Allowed

Smt Nagalambika D H v. the Joint Registrar of Co-Operative

Karnataka HC19 Sept 2022WP/7388/2022

Case brief

AI extract

What is this about?

The High Court held that a co-operative bank cannot attach the property of a non-member wife in proceedings under Section 70 initiated against the husband. The petition seeking to quash orders attaching the petitioner's self-acquired property was allowed.

What did the court decide?

Impugned orders dated 29.11.2016 and 14.03.2022 quashed; attachment of petitioner's property set aside.

Smt Nagalambika D H Vs the Joint Registrar of… — Cooperative Societies | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF SEPTEMBER 2022

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BEFORE

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

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WRIT PETITION NO.7388 OF 2022 (CS-RES)

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BETWEEN:

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SMT NAGALAMBIKA D H W/O A P VIRUPAKSHAIAH AGED ABOUT 45 YEARS R/O NO. 53, 7^TH C MAIN RPC LAYOUT, VIJAYANAAR BENGALURU - 560 040

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... PETITIONER

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(BY SRI. Y.R.SADASHIVA REDDY, SR. COUNSEL FOR SRI. JAI PRAKASH REDDY M, ADVOCATE)

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AND:

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1 . THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES BENGALURU DIVISION SAHAKARA SOUDHA MALLESHWARAM BENGALURU - 560 003

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2 . BENGALURU, BENGALURU RURAL AND RAMANAGARA DISTRICT CENTRAL CO-OPERATIVE BANK LTD NO.6, LAKSHMI SADANA 5^TH MAIN ROAD, CHAMARAJAPETE, BENGALURU - 560 018 BY ITS CHIEF EXECUTIVE

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3 . SRI. A P VIRUPAKSHAIAH AGED ABOUT 47 YEARS R/O NO.53, 7^TH C MAIN RPC LAYOUT, VIJAYANAGAR BENGALURU - 560 040

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4 . K KRISHNA MURTHY R/O NO.4, TEJASRI NILAYA 1^ST CROSS, CHANNAPPA LAYOUT KOTIGEPALYA NAGARABHAVI BENGALURU - 560 093

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5 . M. MALLIKARJUNAIAH , MANAGER BBR & RDCC BANK LTD SILK EXCHANGE BRANCH MELUKOTE KANAKAPRUA TOWN & TALUK RAMANGARA DISTRICT - 562 159

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6 . K A PADMAVATHI MANAGER NO.20, 6^TH CROSS, PIPE LINE MAIN ROAD, NEAR DATHATHREYA TEMPLE, MALLESHWARAM BENGALURU - 03

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7 . L MUNE GOWDA NO. 1124, 3^RD CROSS, 2^ND MAIN, 5^TH STAGE RAJARAJESHWARINAGARA BENGALURU - 98

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8 . RAMOHALLI VYAVASAYA SEVA SAHAKARA SANGHA NI RAMOHALLI, KENGERI HOBLI, BENGLAURU SOUTH TALUK

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BENGALURU - 560 074 REP BY ITS SECRETARY

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9 . CHOLANAYAKANAHALLI VYAVASAYA SEVA SAHAKARA SANGHA NI CHOLANAYAKANAHALLI, TAVAREKERE HOBLI, THIPPAGONDANAHALLI POST BENGALURU SOUTH TALUK BENGALURU - 74 REP BY ITS SECRETARY

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10 . BIDARAHALLI RAITHA SEVA SAHAKARA SANGHA LTD., BIDARAHALLI, BENGALURU EAST TALUK BENGALURU - 49 REP BY ITS SECRETARY

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11 . TAVAREKERE VYAVASAYA SEVA SAHAKARA SANGHA NI TAVAREKERE MAGADI MAIN ROAD, TAVAREKERE HOBLI, BENGALURU SOUTH TALUK BENGALURU - 30 REP BY ITS SECRETARY

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12 . T V SIDAPPA, PRESENT DIRECTOR TAVAREKERE VYAVASAYA SEVA SAHAKARA SANHA NI TAVAREKERE MAGADI MAIN ROAD, TAVAREKERE HOBLI, BENLAURU SOUTH TALUK BENGALURU - 30

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13 . B NAGARAJU PRESENT CHIEF EXECUTIVE OFFICER TAVAREKERE VYAVASAYA SEVA SAHAKARA SANGHA NI TAVAREKERE

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MAGADI MAIN ROAD, TAVAREKERE HOBLI, BENGALURU SOUTH TALUK BENGALURU - 30

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14 . C BASAPPA PRESENT DIRECTOR CHOLANAYAKANAHALLI VYAVASAYA SEVA SAHAKARA SANGHA NI. CHOLANAAKANAHALLI TAVAREKERE HOBLI, THIPPAGONDANAHALLI POST BENGALURU SOUTH TALUK BENGALURU - 74

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15 . NARAYANA PRESENT CHIEF EXECUTIVE OFFICER CHOLANAYAKANAHALLI VYAVASAYA SEVA SAHAKARA SANGHA NI. CHOLANAYAKANAHALLI, TAVAREKERE HOBLI, THIPPAGONDANAHALLI POST BENGALURU SOUTH TALUK BENGALURU - 74

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16 . M RAJANNA PRESENT DIRECTOR BIDARAHALLI RAITHA SEVA SAHAKARA SANGHA LTD BIDARAHLLI, BENGALURU EAST TALUK BENGALURU - 49

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17 . M BHARATH PRESENT CHIEF EXECUTIVE OFFICER BIDARAHALLI RAITHA SEVA SAHAKARA SANGHA LTD BIDARAHALLI, BENGALURU EAST TALUK BENGALURU - 49

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18 . B JAYARAM PRESENT DIRECTOR RAMOHALLI VYAVASAYA SEVA SAHAKARA SANGHA NI. RAMOHALLI KENGERI HOBLI, BENGALURU SOUTH TALUK BENGALURU - 74 19 . M SURESH PRESENT CHIEF EXECUTIVE OFFICER RAMOHALLI VYAVASAYA SEVA SAHAKARA SANGHA NI. RAMOHALLI, KENGERI HOBLI, BENGALURU SOUTH TALUK BENGALURU - 74 20 . SMT. ANASUYA KRISHNAMURHTY W/O K KRISHNAMURHTY AGED ABOUT 47 YEARS PROPRIETOR OF M/S SURAJ DIGITAL PRINTS R/O NO.4, TEJA NILAYA 1^ST CROSS CHANNAPPA LAYOUT KOTTIGEPALYA VISHWANEEDUM POST BENGALURU - 560 093

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...RESPONDENTS

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(BY SMT. H.C.KAVITHA, HCGP FOR R1; SRI. D.K.SRIRAMAPPA, ADVOCATE FOR R2; R3 IS SERVED; NOTICE TO R4-R20 IS DISPENSED WITH VIDE ORDER DATED 19.04.2022)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT ORDER OR DIRECTION QUASHING THE ORDER DATED 29.11.2016 IN DISPUTE

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NO.JRB/MD/37/2015-16 VIDE ANNEXURE-E PASSED BY THE RESPONDENT NO.1 AND THE ORDER DATED 14.03.2022 IN COP APPEAL NO.80/2017 VIDE ANNEXURE-F PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL; b) PASS ANY SUCH OTHER WRIT OR ORDER OR DIRECTION AS DEEMS FIT UNDER THE CIRCUMSTANCES OF THE CASE INCLUDING AN ORDER FOR COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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

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"a) A writ in the nature of certiorari or any other appropriate writ order or direction quashing the order dated 29.11.2016 in Dispute No.JRB/MD/37/2015-16 vide Annexure-E passed by the respondent No.1 and the order dated 14.03.2022 in COP.Appeal No.80/2017 vide Annexure-F passed by the Hon'ble Karnataka Appellate Tribunal.

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b) Pass any such other writ or order or direction as deems fit under the

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circumstances of the case including an order for costs in the interests of justice and equity."

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Heard learned Senior counsel for the petitioner, learned High Court Government Pleader and learned counsel for respondent No.2. Perused the material on record.

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The material on record indicates that

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respondent No.2 - Co-operative Bank has raised a dispute before respondent No.1 - Joint Registrar of

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Co-operative Societies (hereinafter referred to as 'JRCS') under Section 70 of the Karnataka Cooperative Societies Act, 1959. In the said dispute petitioner's husband Sri.A.P.Virupakshaiah, who is arraigned as respondent No.3 herein and remaining respondent Nos.4 to 20 herein were arraigned as opposite party respondents. In the said proceedings, pursuant to an application made by respondent No.2 - Bank immovable property

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belonging to the petitioner herein was attached to by JRCS.

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Subsequently, the petitioner herein

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claimed that the said property was absolutely selfacquired property and was not capable of being attached and filed objections to the instant application under Section 103 of the Act seeking raising of attachment of her self-acquired property. Respondent No.2 - Bank passed orders confirming the attachment of the property. Against the said order, petitioner filed appeal before Karnataka Appellate Tribunal, which also came to be dismissed vide order dated 14.03.2022. Aggrieved by the same petitioner herein has come up with this petition.

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Per contra learned counsel for respondent No.2 - Bank would submit that impugned orders are passed in accordance with law and there is no merit in the petition. He would

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further submit that since the schedule property was purchased by respondent No.3 who is the husband of the petitioner herein, the said property was capable of being attached and consequently impugned orders do not warrant any interference by this Court in the present petition.

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The material on record discloses that it is an undisputed fact that respondent No.3 - A.P.Virupakshaiah is one of the members of respondent No.2 - Bank. It is also not in dispute that though the petitioner is the wife of respondent No.3, she is not a member of the respondent No.2 -

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Bank and no dispute was raised by respondent No.2

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Bank against petitioner and only respondent No.3 and respondent Nos.4 to 20 were parties before JRCS and the petitioner herein, who was not a party to the said proceedings. Under these circumstances, question of attachment of a property belonging to a non-member who was not a party to the aforesaid

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proceedings does not arise and the same is illegal and arbitrary as held by Division Bench of this Court in the case of Bangalore Rural and Ramanagar District Central Co-operative Bank Ltd Vs. G.Kavalappa & Ors (W.A.No.274/2012 & W.A.No.3444/2013) . In the said judgment, this

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Court has held as under:

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"There is a delay of 35 days in filing the appeal. Being satisfied with the cause shown by the appellant, delay is condoned.

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2.Heard the learned counsel for the appellants and Mr.P.A.Kulkarni for Respondents No.1 and 2 and the learned Government Advocate for Respondents No.3 and 4.

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3.The facts of these appeals are as hereunder:

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The first respondent was an employee of the appellant-Bank. Second respondent is his wife. Between 1999-2001, the first respondent was working as Manager in Magadi Branch of the appellant-Bank. On account of misappropriation said to have been committed by the first respondent, a dispute under Section 70 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as 'the Act' for short) came to be filed both against the employee and his wife on the ground that the employee, out of the misappropriated funds, has purchased the

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property in the name of his wife and that the award be passed with regard to the misappropriated amount to be recovered by selling the property standing in the name of the second respondent. The dispute came to be allowed, against which the appeal was preferred by the respondents 1 and 2 before the Karnataka Appellate Tribunal, Bangalore in appeal No.456 of 2008, which appeal came to be dismissed on 21^st June 2010 confirming the order and award passed by the Deputy Registrar, Co-operative Societies.

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4. Aggrieved by the concurrent findings the respondents No.1 and 2 filed writ petition before the learned Single Judge in Writ Petitions No.20445 and 20446 of 2010. The learned Single Judge, after hearing the parties, came to be conclusion that the Deputy Registrar, Co-operative Societies as well as the Karnataka Appellate Tribunal have committed a serious error in passing award against the second respondent who was in no way responsible for the alleged misappropriation. Accordingly, he set aside the award passed against the second respondent by confirming the award passed by the Deputy Registrar Co-operative Societies against Respondent No.1. This order is called in question in this appeal. 5. Having heard the learned counsel, we do not see any reasons to interfere with the order of the learned Single Judge for the following reasons. Admittedly, in order to invoke Section 70 of the Act, such a dispute shall be between the employer and the employee OR between one Society and another Society OR between the past employee of the Society or the legal representatives of the Society and not

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against the third person. Admittedly, the second respondent cannot be treated as an legal representative because the first respondent is alive. Therefore, even if the appellant was of the opinion that the respondent No.1 has purchased the property in the name of his wife and considering it as a benami transaction, the dispute could not have been maintained by the appellant, as Section 70 of the Act does not permit to invoke the same. The learned counsel for the appellant is unable to show the provision of law or the source of power to attach the property of the second respondent in a proceedings initiated under Section 70 of the Act.

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6. The learned Single Judge, having considered the legal question, has rightly allowed the writ petition of the second respondent. In the circumstances, we do not see any error committed by the learned Single Judge. In the result, the appeals are dismissed."

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As can be seen from the aforesaid

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judgment, this Court has come to the categorical conclusion that so long as proceedings are initiated by a Co-operative Bank/Society against the husband, who was a member under Section 70 of the said Act, merely because respondent No.2 - Bank alleges that schedule property was purchased

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by the husband in the name of his wife, i.e., the said circumstances cannot be made the basis to proceed against the wife by respondent No.2 - Bank.

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Under these circumstances, I am of the considered opinion that impugned order dated 29.11.2016 and impugned order dated 14.03.2022 passed by Karnataka Appellate Tribunal, Bengaluru rejecting the appeal filed by the petitioner are contrary to the material on record as well as the judgment of this Court in Bangalore Rural and Ramanagar District Central Co-operative Bank

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Ltd case referred to supra and accordingly the same deserves to be quashed.

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In the result, I pass the following:

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ORDER

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(i) Writ petition is hereby allowed.

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(ii) Impugned order dated 29.11.2016 in Dispute No.JRB/MD/37/2015-16 passed

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by respondent No.1 and order dated 14.03.2022 in COP.Appeal No.80/2017 passed by Karnataka Appellate Tribunal, Bengaluru are hereby set aside.

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(iii) Consequently, the application dated 08.07.2015 filed by the petitionerobjector in Dispute No.JRB/MD/37/201516 hereby stands allowed and the order of attachment of the property of the petitioner is hereby set aside.

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(iv) Liberty is reserved in favour of respondent No.2 - Bank to seek recourse to any other remedies as available in the law.

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Sd/JUDGE

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Smt Nagalambika D H v. the Joint Registrar of Co-Operative

Case brief

What is this about?

What did the court decide?

Smt Nagalambika D H v. the Joint Registrar of Co-Operative

Case brief

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