Karnataka High Court
Nagesh S/O Sangappa Kendur vs The Assistant Registrar Of ... on 21 November, 2024
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NC: 2024:KHC-D:16976
WP No. 100897 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.100897 OF 2015 (CS-DAS)
BETWEEN:
1. NAGESH S/O. SANGAPPA KENDUR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: DASHMUNSHI VATAR,
NEAR CHINDI HOUSE, GULEDGUDDA,
TQ: GULEDGUDDA, DIST: BAGALKOT.
2. NEELAPPA S/O. SANGAPPA KENDUR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: DASHMUNSHI VATAR,
NEAR CHINDI HOUSE, GULEDGUDDA,
TQ: GULEDGUDDA, DIST: BAGALKOT.
3. NAGAVVA W/O. SANGAPPA GUDADARI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: DASHMUNSHI VATAR,
NEAR CHINDI HOUSE, GULEDGUDDA,
TQ: GULEDGUDDA, DIST: BAGALKOT.
Digitally signed
by SAROJA
HANGARAKI
4. BASAVVA W/O. BASAPPA BAVIKATTI,
Location: High AGE: 43 YEARS, OCC: AGRICULTURE,
Court of
Karnataka R/O. DASHMUNSHI VATAR,
NEAR CHINDI HOUSE, GULEDGUDDA,
TQ: GULEDGUDDA, DIST: BAGALKOT.
5. MAHAGUNDAPPA S/O. SANGAPPA KENDUR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. DASHMUNSHI VATAR,
NEAR CHINDI HOUSE, GULEDGUDDA,
TQ: GULEDGUDDA, DIST: BAGALKOT.
...PETITIONERS
(BY SRI B.K. MALLIGAWAD AND
SRI P.G.CHIKKANARAGUND, ADVOCATES)
AND:
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WP No. 100897 of 2015
1. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES, OFFICE OF THE REGISTRAR OF
CO-OPERATIVE SOCIETIES,
ALI ASKAR ROAD, BANGALURU DISTRICT.
2. THE GENERAL MANAGER,
THE BASAVESHWAR CO-OPERATIVE
BANK LTD., BAZAR ROAD, BAGALKOT,
DIST: BAGALKOT.
3. NARAYANA PANDURANGA SAFARE,
AGE: MAJOR, OCC: BUSINESS,
PIZX AGRO TRADERS, STATION ROAD, BAGALKOT.
4. CHANNAMALLAPPA KALADAGI,
POST: MUGALOLLI, TQ: DIST: BAGALKOT.
5. SMT. SANGAVVA S/O. SANGAPPA KENDUR,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: DASHMUNSHI VATAR, NEAR CHINDI HOUSE,
GULEDGUDDA, TQ: GULEDGUDDA, DIST: BAGALKOT.
6. VIRUPAKSHA S/O. SANGAPPA KENDUR,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: DASHMUNSHI VATAR, NEAR CHINDI HOUSE,
GULEDGUDDA, TQ: GULEDGUDDA, DIST: BAGALKOT.
7. SMT. SAVITHA W/O. GURURAJ PATIL,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: DASHMUNSHI VATAR, NEAR CHINDI HOUSE,
GULEDGUDDA, TQ: GULEDGUDDA, DIST: BAGALKOT.
...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1;
SRI DINESH M. KULKARNI, ADVOCATE FOR R2;
NOTICE TO R3 TO R7 ARE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, ISSUE A WRIT IN THE NATURE OF
CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 24.11.2014
IN APPEAL NO.731/2008 PASSED BY THE KARANATAKA APPELLATE
TRIBUNAL BANGALORE VIDE ANNEXURE - D AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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WP No. 100897 of 2015
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed calling in
question the order dated 24.11.2014 passed in
appeal No.731/2008 by the Karnataka Appellate
Tribunal Bangalore1.
2. The factual matrix in brief leading to the
present petition are that respondent No.2/Bank
initiated proceedings under Section 70 of the
Karnataka Co-Operative Societies Act, 19592 against
the father of the petitioners which culminated in an
award dated 09.06.2004 (Annexure-A) where under
the father of the petitioners was ordered to pay
respondent No.2 a sum of ₹3,10,837/- together with
interest. Being aggrieved, the petitioners preferred
the appeal No.731/2008 before the Tribunal. Since
the appeal was filed belatedly, along with the appeal,
the petitioners filed an application to condone the
Hereinafter referred to as 'KAT/Tribunal'
Hereinafter referred to as 'Act'
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delay of 4 years 3 months and 24 days in filing the
appeal. The Tribunal by its judgment dated
24.11.2014 dismissed the said appeal. Being
aggrieved, the present writ petition is filed.
3. Heard the submissions of learned counsels
Sri Santosh Malligawad for the petitioners and the
learned AGA for respondent No.1.
4. It is the vehement contention of the
learned counsel for the petitioners that the father of
the petitioners having died, the petitioners who are
his legal representatives were not aware of the
award dated 24.11.2014 passed against their father.
It is further contended that the rate of interest
awarded vide the said award dated 24.11.2014 is
excessive and the rate of interest is required to be
reduced. Hence, he seeks for allowing of the writ
petition and granting of the relief sought for.
5. Per contra, learned AGA for respondent
No.1/State places relevant facts on record.
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6. It is forthcoming that the Tribunal by its
judgement dated 24.11.2014 while considering the
application for condonation of delay has recorded the
following findings:
"8. On a perusal of affidavit filed along with the
application filed U/s 5 of the Limitation Act, it is that the
delay is on account of not impleading appellants as
parties in the dispute after the death of their father on
07-11-2007 and it is also on the ground that before
passing the award no notice was issued to the appellants
or to their father, but on perusal of LCR at page No. 14 to
19 it is seen that 1st respondent issued a notice to the
father of the appellants and three others. The notice
issued to the father of the appellant Sangappa Basappa
Kendur has served by registered post acknowledgement
which is at page no. 15 of LCR. The postal
acknowledgement produced in the LCR falsifies the
contention of the appellants that, no notice was served to
the father of the appellants. The father of the appellants
according to appellants died on 07-11-2007, whereas the
impugned award was passed on 09-06-2004 preceding
the death of appellants' father. The loan was borrowed by
Sangappa Basappa, father of the appellants along with
three other persons Narayana Panduranga Safare,
Nagappa Sangappa and Channamallappa. Notices were
issued to all the persons including father of the
appellants. When the father of the appellants was alive
issuing notice to appellants does not arise. Thus, the
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contention of the appellants that no notice were issued to
them and that the impugned order was passed without
serving notice to them cannot be accepted. It is also not
the case of appellants that the signature in postal
acknowledgement produced at page No. 15 of LCR is not
that of their father. The delay is more than 4 years, if
there is delay of 1 or 2 months there is some justification
in the contention of appellants that they were not aware
of borrowing of the loan or passing of the impugned
award. Except stating that they were not aware of the
passing of the impugned order, the appellants have
placed nothing before this Court to show that, they were
not aware of passing of impugned order against their
father. The Appellants are not illiterate. After the death of
their father, all of them being members of the respondent
bank the loan having been borrowed by mortgaging the
property belonging to their father would most certainly
know of the loan in one way or the other. Therefore, their
contention that they were not aware of the passing of the
impugned order against their father cannot be accepted.
The unexplained inordinate delay cannot be condoned
without there being sufficient reasons. If unexplained
delay of more than 4 years is condoned, it will cause
injustice to the respondent bank. Moreover, the
appellants have not disputed borrowing the loan.
Therefore, in view of these satisfactorily circumstances, in
our opinion the appellants have not explained the delay in
filing this appeal. Hence, we answer point no.1 in the
negative."
(emphasis supplied)
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7. It is forthcoming from the aforementioned
that the Tribunal upon considering the application for
condonation of delay and the affidavit filed in support
of the application has noticed that the petitioners,
apart from stating that they are not aware of passing
of the award has not placed any material on record
in support of the same. It is further noticed that the
petitioners who are appellants before the Tribunal
were also members of the respondent No.2/Bank and
have availed of various credit facilities. Hence, the
Tribunal has recorded a finding that the assertion
made by the petitioners that they were not aware of
the award against their father cannot be accepted. It
is further held that the delay of more than 4 years is
inordinate, without adequate reasons and the same
cannot be accepted.
8. Although, the Tribunal has recorded the
finding that the delay has not been adequately
explained, the Tribunal has proceeded to consider
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the case put forth by the petitioners who are
appellants in the said appeal on its merits.
Considering the same, the Tribunal has noted that
the father of the petitioners died on 07.11.2007,
whereas the award was passed on 09.06.2004 prior
to the death of their father. Further considering the
contention of the petitioners/appellants that the
agricultural loans are required to be waived and
reduce the rate of interest sought to be claimed for
agricultural loans, the Tribunal has noticed that the
Government notification issued in that regard is in
respect of agricultural loans which are less than
₹50,000/- and that the amount borrowed by the
father of the petitioners was a sum of Rs.2,00,000/-.
Hence, the Tribunal has recorded a finding that the
appellants were not entitled for any benefit of any
Government policy.
9. Further, the Tribunal has noticed that the
father of the petitioners while borrowing the loan has
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agreed to pay interest at 19% with penal interest at
2%. However, since the delay has not been
condoned, the Tribunal has not proceeded to grant
any relief in that regard.
10. The petitioners have not placed any
material on record in the present writ petition also to
explain the inordinate delay of more than 4 years in
approaching the Tribunal. The petitioners have also
not placed any material on record to demonstrate
that any reduced rate of interest is required, to be
applied in respect of the loans availed by the father
of the petitioners.
11. In view of the aforementioned, the
petitioners have failed in demonstrating that the
order of Tribunal is in any manner erroneous and
liable to be interfered with by this Court in the
present writ petition.
12. Hence, the present writ petition is
dismissed as being devoid of merit.
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13. Notwithstanding the dismissal of the
present writ petition, it shall be open for the
petitioners to approach the respondent No.2 for
making an offer of one time settlement and if such
an offer is made, respondent No.2 shall consider the
same in accordance with law.
Sd/-
(C.M. POONACHA)
JUDGE
SSP/CT-ASC
