKUL ROAD,
HUBBALLI-580030, DIST. DHARWAD.
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5. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
AND RECOVERY OFFICER, BAGALKOT, DIST. BAGALKOT.
6. THE TAHASILDAR,
ILKAL TQ. ILKAL, DIST. BAGALKOT.
7. THE REVENUE INSPECTOR, ILKAL,
TQ. ILKAL, DIST. BAGALKOT.
8. THE VILLAGE ACCOUNTANT, ILKAL,
TQ. ILKAL DIST. BAGALKOT.
9. SRI VENKATESH ERANNA SHIGASHETTY
S/O. ERANNA SHIGASHETTY,
AGE: 51 YEARS, OCC. BUSINESS,
R/O. WARD NO.06, KOPPARADA PETE, ILKAL,
TQ. HUNUGUNDA, DIST. BAGALKOT-587125.
10. MANOHAR SHAYAM SUNDAR DAGA,
AGE. 45 YEARS, OCC. BUSINESS,
ILKAL, TQ. ILKAL, DIST. BAGALKOT.
- RESPONDENTS
(BY SRI SADIQ N.GOODWALA, ADVOCATE FOR R1;
SRI MADANMOHAN M.KHANNUR, AGA FOR R4 TO R8;
NOTICE TO RESPONDENTS NO.2, 3, 9 AND 10 ARE SERVED)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE
FINAL ORDER DATED 23.01.2023 PASSED W.P.NO.104857/2023
(CS-DAS) AND ETC.,
IN WRIT APPEAL NO.100150 OF 2023
BETWEEN:
MANOHAR SHAYAM SUNDAR DAGA,
AGE: 45 YEARS, OCC: BUSINESS,
ILKAL, TQ. ILKAL, DIST.BAGALKOT.
- APPELLANT
(BY SRI JAGADISH PATIL, ADVOCATE)
AND:
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1. SRI MOHANA S/O. YAMANAPPA MAROLA,
AGE: 51 YEARS, OCC: BUSINESS,
2. SMT. GEETHA W/O. MOHAN MAROLA,
AGE: 42 YEARS, OCC: HOUSEHOLD,
BOTH ARE R/O. WARD NO.2, BASAVANAGAR,
ILKAL, TQ. HUNUGUNDA, DIST. BAGALKOT-587125.
3. ILKAL URBAN CO-OPERATIVE BANK LTD.,
HEAD OFFICE, AT ILKAL,
TQ. HUNUGUNDA, DIST. BAGALKOT-587125,
REPRESENTED BY ITS MANAGER.
4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
ABN DISPUTE COURT, K.S.C.U.B.F LTD.,
REGIONAL OFFICE, HUBBALLI, 1,9/10,
DOLLORS COLONY, GOKUL ROAD,
HUBBALLI-580030, DIST. DHARWAD.
5. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES AND RECOVERY OFFICER, BAGALKOT,
DIST. BAGALKOT.
6. THE TAHSILDAR,
ILKAL, TQ. ILKAL, DIST. BAGALKOT.
7. THE REVENUE INSPECTOR, ILKAL,
TQ. ILKAL, DIST. BAGALKOT.
8. THE VILLAGE ACCOUNTANT, ILKAL,
TQ. ILKAL, DIST. BAGALKOT.
9. SRI VENKATESHA ERANNA SHIGASHETTY
S/O. ERANNA SHIGASHETTY,
AGE: 51 YEARS, OCC: BUSINESS,
R/O. WARD NO.06, KOPPARADA PETE,
ILKAL, TQ. HUNUGUNDA,
DIST. BAGALKOT-587125.
10. CHANDRASHEKARAIAH S/O. SHIVPURAIAH GURUVINMATH,
AGE: 47 YEARS, OCC: BUSINESS,
R/O. HANUMASAGAR VILLAGE,
TQ. KUSHTAGI, DIST. KOPPAL.
- RESPONDENTS
(BY SRI S.B. HEBBALLI, ADVOCATE FOR R3;
SRI MADANMOHAN M.KHANNUR, AGA FOR R4 TO R8;
NOTICE TO RESPONDENT 9 IS SERVED)
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WA No. 100346 of 2023
C/W WA No. 100150 of 2023, WA No.
100175 of 2023
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE
ORDER DATED 23.01.2023 PASSED IN W.P. NO.104857/2023(CS-
DAS) AND ETC.,
IN WRIT APPEAL NO.100175 OF 2023
BETWEEN:
ILKAL URBAN CO-OPERATIVE BANK LTD.,
HEAD OFFICE, AT ILKAL, TQ. HUNUGUNDA,
DIST. BAGALKOT-587125, REPRESENTED BY ITS MANAGER.
- APPELLANT
(BY SRI S.B. HEBBALLI, ADVOCATE)
AND:
1. SRI MOHANA S/O. YAMANAPPA MAROLA,
AGE: 51 YEARS, OCC: BUSINESS,
2. SMT. GEETHA W/O. MOHAN MAROLA,
AGE: 42 YEARS, OCC: HOUSEHOLD,
BOTH ARE R/O. WARD NO.2,
BASAVANAGAR, ILKAL,
TQ. HUNUGUNDA,
DIST. BAGALKOT-587125.
3. THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
ABN DISPUTE COURT, K.S.C.U.B.F LTD.,
REGIONAL OFFICE, HUBBALLI,
1,9/10, DOLLORS COLONY, GOKUL ROAD,
HUBBALLI-580030, DIST. DHARWAD.
4. SRI VENKATESHA ERANNA SHIGASHETTY
S/O. ERANNA SHIGASHETTY,
AGE: 51 YEARS, OCC: BUSINESS,
R/O. WARD NO.06, KOPPARADA PETE,
ILKAL, TQ. HUNUGUNDA,
DIST. BAGALKOT-587125.
5. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES AND RECOVERY OFFICER, BAGALKOT,
DIST. BAGALKOT.
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6. THE TAHSILDAR,
ILKAL, TQ. ILKAL, DIST. BAGALKOT.
7. THE REVENUE INSPECTOR, ILKAL,
TQ. ILKAL, DIST. BAGALKOT.
8. THE VILLAGE ACCOUNTANT, ILKAL,
TQ. ILKAL, DIST. BAGALKOT.
9. MANOHAR SHAYAM SUNDAR DAGA,
AGE: 45 YEARS, OCC: BUSINESS,
ILKAL, TQ. ILKAL, DIST. BAGALKOT.
10. CHANDRASHEKARAIAH
S/O. SHIVPURAIAH GURUVINMATH,
AGE: 47 YEARS, OCC: BUSINESS,
R/O. HANUMASAGAR VILLAGE,
TQ. KUSHTAGI, DIST. KOPPAL.
- RESPONDENTS
(BY SRI SADIQ N.GOODWALA, ADVOCATE FOR R1-R2;
SRI MADANMOHAN M.KHANNUR, AGA FOR R3, R5 TO R8;
SRI N.L. BATAKURKI, ADVOCATE FOR R9;
NOTICE TO RESPONDENT 10 IS SERVED)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS HON'BLE
COURT BE PLEASED TO SET ASIDE THE ORDER DATED 23.01.2023
PASSED IN W.P.NO.104857/2022 (CS-DAS) AND DISMISS THE WRIT
PETITION AS DEVOID OF MERITS, IN THE INTEREST OF JUSTICE
AND ETC.,
THESE WRIT APPEALS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:
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JUDGMENT
These appeals are directed against order dated
23.01.2023 passed by the learned Single Judge in W.P. No.
104587/2022 wherein the writ petition was allowed and the
matter is remitted back to the Karnataka Appellate Tribunal for
disposal.
2. The parties to the appeal would be referred to as they
stood before the learned Single Judge. Respondents no.1 and
2 in the appeals were the petitioners and the appellants in all
the appeals were the respondents no. 2, 8 and 9.
3. Petitioners were the borrowers from the second-
respondent Co-operative Bank; for default committed by the
petitioners, second respondent Co-operative Bank initiated
recovery proceedings and accordingly award was passed
against the petitioners on 07.08.2017 for a sum of
Rs.13,37,170/- along with future interest. Challenging the said
award, petitioners filed O.S. No. 69/2019 on the file of Civil
Judge and JMFC, Hungund on 22.07.2019. Suit came to be
dismissed by judgment dated 26.07.2019 as not maintainable
in view of Sec. 118 of Karnataka Co-operative Societies
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Act,1959. Thereafter, arbitration proceedings were initiated by
the petitioners on 26.09.2019 under Arbitration & Conciliation
Act, 1996. The said proceedings were challenged by
respondent no.2-Co-op. Bank before this Court in W.P. No.
116923/2019. The said writ petition was dismissed as
withdrawn on 15.09.2022 as the petitioners undertook to
withdraw the arbitration proceedings and to approach the
Karnataka Appellate Tribunal by filing an appeal as provided
U/s 105 of the 1961 Act. Accordingly, petitioners filed appeal
before the Karnataka Appellate Tribunal on 28.10.2022
challenging the award dated 07.08.2017. Along with the
appeal, petitioners also filed an application to condone the
delay of 1757 days U/s 5 of the Limitation Act. It is stated that
the Tribunal by order dated 28.10.2022 refused to condone the
delay and consequently dismissed the appeal. Challenging the
said order of dismissal, the petitioners were before this Court in
W.P. No. 104857/2022. This Court under impugned order
dated 23.01.2023 allowed the writ petition and I.A. No. 1 filed
before the Tribunal, condoned the delay and remitted the
matter to the Karnataka Appellate Tribunal to dispose of appeal
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within an outer limit of six months with a direction to the
parties to maintain statusquo.
4. Heard Sri S.B. Hebballi, learned counsel for appellant in
W.A. No. 100175/2023, Sri Jagdish Patil, learned counsel for
appellant in W.A. No. 100170/2023, Sri N.L. Batakurki, learned
counsel for appellant in W.A. No. 100346/2023 who were
respondents no.1 and 2 before the learned Single Judge along
with learned Government Advocate for other official
respondents. Perused the writ appeal papers.
5. Learned counsel for the appellants contended that the
learned Single Judge committed grave error in condoning delay
of 1757 days in approaching the Tribunal when there is no
sufficient reason assigned by the petitioners. Further, learned
counsel for the respondents-appellants referring to the affidavit
accompanying I.A. No. 1 filed for condonation of delay, would
submit that the petitioners invoked Sec. 14 of the Limitation
Act stating that they were pursuing the matter before other
forum and therefore there is delay in approaching the Tribunal
U/s 105 of the 1961 Act.
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6. Learned counsel would further submit that, to invoke Sec.
14 of the Limitation Act, one should establish due diligence and
good faith. In the instant case, it is submitted that there is no
good faith or diligence established by the petitioners. Learned
counsel would submit that the award was passed on
07.08.2017 whereas the suit was filed on 22.07.2019, nearly
two years from the date of passing the award and there is no
explanation for the delay from 2017 to 2019. As there is no
explanation for the initial delay itself, the learned Single Judge
could not have condoned delay and remitted the matter back to
the Tribunal.
7. Further, Sri Jagdish Patil, learned counsel would submit
that wife filed a suit and on dismissal of the suit the husband
filed arbitration proceedings. Therefore he submits that there
is no bonafide in the proceedings initiated by the petitioners. It
is also submitted that the respondents no.8 and 9 have
invested huge amount in the property purchased by them and
learned counsel would also submit that sale certificate is issued
in favour of them on 11.10.2022 and on 15.10.2022
respectively. Therefore, they submit that when the sale is
concluded and sale certificate is registered, it is wholly
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unreasonable to condone delay and to remand the matter to
the Tribunal.
8. Sri Jagdish Patil and Sri S.B. Hebballi, learned counsel
would place reliance on the decisions of the Hon'ble Apex Court
in Suryachakra Power Corporation Limited Vs. Electricity
Department and Others1 and also Civil Appeal No.
7696/2021 (Majji Sannemma @ Sanyasirao Vs. Reddy
Sridevi & Ors.) decided on 16.12.2021 to buttress their
contentions.
9. Per contra, learned counsel Sri Sadiq N. Goodwala would
submit that condonation of delay is discretion of the Court and
if the Court is satisfied with the explanation and nature and
gravity of the matter, the Court could condone the delay.
Further, learned counsel would submit that in the instant case,
rights of the parties in an immovable property is involved and
under any circumstances, delay is to be construed liberally.
Further, learned counsel would also submit that the notice of
arbitration proceedings was issued which was received by
petitioners indicated appearance date as 07.08.2017. But he
(2016) 4 SCC 48
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submits that on 07.08.2017 the petitioners could not appear
before the Arbitrator and on enquiry it is found that the
proceedings itself is culminated on the same day, i.e.,
17.08.2017. There was no opportunity for the petitioners to
participate in the proceedings. Learned counsel would also
submit that the petitioners were misled and they proceeded on
the wrong advise. Thus he submits that when there is wrong
advise, the delay in preferring the appeal ought to be
condoned. Thus the learned counsel would pray for dismissing
the writ appeals filed by the respondents.
10. Having heard the learned counsel for the parties and on
perusal of the appeal papers, the only point which arises for
consideration is as to:
Whether the impugned order passed by the learned
Single Judge condoning the delay and remanding the
matter back to the Karnataka Appellate Tribunal for fresh
consideration on merit, requires interference?
11. The answer to the above point is 'in the negative' for the
following reasons.
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REASONS
12. There is no dispute with regard to the petitioners
borrowing or obtaining financial assistance from the second
respondent. It is also not in dispute that the second
respondent, for default of petitioners initiated recovery
proceedings. For non appearance of petitioners, award was
passed on 07.08.2017 directing the petitioners to pay a sum of
Rs.13,37,170/- with future interest. It is also not in dispute
that petitioners filed O.S. No. 69/2019 on 22.07.2019 which
was dismissed on 26.07.2019 as not maintainable. Thereafter,
arbitration proceedings were initiated on 26.09.2019 under
1996 Act which was challenged before this Court in W.P. No.
116923/2019. The said writ petition was dismissed as
withdrawn when the petitioners undertook to withdraw
arbitration proceedings with liberty to file appeal before the
Karnataka Appellate Tribunal. Accordingly, appeal was filed
before the Karnataka Appellate Tribunal on 28.10.2022 along
with an application U/s 5 of the Limitation Act praying to
condone delay of 1757 days in preferring the appeal. Under
impugned order dated 28.10.2022 condonation of delay
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application was rejected and consequently appeal was also
dismissed.
13. Proper remedy for the petitioners against the award
dated 17.06.2017 was to file appeal u/S 105 of 1961 Act before
the Appellate Tribunal. The proceedings initiated in O.S. No.
69/2019 as well as arbitration proceedings appears to be the
result of wrong legal advise.
14. A perusal of the affidavit filed along with I.A. No. 1 before
the Tribunal, it is stated by the first petitioner that they were
not aware that against the judgment, appeal lies before the
Tribunal. It is stated that suit was filed as advised by the local
counsel. Condonation of delay is always discretion of the
Court, but such discretion shall have to be exercised
judiciously. Court must be satisfied with the cause shown for
condonation of delay. Once the Court is satisfied with the
cause shown, then the Court could exercise its discretion and
could condone delay.
15. The Hon'ble Supreme Court has observed that primary
function of the Court is to adjudicate the dispute between the
parties and to advance substantial justice. The Court shall
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always endeavour to decide the dispute between the parties on
merit, instead of technicalities. Rules of Limitation are not
meant to destroy rights of the parties, they are meant to see
that the parties resort to seek remedy properly. The Hon'ble
Apex Court in the case of N.Balakrishna Vs.
M.Krishnamurthy2 while considering condonation of delay U/s
5 of the Limitation Act, at paragraph nos.8 to 13 has observed
as follows:
"8. The appellant's conduct does not on the whole
warrant to castigate him as an irresponsible litigant. What he
did in defending the suit was not very much far from what a
litigant would broadly do. Of course, it may be said that he
should have been more vigilant by visiting his advocate at
short intervals to check up the progress of the litigation. But
during these days when everybody is fully occupied with his
own avocation of life an omission to adopt such extra vigilance
need not be used as a ground to depict him as a litigant not
aware of his responsibilities, and to visit him with drastic
consequences.
9. It is axiomatic that condonation of delay is a matter of
discretion of the court Section 5 of the Limitation Act does not
say that such discretion can be exercised only if the delay is
within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion.
Sometimes delay of the shortest range may be uncondonable
(1998) 7 SCC 123
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due to want of acceptable explanation whereas in certain other
cases delay of very long range can be condoned as the
explanation thereof is satisfactory. Once the court accepts the
explanation as sufficient it is the result of positive exercise of
discretion and normally the superior court should not disturb
such finding, much less in reversional jurisdiction, unless the
exercise of discretion was on whole untenable grounds or
arbitrary or perverse. But it is a different matter when the first
cut refuses to condone the dela. In such cases, the superior
cut would be free to consider the cause shown for the delay
afresh and it is open to such superior court to come to its own
finding even untrammeled by the conclusion of the lower court.
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the
dispute between the parties and to advance substantial justice.
Time limit fixed for approaching the court in different situations
in not because on the expiry of such time a bad cause would
transform into a good cause.
11. Rules of limitation are not meant to destroy the right of
parties. They are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly. the object of
providing a legal remedy is to repair the damage caused by
reason of legal injury. Law of limitation fixes a life-span for
such legal remedy for the redress of the legal injury so
suffered. Time is precious and the wasted time would never
revisit. During efflux of time newer causes would sprout up
necessitating newer persons to seek legal remedy by
approaching the courts. So a life span must be fixed for each
remedy. Unending period for launching the remedy may lead
to unending uncertainty and consequential anarchy. Law of
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limitation is thus founded on public policy. It is enshrined in
the maxim Interest reipublicae up sit finis litium (it is for the
general welfare that a period be putt to litigation). Rules of
limitation are not meant to destroy the right of the parties.
They are meant to see that parties do not resort to dilatory
tactics but seek their remedy promptly. The idea is that every
legal remedy must be kept alive for a legislatively fixed period
of time.
12. A court knows that refusal to condone delay would result
foreclosing a suitor from putting forth his cause. There is no
presumption that delay in approaching the court is always
deliberate. This Court has held that the words "sufficient
cause" under Section 5 of the Limitation Act should receive a
liberal construction so as to advance substantial justice
vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC
575] and State of West Bengal Vs. The Administrator, Howrah
Municipality [AIR 1972 SC 749].
13. It must be remembered that in every case of delay there
can be some lapse on the part of the litigant concerned. That
alone is not enough to turn down his plea and to shut the door
against him. If the explanation does not smack of mala fides or
it is not put forth as part of a dilatory strategy the court must
show utmost consideration to the suitor. But when there is
reasonable ground to think that the delay was occasioned by
the party deliberately to gain time then the court should lean
against acceptance of the explanation. While condoning delay
the Could should not forget the opposite party altogether. It
must be borne in mind that he is a looser and he too would
have incurred quiet a large litigation expenses. It would be a
salutary guideline that when courts condone the delay due to
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laches on the part of the applicant the court shall compensate
the opposite party for his loss."
16. Learned counsel for the respondents placed reliance on
the decision of the Apex Court in Majji Sannemma (supra) to
say that discretion to condone delay is to be exercised
judiciously and that the expression 'sufficient cause' cannot be
liberally treated if negligence, inaction or lack of bonafides is
attributable to the party. Even though in the instant case
learned counsel for the respondents tried to prove negligence
and lack of bonafide on the part of the petitioners but they are
not able to succeed in that direction. It is to be noticed that
while rights of the parties with respect to immovable property
is involved, the Court shall take note of the attending
circumstances and construe the delay liberally. A person has to
depend upon legal advise. If the legal advise takes him in a
wrong direction, that cannot be attributable to a litigant.
17. It is true, as observed by the Hon'ble Apex Court, the
discretion to condone delay is to be exercised judiciously. The
exercise of judicial discretion to condone delay would depend
on the facts of each case. In the case of Suryachakra (supra)
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the Hon'ble Apex Court observed that, while invoking Sec. 14 of
1963 Act one has to establish due diligence and good faith.
18. In the instant case, application is u/S 5 of the Limitation
Act. According to the learned counsel for the appellant
Sri.S.B.Hebballi, the averments made in the affidavit would
indicate that the petitioners invoked Sec. 14 of the Act.
However, it is to be observed that Sec. 14 would enable the
Court to exclude the time taken in pursuing other remedies. In
the instant case admittedly the petitioners were pursuing other
remedies on wrong legal advice. For the reasons recorded
above, writ appeals stand dismissed.
Pending IAs also stand dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
BVV
