Karnataka High Court

Kum. Ramya Deshapande Deshpande D/O ... vs State Of Karnataka on 5 July, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                                  NC: 2024:KHC-D:9268
                                                                   WP No. 101225 of 2024




                                  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                        DATED THIS THE 5TH DAY OF JULY, 2024
                                                        BEFORE
                                    THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                                     WRIT PETITION NO.101225 OF 2024 (CS-DAS)
                             BETWEEN:

                             KUM. RAMYA DESHAPANDE
                             D/O ANIL KUMAR K. DESHPANDE,
                             AGED ABOUT 24 YEARS,
                             OCC: EMPLOYEE IN PRIVATE FIRM,
                             R/O: AT: NO.2260, WARD NO.5,
                             KILLA GALLI, BILAGI TOWN,
                             BAGALKOT DISTRICT.
                                                                            ... PETITIONER
                             (BY SRI N.S. SURAJ GOUDA, ADVOCATE FOR
                              SRI HANUMESH M. DESAI, ADVOCATE)

                             AND:

                             1.   STATE OF KARNATAKA,
                                  VIDHAN SOUDHA,
                                  DR. AMBEDKAR VEEDI,
                                  BENGALURU-560001,
                                  R/BY ITS CHIEF SECRETARY.

ASHPAK
KASHIMSA
                             2.   STATE OF KARANTAKA,
MALAGALADINNI                     DEPARTMENT OF REVENUE,
Digitally signed by ASHPAK
                                  M.S. BUILDING,
KASHIMSA MALAGALADINNI
Location: HIGH COURT OF
KARNATAKA DHARWAD
                                  DR. ABMEDKAR VEEDI,
BENCH
Date: 2024.07.10 12:24:47
+0530                             BENGALURU-560001,
                                  R/BY ITS PRINCIPAL SECRETARY.

                             3.   THE COMPETENT AUTHORITY,
                                  M/S SMN SOUHARDA CREDIT CO-OP LTD.
                                  AND ADDL. REGIONAL COMMISSIONER,
                                  BMTC BUILDING, SHANTHI NAGAR,
                                  BENGALURU-560027.

                             4.   THE DEPUTY REGISTRAR OF
                                  CO-OPERATIVE SOCIETIES SOUHARDA
                                  CO-OPERATIVE ARBITRATION COURT
                                  NO.68, BETWEEN, 17 AND 18 CROSS,
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                                     NC: 2024:KHC-D:9268
                                         WP No. 101225 of 2024




     MALLESWARAM, BENGALURU-560055.

5.   THE KARNATAKA STATE SOUHARDA
     FEDERAL CO-OP. LTD.,
     'SOUHARDA SAHAKARI SOUDHA',
     OFFICE AT NO.68,
     BETWEEN 17 AND 18 CROSS,
     MALLESHWARAM,
     BENGALURU-560055.

6.   M/S SMN SOUHARDA CREDIT CO-OP. LTD.,
     R/BY ITS LIQUIDATOR AND DISTRICT
     CO-COORDINATOR,
     KARNATAKA STATE SOUHARDA
     FEDERAL CO-OP. LTD.,
     KRSIHNA COMPLEX,
     NEAR SIDDESWARA TEMPLE,
     SRI SIDDESWARA ROAD,
     VIJAYAPUR-586101.

7.   THE SPECIAL OFFICER,
     M/S SMN SOUHARDA CREDIT
     CO-OP. LTD., KRISHNA COMPLEX,
     NEAR SIDDESWARA TEMPLE,
     SRI SIDDESWARA ROAD,
     VIJAYAPUR-587101.
                                                  ... RESPONDENTS

(BY SRI SHIVARPABHU S. HIREMATH, AGA FOR R1, R2 & R4;
 SRI VEERESH R. BUDIHAL, ADVOCATE FOR R3;
 R5, R6 & R7-NOTICE SERVED)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI BY QUASHING THE GAZETTE NOTIFICATION DATED 11-
11-2021,   PUBLISHED   ON   15/12/2021   ISSUED   BY   THE FIRST
RESPONDENT ATTACHING THE SCHEDULE PROPERTIES ANNEXURE-C
AND ETC.


      THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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                                                NC: 2024:KHC-D:9268
                                                     WP No. 101225 of 2024




                                    ORDER

1. Heard the learned counsel Sri. N.S.Sairaj Gowda,

on behalf of learned counsel Sri. Hanumesh M. Desai,

appearing for the learned counsel for the petitioner, learned

AGA for respondent Nos.1, 2 and 4 and Sri. Veeresh R.

Budihal, learned counsel for the respondent No.3.

2. It is the case of the petitioner that, the

agricultural property bearing survey No.48/1+2, measuring 6

acres 22 guntas, survey No.347/3B, measuring 9 guntas and

survey No.355, measuring 1 acre 24 guntas, situated at

Bilagi village, Bilagi Hobli, Bilagi taluk, Bagalkot district, are

the subject matter of the suit proceedings initiated by the

petitioner as she is the daughter of one Anil Kumar

Keshavarao Deshpande and grand-daughter of late Keshav

Rao. The said properties were undivided Hindu joint family

properties, in which the petitioner has rightful claim over the

property. She has initiated the suit proceedings in

O.S.No.82/2023 before the Senior Civil Judge and JMFC

Court, Bilagi, against her brother, father and other

respondents for partition and separate possession.

NC: 2024:KHC-D:9268

3. The petitioner came to know that, the respondent

No.1-Government had passed an order of attachment in

respect of the properties mentioned herein above, which are

un-divided joint family properties of the petitioner under

Section 3(2) of the Karnataka Protection of Interest of

Depositors in Financial Establishments Act, 2004, (for short

'the KPID Act') on the ground that, M/s. SMN Credit

Souhardha Sahakari Niyamita, Vijayapura, failed to deposit

the amount in which the father of the petitioner Anilkumar

Keshavarao Deshpande, was the director and appointed

respondent No.3 as competent authority. This being the case

of respondent No.3, the competent authority filed a petition

in Misc. No.5501/2023 before the Special Additional City Civil

Judge, Bengaluru, seeking order of absolute attachment of

schedule properties in view of the order passed by the

respondent No.1 which is pending consideration.

4. It is the contention of the learned counsel for the

petitioner that, the respondent No.4-authority passed an

order of attachment before passing of the Judgment, in

respect of the properties in question under Section 44 of the

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Karnataka State Souharda Sahakari Act, 1997, (for short

'KSSS Act') on the ground that, the father of the petitioner

misappropriated the funds of respondent No.6 society being

a Director. It is the contention of the learned counsel that,

the properties of the father of the petitioner are not absolute

properties or self acquired properties. They are the

properties of joint Hindu undivided family properties in which

the petitioner has un-divided 1/3rd equal share along with

her brother and father. Therefore, the order of attachment of

the properties passed by the respondent Nos.1 and 4 would

not survive as against the petitioner as the petitioner was

not made as a party in the proceedings before the concerned

authority.

5. Learned counsel further contends that, apart from

initiating proceedings under the Karnataka State Souharda

Sahakari Act, 1997, the respondents have also initiated

proceedings under Section 3(2) of the 'KPID Act'. Hence, he

contends that, there are two parallel proceedings initiated

against the properties, in which the petitioner has an

undivided share for which already she has initiated a suit in

NC: 2024:KHC-D:9268

O.S.No.82/2023 which is pending adjudication. Therefore, it

is his contention that, to the extent of 1/3rd share of the

petitioner, no action should be taken by the competent

authority. Hence, left with no other alternative efficacious

remedy, the petitioner is before this Court, seeking to stay

the gazette notification issued by the respondent No.1 for

attaching the schedule properties at Annexure-C and

consequential orders.

6. Learned counsel Sri. Veeresh Budihal, appearing

for respondent No.3 contends and raises a preliminary

objection that the petition itself is not maintainable in view of

the bar contained under Section 10 of the Karnataka

Protection of Interest of Depositors in Financial

Establishments Act, 2004. Sub-clause 1, 2, and 3 of Section

10 reads as under:

"10. Special Court.-

(1) For the purposes of this Act, the Government may, with the concurrence of the Chief Justice of the High Court of Karnataka, by notification, constitute one or more Special Court consisting of a single judge not below the rank of a District and Sessions Judge for such area or areas or for such class or classes of cases. [Provided that, if the Government is of the opinion that where cases pertaining to any financial

NC: 2024:KHC-D:9268

establishment are spread over more than one District, the Government may, with concurrence of the Chief Justice of the High Court of Karnataka, by notification designate one Court of District or Sessions Judge as special Court to deal with all such cases pertaining to such financial establishment.]

(2) No Court including the Court constituted under the Presidency Towns Insolvency Act, 1909 [Act 3 of 1909] and the Provincial Insolvency Act, 1920, [Act 5 of 1920] other than the Special Court shall have jurisdiction in respect of any matter to which the provisions of this Act is invoked.

(3) Any pending case in any other court in respect of which the provisions of this Act is invoked, shall stand transferred to the Designated Courts from the date of notification issued under sub-section (1)."

7. It is the vehement contention of the learned

counsel for the respondent No.3 that, though the petitioner

was not a party to the initiation of proceedings under the

KSSS Act, or under the KPID Act, any claim that could be

made by the petitioner will be subject to the provisions of

KPID Act and the Special Court is seized of the matter as

contemplated under Section 10 and no Court other than

Special Court would have jurisdiction in respect of any

matter under the provisions of this Act. Therefore, he

contends that, the petition would have to be dismissed as

not maintainable and at the same time, he contends that,

NC: 2024:KHC-D:9268

the petitioner would be at liberty to claim any right over the

property by making an application before the Special Court

and the same would be considered by Special Court after

hearing the petitioner, in accordance with law.

8. Learned AGA representing the State subscribes to

the arguments put forth by the learned counsel for the

respondent No.3, and also contends that, when there is a

special enactment and a special Court is constituted, dealing

with the cases falling under KPID Act, any pending case in

any other Court would have to be transferred to the Special

Court to be dealt with the provisions of KPID Act.

9. It is the apprehension of the learned counsel for

the petitioner that, there would be two parallel proceedings

on the same cause of action against the properties belonging

to the petitioner. Therefore, he contends that, if the matters

are dealt with by the special Court under the KPID Act, so

also the proceedings initiated under the KSSS Act, on the

properties in which the petitioner has share, then he would

have not much objection in participating in the proceedings

before the special Court constituted under Section 10 of the

NC: 2024:KHC-D:9268

KPID Act. I am in agreement with the learned counsel for the

petitioner that, there cannot be two parallel proceedings

initiated for the same cause of action for the recovery of the

amount. However, the provisions of Section 10 of the KPID

Act, makes it clear that, any proceedings in any other Court

in respect of which the provisions of the KPID Act are

invoked, shall stand transferred to the designated Court from

the date of notification under sub-Section 1 of Section 10 of

KPID Act. Therefore, the apprehension of the learned counsel

for the petitioner is answered in Section 10 of the KPID Act.

10. So also, the provisions of sub-Section 2 and 3 of

Section 12 of the KPID Act, reads as under:

"12. Powers of Special Court regarding attachment.-

(2) The Special Court shall also issue such notice, to all other persons represented to it as having or being likely to claim, any interest or title in the property of the Financial Establishment or the person to whom the notice is issued under sub section (1), calling upon all such persons to appear on the same date as that specified in the notice and make objection if they so desire to the attachment of the property or any portion thereof on the ground that they have interest in such property or portion thereof.

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NC: 2024:KHC-D:9268

(3) Any person claiming an interest in the property attached or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the Special Court at any time before an order is passed under subsection (4) or sub-section (6)."

11. This Section provides remedy for the petitioner to

approach Special Court to claim interest over the properties

that are attached even though the petitioner was not made

as a party.

12. Under the circumstances, when there is an

alternative efficacious remedy available to the petitioner, the

present petition would not be maintainable and the petitioner

would have to be relegated to the special Court to make all

endeavors before the special Court to claim appropriate

relief. Therefore, all grounds urged herein could be

canvassed before the Special Court by the petitioner.

13. Under the circumstances, I pass the following: