Allowed

The Amanath Co-Operative Bank Ltd. v. Mr Rafi Baigh.a M

Karnataka HC20 Sept 2022WP/6953/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order by the Joint Registrar of Co-operative Society. The Court set aside the Registrar's order keeping proceedings in abeyance, ruling it illegal as the Tribunal's remand ordered the society, not the petitioner, to secure documents. The Court expressed no opinion on merits regarding document custody.

What did the court decide?

Impugned order dated 08.08.2017 by Joint Registrar set aside; application by respondents dismissed; JR instructed to proceed expeditiously.

The Amanath Co-Operative Bank Ltd. Vs Mr Rafi… — Cooperative Societies | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF SEPTEMBER, 2022 BEFORE

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THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR

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WRIT PETITION NO.6953 OF 2018 (CS - RES)

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BETWEEN

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THE AMANATH CO-OPERATIVE BANK LTD., NO.43, HOSPITAL ROAD, SHIAVJINAGAR BENGALURU-560 051

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REPRESENTED BY ITS CEO SRI H. CHANDRASHEKAR AGED ABOUT 64 YEARS, S/O K. H. SHYAM …PETITIONER

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(BY SRI S.SUBASH, ADVOCATE)

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AND

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MR. RAFI BAIGH. A. M AGED ABOUT 54 YEARS, S/O LATE AMEER BAIG R/AT NO.198/1, KHAWAJA MANSION DAS COMPOUND, 1^ST CROSS R.V. ROAD, CROSS BASAVANAGUDI BENGALURU-560 004

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MR. SHAKEEL PASHA AGED ABOUT 56 YEARS, S/O SHARIFF KHALIQ R/AT NO.11, LEONARD LANE RICHMOND TOWN BENGALURU-560 025

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MR. AKRAM KHAN AGED ABOUT 56 YEARS, S/O ISMAIL KHAN R/AT NO.8, 3^RD CROSS, SUSHEELA ROAD, DODDAMAVALLI BENGALURU-560 004

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MRS. FARAH RAFFI AGED ABOUT 48 YEARS, W/O RAFI BAIGH A.N. R/AT NO.198/1, DAS COMPOUND, R.V. ROAD, CROSS BASAVANAGUDI BENGALURU-560 004

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THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETY R/AT NO.1, ALI ASKER ROAD, BENGALURU-560 052

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…RESPONDENTS

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(BY MS. VIJETHA.R.NAIK FOR R1 & R4; SMT.H.C.KAVITHA, HCGP FOR R5 R2 IS SERVED & R3 IS SERVED THROUGH PAPER PUBLICATION V/O DATED:10.03.2021)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE JOINT REGISTRAR DTD:8.8.2017 AT ANNEXURE-K TO THE WRIT PETITION AND CONSEQUENTLY REJECT THE APPLLICATION FILED BY THE RESPONDENTS ON 3.4.2017 BY ALLOWING THE PRESENT PETITION.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING B-GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In this writ petition, the petitioner has sought for the following reliefs:

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“a) Issue a Writ in the nature of certiorari quashing the order passed by the Joint Registrar dated 08.08.2017 in dispute No.JRD/UBF/1504/04-05 at Annexure “K” to Writ Petition and consequently, reject the application filed by the Respondents on 03.04.2017 by allowing the present Petition

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b) grants costs”

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Heard learned counsel for the petitioner and also learned counsel for the respondents and perused the material on record.

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This petition is directed against the impugned order at Annexure-K dated 08.08.2017 passed by respondent No.5-Joint Registrar of Co-operative Society (for brevity “JRCS”), whereby respondent No.5 allowed the application dated 03.04.2017 filed by the private answering respondents in the proceedings before him and

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consequently kept the proceedings in abeyance till the petitioner-Bank produces the original documents.

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Heard learned counsel for petitioner and learned counsel for respondent Nos.1 to 4 and perused the materials on record. The material on record discloses that in the first instance, vide order dated 06.03.2013, the Karnataka Appellate Tribunal, Bangalore set aside the order dated 15.09.2009 passed by JRCS and allowed the appeal preferred by private answering respondents and remitted the matter back to JRCS for reconsideration afresh with a direction to the JRCS to secure the original loan documents and proceed further in accordance with law.

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Subsequently, during the pendency of the proceedings before JRCS, the private answering respondents herein filed an application dated 05.09.2014 for a direction to the petitioner to comply with the directions issued by KAT, Bangalore in its remand order dated 06.03.2013 referred to supra. The said application

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having been opposed by the petitioner herein, the JRCS rejected the said application vide order dated 09.09.2014, aggrieved by which they preferred a Revision Petition No.55/2014 before the KAT, Bangalore. The said Revision Petition was also dismissed by the KAT, Bangalore vide order dated 18.09.2015.

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Subsequently, the private answering

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respondents filed one more application dated 03.04.2017 requesting the JRCS to keep the matter in abeyance till production of original documents. Though the said application was opposed by the petitioner, JRCS has proceeded to pass the impugned order allowing the said application thereby keeping the proceedings in abeyance till the petitioner produces original documents as allegedly directed by KAT, Bangalore in its aforesaid remand order.

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Aggrieved by the impugned order passed by

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the JRCS, the petitioner is before this Court by way of the present petition.

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Per contra, learned counsel for respondent Nos.1 to 4 submits that there are no merits in the petition and the same is liable to be dismissed.

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A perusal of the impugned order passed by respondent No.5 JRCS will indicate that respondent No.5 has proceeded to allow the application filed by the private answering respondents on the ground that the petitioner has not produced the original documents as directed by KAT, Bangalore in its remand order dated 06.03.2013. However, a perusal of the said remand order dated 06.03.2013 will indicate the same reads as under:

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“The appeal filed u/s 105 of the Karnataka Co-operative Societies Act, 1959 is hereby allowed setting aside the order dated 15.09.2009 passed by the 2^nd respondent in dispute No.JRD/UBF/1504/04-05 holding that the matter is hereby remanded back to the 2^nd respondent with a direction to him to secure all the original loan documents before him and then to dispose of the matter afresh in

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accordance with law after both the parties being afforded the opportunity to be heard.”

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As can be seen from the aforesaid remand order, there is no direction issued by the KAT, Bangalore, directing the petitioner-Bank to produce the documents. Infact it is respondent No.2-JRCS to whom the matter was remanded who was directed specifically by KAT to secure the original documents and in the absence of any direction issued to the petitioner to Bank to produce original loan documents, respondent No.5 clearly fell in error in coming to the conclusion that the petitioner has not produced the original documents in terms of the remand order passed by KAT without appreciating that no such direction was issued by KAT, Bangalore in its order dated 06.03.2013, directing the petitioner to produce the original documents and consequently, the impugned order is illegal, arbitrary and contrary to the material on record and deserves to be set aside.

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It is also relevant to state that while learned counsel for the petitioner submits that the original documents are not in his custody and it was in the custody of JRCS, learned counsel for the answering private respondents would controvert the said submission and submit that the petitioner is deliberately and willfully suppressing material facts and withholding documents and as such necessary directions have to be issued to the petitioner in this regard. The said submission made by the the learned counsel for the answering private respondents

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is controverted further by the learned counsel for the petitioner who submits that the petitioner has produced all original documents available with him before the JRCS and apart from the documents already produced by him, the petitioner does not have any other documents in his custody or possession and consequently the petitioner cannot be compelled to produce documents which are not in his custody or possession. It is also submitted that the private respondents are also withholding documents.

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After considering the rival contentions with

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regard to production/non-production of the documents by the petitioner and by the respondents, without expressing any opinion on the merits/demerits of the rival contentions, I deem it appropriate to reserve liberty in favour of parties in the proceeding to request the JRCS to draw inference/adverse inference against the other party for non-production of the documents by either party as the case may be. In the result, I pass the following order:

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ORDER

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(i) Petition is hereby allowed .

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(ii) The impugned order passed by the Joint Registrar dated 08.08.0017 in Dispute No.JRD/UBF/1504/04-05 at Annexure-K is hereby set aside and consequently, the application filed by respondents dated 03.04.2017 is hereby dismissed.

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(iii) All rival contentions on merits are kept open and no opinion is expressed on the same. The JRCS is directed to proceed

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further in the matter and dispose of the proceedings as expeditiously as possible and in accordance with law.

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(iv) Liberty is reserved in favour of both parties to request the GRCS to draw inference/adverse inference against other party for non-production of documents/original documents by the other side as the case may be. Liberty is also reserved in favour of both sides to cross-examine the other side, on all aspects of the matter.

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Sd/JUDGE

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GVP

The Amanath Co-Operative Bank Ltd. v. Mr Rafi Baigh.a M

Case brief

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What did the court decide?

The Amanath Co-Operative Bank Ltd. v. Mr Rafi Baigh.a M

Case brief

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