Karnataka High Court
Primary Krishi Pattin Sahakari Sangha ... vs Shri. Malaesh S/O Ningappa Mulagund on 6 June, 2024
Author: S G Pandit
Bench: S G Pandit
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WA No. 100699 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO.100699 OF 2023 (CS-DAS)
BETWEEN:
PRIMARY KRISHI PATTIN
SAHAKARI SANGHA NIYAMIT HANGAL,
REP. BY ITS PRESENT CHIEF EXECUTIVE OFFICER,
SRI PUTTARAJ S/O. KUMARESH DODDAMANI,
AGE. 34 YEARS, OCC. HANGAL,
TQ. HANGAL, DIST. HAVERI-581104.
...APPELLANT
(BY SRI MAHESH WODEYAR, ADVOCATE)
AND:
1. SHRI MALATESH S/O. NINGAPPA MULAGUND,
AGE. 46 YEARS, OCC. EX. CHIEF EXECUTIVE OFFICER,
PRIMARY KRISHI PATTIN
SAHAKARI SANGHA NIYAMIT HANGAL,
R/O. VIVEKANAND NAGARA, WARD NO.4, TQ. HANGAL,
Digitally signed
by MANJANNA E DIST. HAVERI-581104.
Location: HIGH 2. SMT. SMITA D/O. SADANAND
COURT OF
KARNATAKA AFTER MARRIAGE CALLED AND KNOWN BY NAME
W/O. SHIVABASAVA MUDDI,
AGE. 48 YEARS, OCC. WORKING AS NURSE IN
GOVERNMENT HOSPITAL, HANGAL, TQ. HANGAL,
DIST. HAVERI-581104.
3. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETY,
SAVANUR SUB DIVISION, SAVANUR, SALIMATH
BUILDING,
SAVANUR, TQ. SAVANUR, DIST. HAVERI-581118.
4. DEPUTY REGISTRAR
OF CO-OPERATIVE SOCIETY, HAVERI,
D.C. COMPOUND HAVERI, TQ. & DIST. HAVERI-581110.
...RESPONDENTS
(BY SRI ANAND BAGEWADI AND
SRI SHIVARAJ P.MUDHOL, ADVOCATES FOR C/R2;
SRI G.K.HIREGOUDAR, AGA FOR R3 AND R4)
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WA No. 100699 of 2023
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS HON'BLE
COURT TO, PLEASED TO ALLOW THIS WRIT APPEAL AND SET-ASIDE
THE ORDER DATED 23.09.2023 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P.NO.100112/2023 (CS-DAS) AND CONSEQUENTLY
ALLOW THE WRIT PETITION IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS WRIT APPEAL, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra Court appeal filed by the petitioner-appellant
under Section 4 of the Karnataka High Court Act, 1961 is
directed against the order dated 23.09.2023 passed in Writ
Petition No.100112/2023 by leaned Single Judge setting
aside the order dated 18.02.2022 attaching respondent No.1
property and confirming the order dated 30.11.2022 passed
by respondent No.4.
2. Heard learned counsel Sri.Mahesh Wodeyar for
the appellant, Sri.Anand Bagewadi learned counsel for
Sri.Shivaraj P.Mudhol for respondent No.2 and learned AGA
Sri.G.K.Hiregoudar for respondents No.3 and 4. Perused the
writ appeal papers.
3. Learned counsel for the petitioner/appellant
would submit that the petitioner-society initiated proceedings
against respondent No.1 before the Assistant Registrar under
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Section 70 of the Karnataka Co-operative Societies Act, 1959
(for short, 'the Act') and also filed an application under
Section 103 of the Act seeking attachment of property at
Ward No.4, Vivekananda Nagar, Hangal belonging to
respondent No.2. Respondent No.3-Assistant Registrar of Co-
operative Societies by order dated 30.04.2021 attached the
property of respondent No.2. Respondent No.2 filed
application recalling the order of attachment which was
rejected by respondent No.3-Assistant Registrar of Co-
operative Societies by order dated 18.02.2022. Thereafter,
being aggrieved by the same, respondent No.2 filed an
appeal along with an application before respondent No.4-
Deputy Registrar of Co-operative Societies which was
allowed by respondent No.4-Deputy Registrar of
Co-operative Societies by order dated 30.11.2022.
Challenging the same, the petitioner/appellant was before
this Court in Writ Petition No.100112/2023. Learned Single
Judge under impugned order dated 23.09.2023 rejected the
writ petition and confirmed the order of respondent No.4-
Deputy Registrar of Co-operative Society dated 30.11.2022
on the ground that as on the date of passing the attachment
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order, the title over the property attached was not with
respondent No.1 and the property was already conveyed in
favour of respondent No.2.
4. Learned counsel for the petitioner/appellant
Sri.Mahesh Wodeyar would contend that the learned Single
Judge as well as respondent No.4-Deputy Registrar of Co-
operative Societies committed grave error in not allowing the
application filed by the petitioner/appellant under Section
103 of the Act. It is submitted that the petitioner-society has
lien over the property of its employees and the employee
without taking permission from the society under Section 32
of the Act could not have transferred the property. Learned
counsel would further submit that respondent No.1 has
misappropriated the society funds to the tune of Rs.1.5 crore
and if respondent No.1 alienates the property, the petitioner-
society would not be in a position to recover the same. Thus,
learned counsel would pray for attachment of the property
belonging to the petitioner-appellant under Section 103 of
the Act. Thus, he prays for allowing the writ appeal.
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5. Per contra, Sri.Anand Bagewadi, learned counsel
appearing for respondent No.2 would submit that respondent
No.2 purchased the property in question from respondent
No.1 on 05.01.2018 under a registered sale deed. For
misappropriation of funds or proceedings against respondent
No.1, the property belonging to respondent No.2 cannot be
attached. It is submitted that the petitioner-appellant has no
subsisting right over the property in question and only if the
society is able to prove that it has subsisting prior right over
the property, it could seek attachment of such property.
Further, learned counsel referring to Section 32 of the Act
would submit that, if the society proves that any debt or
outstanding demand owing to a co-operative society by any
member or past member or deceased member, the society
has first charge on materials forming part of the estate
belonging to such member or past member or deceased
member. Learned counsel would submit that sub-section (2)
Section 32 of the Act restrict transfer of such property over
which charge is created under sub-section (1) Section 32 of
the Act. Learned counsel would submit that respondent No.2
is neither a member of the petitioner-society nor he was a
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past member of the society, hence, he submits that charge
stated under Section 32 of the Act would have no
application. Thus, it is prayed for dismissal of the writ
appeal.
6. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that
would arise for our consideration is as to whether the
impugned order of the learned Single Judge requires
interference?
7. The answer to the above point is in the negative
for the following reasons and the writ petition is liable to be
dismissed on costs:
8. Admittedly, under Section 70 of the Act dispute is
raised against respondent No.1-employee of the petitioner-
society. Respondent No.2 is not an employee or member of
the petitioner-society. Respondent No.2 is a purchaser of
property in question from respondent No.1 on 05.01.2018
under a registered sale deed. The proceedings initiated
against respondent No.1 under Section 70 of the Act is on
30.04.2021. As on the said date of initiating proceedings
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under Section 70 of the Act against respondent No.1,
respondent No.1 had no right, title and interest over the
property in question. Respondent No.1 had sold the property
more than four years prior to initiation of proceedings
against him under Section 70 of the Act.
9. Under Section 103 of the Act, the petitioner-
society could seek attachment of property if the Registrar is
satisfied that any person with intent to delay or obstruct the
enforcement of any order, decision or award that may be
made against him is about to dispose of the whole or any
part of his property or is about to remove the whole or any
part of his property from the jurisdiction to the Registrar, the
Arbitrator or Liquidator, as the case may be.
10. Sub-section (3) of Section 103 would state that
attachment made under this Section shall not affect the
rights, subsisting prior to the attachment of the property, of
persons not parties to the proceedings in connection with
which attachment is made. In the instant case, the
petitioner-appellant-society had no subsisting right over the
property in question. It is also to be taken note that
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respondent No.1 against whom the petitioner-society has
initiated proceedings under Section 70 of the Act has also no
subsisting right, title or interest as on the date of initiating
the proceedings. The petitioner-appellant-society could not
have invoked Section 103 of the Act against the property of
respondent No.2 without there being any proceedings
against respondent No.2.
11. With regard to contention of learned counsel for
the petitioner-appellant that respondent No.1 has sold
property even without obtaining permission as required
under Section 32 of the Act is misconceived, Section 32 of
the Act has no application for the facts of the present case.
Section 32 of the Act would have application in case of any
member or past member or deceased member against whom
charge is created in favour of the petitioner-society as stated
therein, but respondent No.2 is neither a member or formal
member of the petitioner-society. No charge as stated in
Section 32 of the Act is created over the property in
question.
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12. For the reasons stated to above, we are of the
considered opinion that, no case is made out to interfere
with the order passed by the learned Single Judge as well as
respondent No.4-Deputy Registrar of Co-operative Societies.
Accordingly, the writ appeal stands rejected.
13. For dragging respondent No.2 to legal
proceedings unnecessarily, the petitioner-appellant-society is
liable to pay costs of Rs.25,000/- to respondent No.2, and
the same shall be paid within two weeks.
14. If the petitioner-society fails to pay the costs as
ordered above, respondent No.3-Assistant Registrar of Co-
operative Societies shall initiate appropriate proceedings for
recovery of costs and shall pay the same to respondent No.2.
Sd/-
JUDGE
Sd/-
JUDGE
RH
