Telangana High Court
Smt. Dr. G. Lakshmi, Hyd. And Ano. vs The Prudential Coop. Bank Ltd., ... on 18 November, 2023
Bench: J Sreenivas Rao
HIGH COURT FOR THE STATE OF TELANGANA
WRIT PETITION No.9059 OF 2008
1. Smt. Dr.G.Lakshmi, W/o Dr.D.V.S.Rama Krishna Prasad,
Aged 42 years, R/o Flat No.1, Block No.16,
HIG, Bagh Lingampally, Hyderabad - 44 and another.
....Petitioner
VERSUS
2. The Prudential Cooperative Bank Ltd.,
Rep. by its Official Liquidator, RP Road,
Secunderabad and three others.
... Respondents
DATE OF JUDGMENT PRONOUNCED: 18.11.2023
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
1. Whether Reporters of Local Yes/No
newspapers may be allowed to see the
Judgments?
2. Whether the copies of judgment may Yes/No
be marked to Law Reporters/Journals?
3. Whether Their Ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
_____________________
J. SREENIVAS RAO, J
2
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
+ WRIT PETITION No.9059 OF 2008
% Dated 18.11.2023
# Smt. Dr.G.Lakshmi, W/o Dr.D.V.S.Rama Krishna Prasad,
Aged 42 years, R/o Flat No.1, Block No.16,
HIG, Bagh Lingampally, Hyderabad - 44 and another.
....Petitioner
VERSUS
$ The Prudential Cooperative Bank Ltd.,
Rep. by its Official Liquidator, RP Road,
Secunderabad and three others.
... Respondents
! Counsel for the Petitioner : Sri Pratap Narayan Sanghi.
^ Counsel for the Respondent : Sri M. Venkat Diwakar.
< GIST:
> HEAD NOTE:
? CITATIONS:
1. AIR 1997 SC 856
2. 2015 4 ALD 270(DB)
3. 2015(1) ALD 278
4. 2009(6) ALD 544
5. 2005 (5) ALD 32
3
HON'BLE SRI JUSTICE J.SREENIVAS RAO
W.P.No.9059 OF 2008
ORDER:
This writ petition is filed seeking writ of certiorari calling
for records pertaining to OP.No.38 of 2004 dated 06.04.2005 from
AP/TS Cooperative Tribunal Hyderabad and dismiss the same and
also all the consequential orders including the order passed by
respondent No.3 in Claim Petition No.1 of 2006 in E.P.No.127 of
2006 in O.P.No.38 of 2004 dated 29.09.2007.
2. BRIEF FACTS OF THE CASE:
Petitioners submit that they are the absolute owners and
possessors of the House bearing Nos.1-8-248 and 1-8-248/1,
consisting of ground and first floors situated at Chikkadpally,
Hyderabad ('Scheduled property' for brevity) and the same was
purchased from respondent No.2 through registered sale deeds
vide documents dated 24.06.2004, bearing Nos.1786 of 2004 and
1807 of 2004. They further stated that originally they were
tenants of respondent No.2 and were running nursing home in the
Scheduled property. Respondent No.2 offered to sell the Scheduled
property and the petitioners after verifying the documents,
requested him to furnish the original sale deed dated 07.01.1960
in turn, he informed that he availed loan from M/s. Federal Bank,
Lakdikapool, Hyderabad by pledging the original sale deed as
collateral security and he furnished the loan account particulars
and correspondence papers and the petitioners after verification of
the said documents including E.C they have obtained legal
opinion. Thereafter, they got issued a public notice in Vaartha
Daily newspaper of Hyderabad and Vijayawada editions on
09.03.2004 and invited objections, if any and no one made
objections. Thereafter, the petitioners have entered into agreement
of sale on 12.04.2004, to purchase the Scheduled property for total
consideration of Rs.12.00 Lakhs, each, on a condition that
respondent No.2 shall clear the loan obtained by him from the
Federal Bank and get the title deed dated 07.01.1960 released
from the bank for which respondent No.2 has agreed and the
petitioner's paid the sale consideration. Respondent No.2 cleared
the loan amount with Federal Bank on 12.04.2004 and furnished
the original documents along with no objection letter dated
12.04.2004 from the above said Bank. Thereafter, the petitioners
have paid balance sale consideration and respondent No.2
executed registered sale deeds in favour of the petitioners on
24.06.2004 and since then they have been in peaceful possession
and enjoyment of Schedule property with absolute rights and their
names were mutated in the Municipal records and they are paying
municipal taxes and they are running nursing home.
2.1. Petitioners further stated that on 22.11.2006, respondent
No.3 issued notice under Rule 52(11) (b) and (c) of AP Cooperative
Societies Rules in E.P.No.127 of 2006 in O.P.No.38 of 2004. After
enquiry the petitioners came to know that respondent No.2 has
obtained loan from respondent No.1 allegedly depositing the title
deeds in respect of Scheduled property as security and failed to
discharge the loan amount. Respondent No.1 bank has filed
OP.No.38 of 2004 invoking the provisions of AP Mutually Aided
Cooperative Societies Act 1995('Act' for brevity) before Cooperative
Tribunal, Hyderabad against respondent No.2 and others and
obtained ex-parte Award/decree on 06.04.2005, thereafter filed
E.P.No.127 of 2006 for execution of the said Award before
respondent No.3. In the said case, the petitioners filed claim
petition vide I.A.No.1 of 2006 in E.P.No.127 of 2006 in O.P.No.38
of 2004, raising several grounds stating that they have purchased
the Scheduled property through registered sale deeds on
24.06.2004 and they are bonafide purchasers and they are having
right, interest, title over the property and before purchasing the
said property they have issued the public notice inviting
objections, if any. They further submitted that alleged mortgage
deeds executed in favour of respondent No.1 are not registered
documents and the same required registration and the petitioners
are having right, interest and title over the subject property and
prayed respondent No.3 to consider the claim of the petitioners.
Respondent No.3 without properly considering the grounds raised
in the claim petition passed the impugned order without giving any
reason simply stating that ex-parte award passed by Cooperative
Tribunal dated 06.04.2005, has become final and respondent No.2
has committed default and claim of the bank against respondent
No.2 is established and there is no merit in the claim petition.
Questioning the said order, the petitioners filed the present writ
petition.
3. Heard Sri Pratap Narayan Sanghi, learned Senior Counsel
and Sri M.Venkata Diwakar, learned counsel appearing on behalf
of respondent No.1 and in spite of service of notices, respondent
Nos.2 and 4 have not entered appearance.
4. Learned Senior Counsel contended that petitioners are
originally tenants of the Scheduled property and they are running
nursing home in the name and style of Shree Hospital.
Respondent No.2 who is the owner of the said property offered to
sell the same. Petitioners after due verification of the records
including encumbrance Certificate and after obtaining the legal
opinion they have entered agreement of sale on 12.04.2004 and
they issued a public notice informing General public in two news
papers calling objections, if any, and no one has made objections
including respondent No.1 and after expiry of the time mentioned
in the said notice, petitioners have obtained the registered sale
deed by paying balance sale consideration on 24.06.2004 and their
names were mutated in the municipal records and they are paying
the property tax and they are absolute owners and possessors of
the Scheduled Property.
4.1 He further contended that respondent No.1 sanctioned the
loan to the respondent No.2 basing upon the unregistered
documents i.e., mortgage by depositing title deeds and the same
required registration as per the provisions of Registration Act,
1908. Hence, the entire transaction is contrary to law. He also
contended that claim petition filed by the petitioners is very much
maintainable and respondent No.3 has to adjudicate the said
claim petition as a independent suit, but respondent No.3 without
considering the grounds raised by the petitioners in the claim
petition, passed the impugned order without giving any reasons
simply holding that the ex-parte award passed by Cooperative
Tribunal dated 06.04.2005, is unchallenged and respondent No.1
proved that respondent No.2 has availed the loan and committed
default and the same is contrary to law.
4.2 He further contended that as per the provisions of Order
XXI Rule 58 of CPC claim petition/objection filed by the petitioners
has to be determined and decided as independent suit and as per
the provisions of Order XXI Rule 58 of CPC, as the petitioners
purchased the Scheduled property through registered documents,
by paying valuable sale consideration and they are in possession of
the property, they are having right, interest, title over the said
property. Respondent No.3 without following the mandatory
procedure prescribed under law passed the impugned order. He
also contended that as per the provisions of AP/TS Mutually Aided
Cooperative Society Act, 1995 against the impugned order passed
by respondent No.3, no remedy of appeal is provided and the writ
petition filed by petitioners is very much maintainable under law.
In support of his contentions he relied upon the following
judgments:
1) Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal 1
2) The Prudential Cooperative Bank Ltd. Vs. The
A.P.Cooperative Tribunal at MJ Market, Nampally,
Hyderabadand others 2.
5. Per contra, learned counsel appearing on behalf of
respondent No.1-bank submits that writ petition filed by the
petitioners is not maintainable under law as per the provisions of
AIR 1997 SC 856
2015 4 ALD 270 (DB)
Rule 52(21) and Rule 52(21)(c) of Telangana Cooperative Societies
Rules 1964(for brevity 'Rules') and the petitioners ought to have
filed the suit before competent Civil Court. He further contended
that respondent No.2 availed the loan from respondent No.1 bank
by creating mortgage by depositing the title deeds and that the
debt between respondent No.1 and respondent No.2 is secured
debt and the claim petition filed by the petitioners invoking the
provisions of Rule 21-A of Rules is not maintainable in respect of
mortgaged property. He further contended that subject property
was not attached by the respondent No.1 bank and the question of
consideration of the application filed by the petitioners as a
independent suit does not arise and the provisions of the Order
XXI Rule 58 of CPC is not applicable. He further contended that
the charge created by respondent No.2 in favour of respondent
No.1 bank is first charge. Respondent No.2 availed the loan from
Federal Bank subsequent to the loan availed from the respondent
No.1 bank and the petitioners without verifying the same
purchased the property which was already under mortgage in
favour of respondent No.1 bank and they are not entitled to raise
any claim on the Scheduled property. In support of his
contentions he relied upon the following judgments:
1) Indian Bank v. Nallam Veera Swamy 3.
2) Gopana Subba Rayudu v. Pasupuleti Venkata Ramana 4.
6. Having considered the rival submissions made by
respective parties and upon perusal of the material available on
record following points arises for consideration.
1. Whether the impugned order passed by respondent No.3
dismissing the claim petition filed by the petitioner invoking the Rule
21(a) of AP/TS Cooperative Rules 1964 is in accordance with law?
2. Whether the writ petition filed by the petitioner under law
invoking the provisions of Article 226 of Constitution of India is
maintainable?
3. Whether the petitioners are entitled any relief sought in this writ
petition?
7. It is undisputed fact that the petitioners have purchased
the Scheduled property from respondent No.2 through registered
sale deeds dated 24.06.2004 and their names were mutated in the
concerned records and they are in physical possession of the said
property. It also reveals from the record that respondent No.2
availed the loan from Federal Bank and after clearing the said loan
he sold the Scheduled property in favour of the petitioners. The
petitioners prior to obtaining the registered sale deeds they have
2015 (1) ALD 278
2009 (6) ALD 544
issued public notice in two daily newspapers which are having vide
publication informing the general public that they entered into
agreement of sale to purchase the Scheduled property from
respondent No.2 calling objections. Pursuant to the said notice,
no one has made objections including respondent No.1 bank. It
further appears from the records that in the encumbrance
certificate also mortgage/deposit of title deeds in favour of
respondent No.1 bank was not reflected.
8. The records further reveals that respondent No.1 filed
O.P.No.38 of 2004 before Cooperative Tribunal, Hyderabad,
against respondent No.2 and two others wherein the petitioners
are not parties and the respondents therein have not contested the
matter and the Cooperative Tribunal passed the ex-parte award on
06.04.2005. Respondent No.1 bank filed E.P.No.127 of 2006 for
enforcement of the said award. In the said E.P. respondent No.3
issued notice. As soon as after receiving the notice in the said
E.P., the petitioners came to know about passing of the ex-parte
award and they filed claim petition No.1 of 2006 to resist the
execution of the award by raising several grounds that they are
having right, interest, title over the Scheduled property, pursuant
to the registered sale deed dated 24.06.2004, executed by
respondent No.2 and they are bonafide purchasers and respondent
No.3 without adjudicating the objections raised by the petitioners
and without giving any reasons passed the cryptic order.
9. It is very much relevant to mention here that even
assuming that the provisions of Order XXI Rule 58 of CPC is not
applicable to the petitioners, they are entitled to resist the delivery
of possession of immovable property to decree holder purchaser by
making objections invoking provisions of Order XXI Rule 97 of
CPC. It is very much relevant to extract above said provision
which reads as follows:
"97. Resistance or obstruction to possession of immovable property,-
(1) Where the holder of a decree for the possession of immovable
property or the purchaser of any such property sold in execution of a
decree is resisted or obstructed by any person in obtaining possession
of the property, he may make an application to the Court complaining
of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall
proceed to adjudicate upon the application in accordance with the
provisions herein contained."
10. In Brahmdeo Chaudhary (supra 1) the hon'ble Apex
court held as follows:
The court emphasizes that Order 21 of the Civil Procedure Code
provides an extensive framework for addressing disputes related to the
execution of possession decrees. When somebody else resists the
decree, the decree-holder's remedy is exclusively under Order 21, Rule
97, sub-rule (1). The court rejects the notion of bypassing this
procedure and insists on following the prescribed process. It criticizes
the High Court's view that a stranger's only remedy lies in Order 21,
Rule 99, disregarding the prior stage outlined in Order 21, Rule 97,
thus violating principles of natural justice.Parallel proceedings are
discouraged by the statutory structure, which extends from Rule 97 to
Rule 103, and is regarded as an extensive code.
In the above judgment the Hon'ble Apex Court held that the
person who is in possession of the immovable property is entitled
to resist the delivery of possession to decree-holder or purchaser
by invoking the provisions of Order XXI Rule 97 of CPC.
11. In the Prudential Cooperative Bank Ltd(supra 2)this
court held that :
The judgments scrutinize the application of provisions from the
1964 Act, notably Rule 52, in the context of executing awards under
the A.P. Mutually Aided Co-operative Societies Act, 1995. Furthermore,
they address the interpretation of Section 36 of the 1995 Act,
suggesting a statutory right to appeal despite its absence. This
underscores the legislative nature of creating an appeal right, beyond
the court's power to confer or deduce. The text queries the practicality
of appealing orders under Section 37 of the 1995 Act to the Co-
operative Tribunal, emphasizing the potential absurdity of appealing to
the same entity that issued the order. Additionally, it delves into the
applicability of Rule 52 from the Andhra Pradesh Cooperative Societies
Rules, 1964, in executing awards under the 1995 Act. The emphasis
lies on interpreting and applying statutory provisions judiciously to
prevent rendering them ineffective. The overarching principle is the
pragmatic and purposeful interpretation of statutory provisions.
In the result, we answer the reference holding that a person
aggrieved by a decision of the Tribunal under Section 37 of the 1995
Act, has no statutory remedy of an appeal there against, much less to
the Tribunal itself, and the judgment in S. Varalakshmi1, to the extent
it held that an appeal lies to the Tribunal, does not lay down the
correct law. The Tribunal is also entitled to invoke Rule 52 of the 1964
Rules, and to follow the procedure prescribed therein, in executing
awards under the 1995 Act.
In the above judgment the Division Bench of this Court held that
aggrieved by the decision of the Tribunal Under Section 37 of the
1995 Act no statutory remedy of appeal is provided and the
Tribunal is having power to invoke Rule 52 of the 1964 Rules.
Hence the application filed by the petitioner is maintainable before
respondent No.3.
12. In the case of Indian Bank (supra3), the court emphasized
that no claim petition would be maintainable under Section 47 or
Order 21 Rule 58 in the execution of a mortgage decree. The court
clarified that during the execution of a mortgage decree; only the
incorporeal right is brought to sale and not the physical property.
According to the Transfer of Property Act, 1882, specifically under
sections 58 and 60, the right of the mortgagor is referred to "equity
of redemption" and the principle against clogs on the equity of
redemption, mortgagor's right to redeem should not be taken away
or limited by any contractual agreement between the parties. As
long as the mortgagor retains the right to redeem the mortgage,
they have the option to pay off the debt along with interest,
thereby reclaiming possession of the mortgaged property. This
legal position remains in force until the property is sold under a
decree of sale executed in accordance with the provisions outlined
in Order 34 of the Code of Civil Procedure (CPC).
13. In the case of Gopana Subba Rayudu (Supra 4), the court
held that the filing of a claim petition under the provisions of CPC
Order 21 Rule 58 is permissible only when the property in has
been attached or is pending disposal. The court held that parties
do not have the entitlement to submit a claim petition if the
property has not been attached.
14. In the above cases this Court held that in respect of
mortgaged property provisions of Order XXI Rule 58 are not
applicable, in the present case the petitioners are claiming the
rights over the Scheduled property basing on the registered sale
deed documents dated 24.06.2004 and they are in physical
possession of the said property, hence, they are entitled to make
resistance/objections invoking the provisions of Order XXI Rule
97.
15. It is already stated supra that petitioners and respondents
raised several disputed questions of facts and respondent No.3
without considering the same passed the impugned order and the
same is contrary to law. Point No.1 is answered accordingly.
16. In G. Gangaram Vs. APSEB, Hyderabad 5 this Court
relying upon the judgment of division bench of this Court in
2005 (5) ALD 32
2003 (5) ALD 599 (DB) specifically held in paragraph No.6
that the writ petition which has been admitted and pending
in this Court for more than eleven years, it is neither just nor
proper for this Court to now refuse to exercise the discretion
and dismiss the writ petition on the ground of availability of
alternative remedy which reads as follows:
6. Existence of alternative remedy is not a bar for exercise
of jurisdiction under Article 226 of the Constitution of India. It
is well settled that while existence of an effective alternative
remedy would be a factor to be taken into consideration by
this Court for invoking its jurisdiction under Article 226 of the
Constitution, it does not bar the jurisdiction of this Court to
entertain a writ petition solely on the ground that the
alternative remedy has not been exhausted. This Court under
Article 226 of the Constitution of India, normally refuses to
exercise its discretion to interfere at the threshold on the
ground of availability of an effective alternative remedy.
Having admitted the writ petition, which has been pending in
this Court for more than eleven years, it is neither just nor
proper for this Court to now refuse to exercise its discretion
and dismiss the writ petition on the ground of availability of
alternative remedy.
17. In so far as point No.2 is concerned, the petitioner filed
present writ petition before this Court on 21.04.2008 and the
same was admitted on 23.04.2008 and interim stay was also
granted and respondent No.1 filed counter on 28.11.2022. In view
of the above judgment, after lapse of more than 15 years the
respondent bank is not entitled to raise such objection of
maintainability of the writ petition. Hence, point No.2 is answered.
18. In view of the foregoing reasons, the impugned order dated
29.09.2007 passed by respondent No.3 is liable to be set aside.
Accordingly set aside and the respondent No.3 is directed to pass
appropriate orders on merits in the claim petition No.1 of 2006 in
E.P.No.127 of 2006 in O.P.No.38 of 2004, in accordance with law,
by giving opportunity to the petitioners as well as respondent No.1
bank as early as possible preferably within a period of two(2)
months from the date of receipt of a copy of this order. It is
needless to observe that the amount deposited by the petitioner,
pursuant to the interim order dated 23.04.2008 granted by this
Court, shall continue in Fixed Deposited Receipt in the same bank
till the disposal of the claim Petition No.1 of 2006 and the said
deposit is subject to outcome of the above claim petition No.1 of
2006. Point No.3 is answered accordingly.
19. With the above directions, the writ petition is disposed of
accordingly. No costs.
As a sequel thereto, miscellaneous applications, if any,
pending in this writ petition, shall stand closed.
_____________________________
JUSTICE J. SREENIVAS RAO
18th November, 2023
PSW
