Karnataka High Court

Nagesh S/O Sangappa Kendur vs The Additional Registrar Of ... on 21 November, 2024

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                                                             NC: 2024:KHC-D:16975
                                                         WP No. 112350 of 2014




                                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.112350 OF 2014 (CS-DAS)

                   BETWEEN:

                   NAGESH S/O. SANGAPPA KENDUR,
                   AGE: 52 YEARS, OCC: AGRICULTURE,
                   R/O: DASHUNSILA VATAR,
                   NEAR CHINDI HOUSE GULEDGUDDA
                   TQ: GULEDGUDDA, DIST: BAGALKOT.
                                                                     ...PETITIONER
                   (BY SRI B.K MALLIGAWAD AND
                   SRI P.G.CHIKKANARAGUND, ADVOCATES)
                   AND:

                   1.   THE ADDITIONAL REGISTRAR OF CO-OPERATIVE
                        SOCIETY, OFFICE OF THE
                        REGISTRAR OF CO-OPERATIVE
                        SOCIETY ALI ASKAR ROAD, BANGALORE.
                        Struck off order dated 24.02.2015.

                   2.   THE GENERAL MANAGER,
Digitally signed
by SAROJA               THE BASVESHWAR CO-OPERATIVE
HANGARAKI
Location: High
                        BANK LTD., BAZAR ROAD, BAGALKOT.
Court of
Karnataka
                   3.   THE ASSISTANT REGISTRAR OF CO-OP SOCIETIES
                        (N-441) AND THE RECOVERY OFFICER,
                        K.R.S.S.BANKS FEDERATION LTD.,
                        REGIONAL OFFICE, NO.I.9/18, DOLLARS COLONY,
                        GOKUL ROAD, HUBBALLI - 580 034.
                                                                 ...RESPONDENTS
                   (BY SRI DINESH M. KULKARNI, ADVOCATE FOR R2;
                   SMT. KIRTILATA R. PATIL, HCGP FOR R3;
                   V/O DATED 24.02.2015 R1 IS STRUCK OFF)

                         THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                   OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT IN
                   THE NATURE OF CERTIORARI TO QUASH THE ORDER DATED
                   26.09.2014 IN APPEAL NO.607/2008 PASSED BY THE KARNATAKA
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                                                  NC: 2024:KHC-D:16975
                                                WP No. 112350 of 2014




APPELLATE TRIBUNAL BANGALORE VIDE ANNEXURE-F AND AUCTION
SALE NOTICE DATED 06.11.2014 IN DISPUTE NO.297/2004-05
DATED 09.06.2014 AND CEP NO.4629/2005-06 DATED 28.07.2005
VIDE ANNEXURE-G & H 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

                              ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present writ petition is filed calling in

question the order dated 26.09.2014 passed in

Appeal No.607/2008 by the Karnataka Appellate

Tribunal Bangalore1 and auction sale notice dated

06.11.2014 in dispute No.297/2004-05 dated

09.06.2004 and CEP No.4629/2005-06 dated

28.07.2005.

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

Hereinafter referred to as 'KAT/Tribunal'

Hereinafter referred to as 'Act'

NC: 2024:KHC-D:16975

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.607/2008 before the Tribunal. Since

the appeal was filed belatedly, along with the appeal,

the petitioners filed an application to condone the

delay of 4 years 1 month and 16 days in filing the

appeal. The Tribunal by its judgment dated

26.09.2014 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

NC: 2024:KHC-D:16975

award dated 26.09.2014 passed against their father.

It is further contended that the rate of interest

awarded vide the said award dated 26.09.2014 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 reliefs sought for.

5. Per contra, learned AGA for respondent

No.1/State places relevant facts on record.

6. It is forthcoming that the Tribunal by its

judgment dated 26.09.2014, condoned the delay of 4

years, 1 month and 16 days in filing the appeal on

the ground that the appellant has shown sufficient

cause. Thereafter, while considering the appeal on its

merits, the Tribunal has recorded the following

finding:

"8. It is not in dispute that appellant availed loan of Rs. 2,00,000/- from 2nd respondent bank by executing agreement dated 22-06-2001 and respondents 3 and 5 and father of respondents 4(a) to (1) stood sureties to the appellant and property bearing Sy. No. 172 mortgaged in favour of 2nd respondent

NC: 2024:KHC-D:16975

bank. The appellant has not disputed the borrowing of loan of Rs. 2,00,000/- by executing documents in favour of 2nd respondent bank. Dispute is only with regard to rate of interest. The appellant has taken contention that he has not agreed to pay interest @ 19% p.a. Agreement dtd 22-06-2001 reflects that appellant has agreed to pay interest @ 19% p.a. It is not the case of appellant that appellant has not agreed to pay penal interest. The loan was sanctioned in the year 2001, the loan is overdue. When such being the case, awarding penal interest @ 2% p.a. on the overdue amount is not erroneous. In the impugned order, 1st respondent directed appellant and respondents 3 to 5 to pay penal interest @2% p.a. and interest @ 19% p.a. on the amount due in all @ 21% p.a. So, there is no illegality in awarding the interest @ 21% p.a. which is as per the document executed by the appellant and respondents 3 to 5. No other contention taken on behalf of the appellant in the arguments. Though the appellant counsel in the appeal memo raised contention that the agricultural land cannot be sold in auction and Agricultural loan was waived by the Government, no documents produced to show that agricultural loan availed by the appellant was waived as per the Government notification. If Government waived agricultural loan borrowed by the appellant, the appellant could have produced the notification waiver of loan, non- production of Government notification of waiver of loan clearly goes to show that Government not waived agricultural loan borrowed by the appellant and respondents 3 to 5. The Respondents 3 to 5 are agreed

NC: 2024:KHC-D:16975

to pay interest @ 19% p.a. and penal interest @2% р.а.

Amount is overdue and document executed in favour of 2nd respondent bank is not disputed by the appellant and appellant is also signatory to the document executed in favour of 2nd respondent. When such being the case the contention of the appellant that he has not agreed to pay interest @ 19% p.a. not acceptable. So, there is no illegality in the impugned order and there is no ground to interfere with the same. Hence, we answer point no. 2 and 3 in the Negative."

(emphasis supplied)

7. It is forthcoming that the Tribunal while

considering the appeal on its merits, has noticed that

the appellant has not disputed the borrowing of the

loan and the execution of the documents in favour of

it and that the dispute was only with regard to rate

of interest. The Tribunal further noticed the

contention of the appellant that he had not agreed to

pay interest at 19% p.a. However, the Tribunal has

recorded a finding that the agreement dated

22.06.2001 reflects that the appellant has agreed to

pay interest at 19% p.a.