Karnataka High Court
Mr Sridhar B S vs State Of Karnataka on 13 January, 2025
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WP No. 34597 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.34597 OF 2024 (CS-RES)
BETWEEN:
MR. SRIDHAR B.S.
S/O. LATE SHIVALINGAIAH,
EX. DIRECTOR, SIRI VAIBHAVA
SUNDARAM PATTINA SAHAKARI NIYAMITA
AGED ABOUT 49 YEARS,
R/AT NO.374, 9TH MAIN ROAD,
OPP: GOVT. PRIMARY SCHOOL,
VIJAYANAGAR,
BANGALORE - 90. ... PETITIONER
(BY SRI. JAYAPRAKASH SHETTY B., ADVOCATE)
AND:
Digitally signed by 1. STATE OF KARNATAKA
MAHALAKSHMI B M REP. BY ITS PRINCIPAL SECRETARY
Location: HIGH DEPARTMENT OF CO-OPERATION
COURT OF
KARNATAKA M.S. BUILDING,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
SOUHARDA CO-OPERATIVE ARBITRATION COURT
KARNATAKA STATE SOUHARDA
FEDERAL CO-OPERATIVE LTD.,
SOUHARDA SAHAKARA SOUDHA
17TH & 18TH MAIN ROAD,
18TH CROSS MAIN ROAD,
MALLESHWARAM,
BENGALURU - 560 055.
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WP No. 34597 of 2024
3. V. MANAMOHAN
S/O. LATE VIJAYENDRA RAO
AGED ABOUT 76 YEARS,
R/AT NO.G -4, S/M/R DEVAMUKHA APART,
9TH MAIN, VIJAYA BANK LAYOUT,
BILEKAHALLI, BANGALORE - 560 076.
4. M. ANUPAMA
D/O. V. MANAMOHAN,
AGE ABOUT 46 YEARS,
R/AT NO.70 C -1,
2ND MAIN DOLLARS COLONY,
J.P. NAGAR 45TH PHASE,
BANGALORE - 78.
5. C.N. DHARANISH
S/O. C.S. NARASIMHAIAH,
AGED ABOUT 50 YEARS,
SON-IN-LAW OF V MANAMOHAN
R/AT NO.70 C- 1, 2ND MAIN DOLLARS,
J.P. NAGAR 45TH PHASE,
BANGALORE - 78.
6. SIRIVAIBHAVA SOUHARDA PATTINA
SAHAKARI NIYAMITA
NO.18/19, 1ST FLOOR,
MUNIRAMASWAMY BUILDING,
OPP. MASALA HOTEL,
UTTARAHALLI MAIN ROAD,
CHIKKALASANDRA,
BANGALORE - 560 061.
7. THE PRESIDENT- SMT. NAGAVALLI V.R.
W/O. V.R. RAJESH,
AGED ABOUT 47 YEARS,
SRIVAIBHAVA SOUHARDA PATTINA
SAHAKARI NIYAMITA,
NO.18/19, 1ST FLOOR,
MUNIRAMASWAMY BUILDING,
OPP. MASALA HOTEL,
UTTARAHALLI MAIN ROAD,
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WP No. 34597 of 2024
CHIKKALASANDRA,
BANGALORE - 560 061.
8. THE CEO- SRI RAJESH V.R.
S/O. V. RAMAMURTHY
AGED ABOUT 50 YEARS,
SRIVAIBHAVA SOUHARDA PATTINA
SAHAKARI NIYAMITA,
NO.18/19, 1ST FLOOR,
MUNIRAMASWAMY BUILDING,
OPP: MASALA HOTEL,
UTTARAHALLI MAIN ROAD,
CHIKKALASANDRA
BANGALORE - 560 061. ... RESPONDENTS
(BY SRI YOGESH D. NAIK, AGA FOR R-1 & R-2;
SRI C.N. DHARNISH, ADVOCATE FOR R-3,
SRI ADITYA CHATTERJEE, ADVOCATE FOR R-4 & R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR THE RECORDS WHICH ULTIMATELY RESULTED IN
PASSING THE IMPUGNED ORDER PASSED IN DISPUTE-NO.
DRD/KAM.RAA.SAM.SA.NI/658/2022-23 DATED 27.03.2023 BY
THE R-2 ANNEXURE-E; QUASH IMPUGNED ORDER PASSED IN
DISPUTE-NO.DRD/KAM.RAA.SAM.SA.NI/658/2022-23 DATED
27.03.2023 BY THE R-2 ANNEXURE-E; DECLARE THAT THE
DISPUTE RAISED UNDER SEC 39 OF THE KARNATAKA
SOUHARDA SAHAKARI ACT, 1997 BY THE R-3 TO 5, IS
ILLEGAL, WITHOUT JURISDICTION.
THIS WRIT PETITION COMING ON FOR DICTATION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
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WP No. 34597 of 2024
ORAL ORDER
The petitioner challenges the order passed by the
Joint Registrar of Co-operative Society -respondent No.2 in
dispute No.JRD/8:932/658/2022-23 dated 27.03.2023 on
the ground of jurisdiction, legality and for violation of
principles of natural justice.
2. Heard the learned counsel for the petitioner and
learned counsel appearing for respondent Nos.3, 4 and 5.
3. The respondent Nos.3 to 5 filed a complaint
under Section 39 of the Karnataka Souharda Sanyuktha
Sahakari Act, 1997 ('KSS Act 1997' for short) against the
petitioner and 15 others including respondent Nos.6 to 8
seeking recovery of the amount due to respondent Nos.3
to 5 to the tune of Rs.39,08,026/- individually and
collectively and to seize and recover the movable and the
immovable assets of the petitioner and 15 other
respondents including respondent Nos.6 to 8. The
respondent No.2 by the impugned order jointly directed
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the petitioner and the other respondents to pay a sum of
Rs.42,92,464/- with interest at the rate of 12%.
4. In the proceedings before the respondent No.2,
notice was issued to the petitioner, which was returned
'unclaimed' and hence, the notice to the petitioner was
held sufficient.
5. On consideration of the material on record, the
award was passed by respondent No.2 directing the
petitioner along with Srivaibhava Souharda Patina
Sahakari Niyamita ('Society' for short) and other board
members having found guilty, jointly and severally liable
for Rs.42,92,464/- along with interest at the rate of 12%
per annum.
6. Learned counsel for the petitioner submits that
the proper remedy for such claim lies before the Karnataka
Protection of Interest of Depositors in the Financial
Establishment Act, 2004 (KPIDFE, Act) and not under the
KSS Act, 1997 as approached by respondent Nos.3 to 5
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since, respondent Nos.3 to 5 are not the secured creditors
or members of the respondent No.6 - Society. It is further
submitted that the petitioner was not properly served with
the notice for the dispute proceedings as the notice was
returned undelivered and there was no attempt made by
the respondent Nos.3 to 5 to serve the petitioner at his
correct address and hence, the principles of natural justice
have been violated. Further, it is stated that respondent
Nos.3 to 5 have filed an execution petition for attachment
of the petitioner's property based on the impugned order
as the decree is null and void due to lack of jurisdiction,
the impugned order and execution is not sustainable.
7. Per contra, learned counsel appearing for
respondent Nos.3 to 5 by way of preliminary objection
submits that the writ petition is not maintainable as there
is an alternative and equally efficacious remedy available
to the petitioner by invoking Section 46 of the KSS Act,
1997 and the present writ petition under Article 226 of the
Constitution of India is not maintainable and all the
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contentions including the applicability of the statute can be
raised before the appellate authority. Learned counsel
further submits that respondent Nos.3 to 5 had filed
execution proceedings against all the judgment debtors
including the petitioner who was arrayed as judgment
debtor No.13 and the petitioner having entered
appearance before the executing court filed objections and
the objections raised by the petitioner has been outrightly
rejected by the executing court specifically observing that
the impugned award having passed exparte against the
petitioner and the award has remained unchallenged.
8. That the petitioner is blatantly attempting to
circumvent these conditions under appeal through this writ
petition what the petitioner could not do directly and he
cannot be permitted to do indirectly. It is submitted that
the pre-requisite for an appeal to be heard under Section
46 of the KSS Act, 1997 is that 25% of the amount due
under the award must be deposited and an appeal against
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the impugned award in the guise of a writ petition is not
maintainable.
9. That the impugned award has attained finality
way back in the year 2023 and the award has remained
unchallenged. It is stated that the petitioner has
suppressed the material facts about the past litigation
related to the dispute and hence, the present writ petition
has to be dismissed on the said ground itself for
suppression of material facts. In support of his contention,
learned counsel has placed reliance on the following
decisions:
1. K.JAYARAM AND ORS. VS. BANGALORE
DEVELOPMENT AUTHORITY AND ORS.1 (K.JAYARAM)
2. PANDYA MANISHANKER DHANJIBHAI AND
ORS. VS. STATE OF GUJARAT AND ORS.2 (PANDYA
MANISHANKER DHANJIBHAI)
3. CENTRAL BANK OF INDIA VS. STATE OF
KERALA.3 (CENTRAL BANK OF INDIA)
(2022) 12 SCC 815
2021 SCC ONLINE GUJ 543
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4. UNION OF INDIA VS. GM KOKIL.4 (UNION
OF INDIA)
5. ORIENT PAPER AND INDUSTRIES LTD AND
ANOTHER VS. STATE OF ORISSA AND OTHERS.5
(ORIENT PAPER AND INDSUTRIES LTD)
6. CICILY KALLARACKAL VS. VEHICLE
FACTORY.6 (CICILY KALLARACKAL)
10. Learned counsel for respondent No.3 adopts the
submissions made by learned counsel for respondent
Nos.4 and 5.
11. Having heard the learned counsel for the
parties, the point that arises for consideration is,
(i) Whether the exparte order passed under
Section 41 of KSS Act, 1997 is justifiable?
(2009) 4 SCC 94
1984 (SUPP) SCC 196
1991 SUPP (1) SCC 81
(2012) 8 SCC 524
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(ii) Whether the present writ petition is
maintainable in the present facts and
circumstances of this case?
Re: Both the points are taken up together to avoid
repetition of facts.
12. The award being passed under Section 41 of
the KSS Act, 1997, the remedy available to the petitioner
is by filing an appeal under Section 46 of the KSS Act,
1997 including the ground raised regarding the
applicability of the statue. The Apex Court in the case of
CICILY KALLARACKAL stated supra has held at para 4
and 9 as under:
4. Despite this, we cannot help but state in
absolute terms that it is not appropriate for the
High Courts to entertain writ petitions under Article
226 of the Constitution of India against eth orders
passed by the Commission, as a statutory appeal is
provided and lies to this court under the provisions
of the Consumer Protection Act, 1986. Once the
legislature has provided for a statutory appeal to a
higher court, it cannot be proper exercise of
jurisdiction to permit the parties to bypass the
statutory appeal to such higher court and entertain
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petitions in exercise of its powers under Article 226
of the Constitution of India. Even in the present
case, the High Court has not exercised its
jurisdiction in accordance with law. The case is one
of improper exercise of jurisdiction. It is not
expected of us to deal with this issue at any greater
length as we are dismissing this petition on other
grounds.
9. While declining to interfere in the
present special leave petition preferred against the
order passed by the High Court in exercise of its
extraordinary jurisdiction under Article 226 of the
Constitution of India, we hereby make it clear that
the orders of the Commission are incapable of
being questioned under the writ jurisdiction of the
High Court, as a statutory appeal in terms of
Section 27-A(1)(c) lies to this Court. Therefore, we
have no hesitation in issuing a direction of caution
that it will not be a proper exercise of jurisdiction
by the High Courts to entertain writ petitions
against such orders of the Commission.
Emphasis supplied
13. Statutory appeal in terms of Section 46 is
provided under the KSS Act, 1997, there being an
alternative efficacious remedy provided, it is not open for
the petitioner to invoke jurisdiction under Article 226 of
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the Constitution and the present writ petition is not
maintainable, including the question regarding the
maintainability of the dispute under Section 39 of the KSS
Act, 1997 by respondent Nos.3 to 5 was within the
jurisdiction of respondent No.2, and points framed for
consideration are answered accordingly and for the
foregoing reasons, the following:
ORDER
(i) The writ petition is dismissed as not
maintainable.
(ii) Liberty is reserved to approach the
appropriate authority in accordance with
law, if so advised.
(iii) All the contentions are kept open.
(iii) It is made clear that this court has not
expressed the merits or demerits of the
case, other than the maintainability of the
claim under the KSS Act,1997.
Sd/-
________________________
JUSTICE K.S. HEMALEKHA
SS
