Karnataka High Court
Mr Jossey Peter Bothello vs The State Of Karnataka on 2 September, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:35680
WP No. 18500 of 2015
C/W WP No. 26079 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 18500/2015 (CS-DAS)
C/W
WRIT PETITION No.26079/2018 (CS-RES)
IN W.P.NO.18500/2015:
BETWEEN:
MR. UDAY KUMAR SHETTY
S/O BHASKAR D SHETTY,
AGED ABOUT 47 YEARS,
R/O BADAGUMANE,
KIDIYUR VILLAGE AND POST,
UDUPI TALUK AND DISTRICT - 576 103.
...PETITIONER
(BY SRI.A.G. GURURAJA, ADVOCATE FOR
SRI. P.N. HEGDE, ADVOCATE)
Digitally signed AND:
by
LEELAVATHI S
R 1. DEPUTY REGISTRAR OF CO-OPERATIVE
Location: HIGH SOCIETIES, UDUPI DISTRICT,
COURT OF UDUPI - 576 103.
KARNATAKA
2. THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
O/O ASSISTANT REGISTRAR,
KUNDAPUR, KUNDAPUR TALUK,
UDUPI TALUK AND DISTRICT - 576 103.
3. MAHALAKSHMI CO-OP. BANK
REPRESENTED BY ITS GM,
1ST FLOOR, SHIVAKRUPA BUILDING,
MARUTHI VEETHIKA,
UDUPI - 576 101.
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WP No. 18500 of 2015
C/W WP No. 26079 of 2018
4. SALE OFFICER
MAHALAKSHMI CO-OP BANK,
REPRESENTED BY ITS GM,
1ST FLOOR, SHIVAKRUPA BUILDING,
MARUTHI VEETHIKA,
UDUPI - 576 101.
5. JOSSEY PETER BOTHELO
S/O LATE ALEX PAUL BOTHELO,
AGED ABOUT 74 YEARS,
6. MRS.HELEN BOTHELO
W/O JOSSEY PETER BOTHELO
AGED ABOUT 67 YEARS.
(RESPONDENT NOS.5 & 6 ARE
R/O NO.J/15, EVERARD NAGAR
EASTERNN EXPRESS HIGHWAY,
SION, MUMBAI - 400022)
7. SMT. LYDIA FERNANDES
D/O PATRIC BOTHELO,
AGED ABOUT 38 YEARS,
8. SMT.SONAI BOTHELO
D/O PATRIC BOTHELO,
AGED ABOUT 29 YEARS,
(RESPONDENT NOS. 7 & 8 ARE
R/O NO.845, SAVIO VILLA
27TH MAIN, 2ND STAGE, BTM LAYOUT
BENGALURU - 560 076)
9. MR. STEPHEN CRASTA,
S/O JOHN CRASTA,
AGED ABOUT 43 YEARS,
R/O MARINE VIEW,
(KARVANA BUILDING)
4TH FLOOR, FLAT NO.4-B, 98,
1ST MARINE STSREET, NEXT TO GOAL MASZID,
MUMBAI - 400 002.
10. MOHAN V SHETTY
S/O LATE VITTAL SHETTY
SINCE DEAD BY HIS LRS
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WP No. 18500 of 2015
C/W WP No. 26079 of 2018
10(a) SMT. SHAMA M.,
W/O LATE MOHAN V SHETTY
AGED ABOUT 48 YEARS
R/AT NO.8-0-4, NEEL SANKUL
PLOT NO.- 20C, SECTOR 11
KALAMBOLI, NAVI BOMBAY - 410 218.
10(b) KUM. SAIVI SHETTY
D/O LATE MOHAN V SHETTY
AGED ABOUT 28 YEARS
R/AT NO.8-0-4, NEEL SANKUL
PLOT NO. - 20C, SECTOR 11
KALAMBOLI, NAVI BOMBAY - 410 218.
...RESPONDENTS
(BY SMT. PRATHIBHA R.K, AGA FOR R-1 & R-2
SRI. T. DHADA KHALANDAR, ADVOCATE FOR
SRI. N. RAMACHANDRA, ADVOCATE FOR R-3
SRI. K. PRASAD HEGDE, ADVOCATE FOR R-10 (A & B)
VIDE ORDER DATED 06.07.2015, NOTICE
SERVED ON R-4 TO R-6 & R-9)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER AT ANNX-A DT.17.3.2014 PASSED BY THE R-1
IN APPEAL NO.6/2011-12.
IN WP NO.26079/2018:
BETWEEN:
1. MR. JOSSEY PETER BOTHELLO,
AGED ABOUT 76 YEARS,
S/O LATE ALEX PAUL BOTHELO,
NO.J /15, EVERARD NAGAR,
EASTERN EXPRESS HIGHWAY SION,
MUMBAI - 400 002.
(SR CITIZEN BENEFIT NOT CLAIMED)
2. MRS. HELEN BOTHELLO,
W/O JOSSEY PETER BOTHELLO,
AGED ABOUT 64 YEARS,
NO.J/15, EVERARD NAGAR,
EASTER EXPRESS HIGHWAY SION,
MUMBAI - 400 022.
(SR CITIZEN BENEFIT NOT CLAIMED)
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WP No. 18500 of 2015
C/W WP No. 26079 of 2018
3. SMT. LYDIA FERNANDES,
AGED ABOUT 42 YEARS,
D/O PATRIC BUTHELLO,
R/AT NO.845, SAVIO VILLA, 27TH MAIN,
2ND STAGE, BTM LAYOUT,
BENGALURU - 560 076.
REPRESENTED BY HER GPA HOLDER
MR PATRIC BUTHELLO,
AGED ABOUT 73 YEARS,
S/O PAUL BUTHELLO,
4. SMT. SONIA BUTHELLO,
AGED ABOUT 33 YEARS,
D/O PATRIC BUTHELLO,
NO.845, SAVIO VILLA, 27TH MAIN,
2ND STAGE, BTM LAYOUT,
BENGALURU - 560 076.
5. MR. STEPHEN CRASTA,
AGED ABOUT 46 YEARS ,
S/O JOHN CRASTA, MARINE VIEW,
KARVANA BUILDING, 4TH FLOOR,
FLAT NO.4-B, 98, 1ST MARINE STREET,
NEXT TO GOAL MASJID,
MUMBAI - 400 002.
...PETITIONERS
(BY SRI.ABHINAV R., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF CO-OPERATION,
M.S.BUILDINGS, DR.B.R. AMBEDKAR ROAD,
BENGALURU - 560 001.
REPRESENTED BY PRINCIPAL SECRETARY
2. THE DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIETIES,
UDUPI DISTRICT, UDUPI - 576 103.
3. THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
O/O ASSISTANT REGISTRAR,
KUNDAPUR, KUNDAPUR TALUK,
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WP No. 18500 of 2015
C/W WP No. 26079 of 2018
UDUPI TALUK AND DISTRICT - 576 103.
4. THE MAHALAKSHMI CO-OPERATIVE BANK
1ST FLOOR, SHIVAKRUPA BUILDING,
MARUTHI VEEHIKA, UDUPI - 576 101.
REPRESENTED BY ITS GENERAL MANAGER
5. THE SALE OFFICER,
MAHALAKSHMI CO-OPERATIVE BANK,
1ST FLOOR, SHIVAKRUPA BUILDING,
MARUTHI VEEHIKA, UDUPI - 576 101.
6. SRI MOHAN V SHETTY,
AGED ABOUT 48 YEARS,
S/O LATE VITTAL SHETTY,
R/O PATEL HOUSE, AMBALPADY, UDUPI.
NOW RESIDING AT A4/74,
GREEN FIELDS JOGESHWARI,
VIKROLI LINK ROAD,
ANDHERI (E) MUMBAI - 400 093.
7. SRI. UDAY KUMAR SHETTY,
AGED ABOUT 50 YEARS,
S/O BHASKAR D SHETTY
R/O BADAGUMANE,
KIDIYUR VILLAGE AND POST,
UDUPI TALUK & DISTRICT - 576 103.
...RESPONDENTS
(BY SMT.PRATHIBHA R.K., AGA FOR R1 TO R3;
SRI. DHADAKHALANDRA T., ADVOCATE FOR
SRI. N. RAMACHANDRA., ADVOCATE FOR R4 & R5;
SRI. PRASAD HEGDE., ADVOCATE FOR R6 (A & B);
R7 SERVED BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 17.03.2014 PASED BY THE 2ND
RESPONDENT IN APPEAL NO.06/2011-12 AT ANNEXURE - K BY
ALLOWING THE PRESENT WRIT PETITION.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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WP No. 18500 of 2015
C/W WP No. 26079 of 2018
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In W.P.No.18500/2015, petitioner seeks the following reliefs:
"i. Issue a Writ in the nature of Certiorari,
quashing the impugned order at Annexure-A dated
17/3/2014 passed by the 1st respondent in Appeal
No.06/2011-12.
ii. Pass such other orders as this Hon'ble Court
deems fit in the circumstances of the case in the interest of
justice and equity."
In W.P.No.26079.2018, petitioners seek the following reliefs:
"i. Issue a writ in the nature of Certiorari,
quashing the impugned order dated 17.03.2014 passed by
the 2nd Respondent in Appeal No.06/2011-12 at Annexure-
K, by allowing the present Writ Petition.
ii) Grant costs; and
iii) Pass such other orders as this Hon'ble Court
deems fit in the circumstances of the case and in the
interest of justice and equity."
2. Heard learned counsel for the petitioner/s and learned
counsel for the respondents and perused the material on record.
3. A perusal of the material on record will indicate that an
award dated 21.03.2000 was passed against Mohan V. Shetty,
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who is arrayed as respondent No.10 in W.P.No.18500/2015 and
respondent No.6 in W.P.No.26079/2018 in a dispute raised by
respondent Nos.3 and 4 (W.P.No.18500/2015) / respondent Nos.4
and 5 (W.P.No.26079/2018) - Bank under Section 70 of the
Karnataka Co-operative Societies Act, 1959. Subsequently, the
mortgaged property was brought to public auction on 21.04.2007
and Sri. Uday Kumar Shetty, petitioner in W.P.No.18500/2015
purchased the said property and the auction sale in his favour was
confirmed vide order dated 27.09.2007 and the Sale Certificate
dated 09.10.2007 was issued in his favour. Subsequently, after
getting the subject land converted for non-agricultural purpose vide
Conversion order dated 24.06.2009, Sri. Uday Kumar Shetty
through his GPA holder executed three separate Sale Deeds dated
26.11.2009 in favour of Sri. Jossey Peter Bothello, 1st petitioner in
W.P.No.26079/2018.
4. Mohan V. Shetty - Respondent No.10 / 6 approached
this Court in W.P.No.33043/2009 which was disposed of on
18.06.2010 relegating respondent No.10 / 6 to avail alternative
remedy of appeal, pursuant to which, the aforesaid Mohan V.
Shetty, filed an appeal before respondent No.2 questioning the
aforesaid award dated 21.03.2000 passed against him. Along with
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the appeal, he filed various interlocutory applications including
I.A.2/2011 under Section 5 of the Limitation Act. The said appeal
came to be allowed by respondent No.1 vide impugned order at
Annexures - A (in W.P.No.18500/2015) and vide Annexure - K (in
W.P.No.26079/2018) dated 17.03.2014, which is assailed in the
present petitions.
5. In addition to reiterating the various contentions urged
in the petitions and referring to the material on record, learned
counsel for the petitioners in W.P.No.26079/2018 invited my
attention to the impugned order, in order to point out that the
appeal was not maintainable in the light of the judgment of the
Apex Court in the case of P.M.Abubakar Vs. State of Karnataka -
AIR 2016 SC 5602 and the same was liable to be dismissed in
limine. It was also submitted that the Appellate Authority did not
pass any order condoning the delay and without doing so, the
Appellate Authority did not have jurisdiction or authority of law to
entertain the appeal and pass the impugned order, which deserves
to be set aside on this ground also. It is also submitted that since
the petitioners in W.P.No.26079/2018 had purchased the property
after passing of the award, the Appellate Authority did not have
jurisdiction or authority of law to pass any order setting aside the
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same as against the petitioners in W.P.No.26079/2018 and on this
ground also, the impugned order deserve to be set aside. In
support of his submissions, he places reliance upon the following
judgments:
(i) P.M.Abubakar Vs. State of Karnataka &
others - AIR 2016 SC 5602;
(ii) Sri. B.R. Krishnappa Vs. The Deputy
Registrar, Co-operative Societies and others -
W.P.No.34477/2010 dated 09.01.2018;
(iii) Mr. Keshava N. Kotian Vs. The Assistant
Registrar of Co-operative Societies and others -
W.P.No.13578/2018 dated 12.04.2018;
(iv) Janak Raj Vs. Gurdial Singh and another -
AIR 1967 SC 608;
(v) Satya Pal Anand Vs. State of Madhya
Pradesh and others - (2016) 10 SCC 767;
(vi) Smt. Siddamma Vs. Bhavani Housing Co-
operative Society Limited and others - 2016 SCC
Online Kar. 1105;
(vii) Shri. Dharmoji Devendra Kadabi Vs. The
Assistant Commissioner - ILR 1998 Karnataka 1030 &
(viii) B. Bhadragiri Gowda Vs. The State of
Karnataka and others - ILR 2007 Kar. 110.
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6. Per contra, learned counsel for respondent Nos.10 / 6
would support the impugned order and submits that I.A.2/2011 for
condonation of delay had actually been allowed by the Appellate
Authority as can be seen from paragraph 9 of the impugned order
wherein it is stated that the delay had been condoned and
I.A.2/2011 was allowed. It is therefore submitted that there is no
merit in the petitions and the same are liable to be dismissed.
7. A perusal of the impugned order will indicate that in an
unreasoned and cryptic manner, I.A.2/2011 was allowed on the
sole ground that objections were not filed. The various contentions
urged by both sides on I.A.2/2011 for condonation of delay have
neither been considered nor appreciated by the Appellate Authority
before passing the impugned order. So also, the various
contentions of the petitioners in W.P.No.26079/2018 that the delay
should not have been condoned and appeal itself was not
maintainable as well as the judgment relied upon by the petitioners
have been not been adverted to by the Appellate Authority. Under
these circumstances, without expressing any opinion on the merits
/ demerits of the rival contentions, I deem it just and appropriate to
set aside the impugned order and remit the matters back to the
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Appellate Authority for reconsideration of I.A.2/2011 as well as the
appeal afresh, in accordance with law.
8. In the result, I pass the following :
ORDER
(i) The petitions are hereby allowed.
(ii) The impugned order dated 17.03.2014 passed in
Appeal No.6/2011-12 by Deputy Registrar of Co-operative
Societies, Udupi District, Udupi, is hereby aside.
(iii) Matter is remitted back for reconsideration of
I.A.2/2011 afresh in the first instance.
(iv) Liberty is reserved in favour of the parties to file
additional pleadings, objections, documents, etc.,
(v) In the event Appellate Authority comes to the
conclusion that I.A.2/2011 is to be allowed and delay is to be
condoned, then the Appellate Authority would take up the
main appeal on merits and dispose of the same in
accordance with law.
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(vi) All rival contentions on all aspects of the matter
including maintainability, limitation, etc., are kept open and
no opinion is expressed on the same.
(vii) Petitioner/s in both the petitions and the legal
representatives of respondent No.10 / 6 undertakes to
appear before the Appellate Authority on 23.09.2024 without
awaiting further notice.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
SV
