Dismissed

The Customs and Central v. Sri M R Raghavendra Prasad

Karnataka HC27 Oct 2023WP/25384/2017

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging a tribunal order that upheld a Registrar's award. The applicant requested allotment of a residential site and was directed to pay a balance amount. The Court found the lower authorities correctly held that no formal notice was issued before intimating refusal of refund, warranting the award's confirmation.

What did the court decide?

Writ petition dismissed as being devoid of merit with no relief granted to the petitioner.

The Customs and Central Vs Sri M R Raghavendra Prasad — Cooperative Societies | Karnataka HC (2023)

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1 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA WRIT PETITION NO. 25384 OF 2017 (CS-RES)

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BETWEEN:

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THE CUSTOMS AND CENTRAL EXCISE HOUSE BUILDING CO OPERATIVE SOCIETY LTD., CENTRAL REVENUE BUIDING, QUEENS ROAD, BENGALURU-1, REPRESENTED BY ITS HONORARY PRESIDENT SRI SANTOSH M HERVATTE.

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…PETITIONER

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(BY SRI. KRISHNA MURTHY V.,ADVOCATE)

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AND:

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Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA

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SRI M R RAGHAVENDRA PRASAD, SON OF SRI RANGANATHA SHETTY, AGED ABOUT 49 YEARS, RESIDING AT DEEPA HOME NEEDS, 9TH CROSS, S.S.PURAM MAIN ROAD, TUMKUR.

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THE ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES, (INDUSTRIES AND MISCELLANEOUS), NO.1, ALIASKAR ROAD, BANGALORE-560 052.

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…RESPONDENTS

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(BY SRI. N RAMACHANDRA, ADVOCATE FOR C/R1; SRI MILIND DANGAE, AGA FOR R2)

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2 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE KARNATAKA APPELLATE TRIBUNAL DATED 28.4.2017 IN APPEAL NO.564/2010 AT ANENX-B; CONSEQUENTLY SET ASIDE THE AWARD PASSED BY THE R-2 IN DISPUTE DATED 20.09.2010 AT ANNEX-A.

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THIS PETITION, COMING ON FOR PRILIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The present petition is filed by the petitioner (hereinafter referred by the 'Society') challenging the order dated 28.04.2017 passed by in Appeal No.564/2010 before the Karnataka Appellate Tribunal at Bengaluru (hereinafter referred to as 'Tribunal'), as well as the award dated 20.09.2010 passed in dispute No. A(I&M)/DisD2/791/2008-09 by the respondent No.2.

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The relevant facts necessary for the consideration

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of the present petition are that the father of the respondent No.1 was an employee of the Central Excise Department and he was a Member of the petitionerSociety. He died while in service and the share standing in

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3 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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his name was transferred in the name of the respondent No.1 as per the bye-laws of the Society. The Society being a house building society formed a layout at Kammanahalli for its Members and accordingly the respondent No.1 made an application for allotment of the site 30 X 40 feet and paid total sum of Rs.78,000/-. Since the site was not allotted, the respondent No.1 raised dispute before the respondent No.2. The petitioner Society entered appearance before the respondent No.2 and contested the said proceedings. By award dated 20.09.2010, the respondent No.2 directed the respondent No.1 to deposit the balance amount within one week and the petitionerSociety to allot a residential site measuring 30 X 40 feet and to register the same in the name of the respondent No.1.

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Being aggrieved by the said award dated 20.09.2010, the petitioner preferred Appeal No.564/2010 before the Tribunal. The respondent No.1 entered

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4 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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appearance before the Tribunal and contest the said proceedings.

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There was a delay of 17 days in filing the appeal and the petitioner filed IA No.1 to condone the delay. Vide judgment dated 28.04.2017, the delay of 17 days was condoned and considering the appeal on merits, dismissed the same and passed the following order:

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1) The IA No.1 filed by the appellant Society Under Section 5 of Limitation Act dated 07.12.2010 is allowed and delay of 17 days caused in preferring this appeal is condoned.

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2) However, the main appeal filed by the appellant Society Under Section 105 of the Karnataka Co-operative Societies Act, 1959 is dismissed on merits.

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3) Consequently the impugned award passed by the 2nd respondent in dispute No. A(I&M)/ Dis/D-2/791/2008-09 dated 20.09.2010 is hereby upheld and confirmed.

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4) 1st respondent is hereby directed to pay balance amount of Rs.12,000/- towards sital cost to appellant Society within one month from the date of this order and appellant Society is directed to allot vacant site

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5 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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measuring 30' X 40' in 2nd Phase of Layout at Kammanahalli within two months from the date of receipt of balance amount by registering the site in favour of respondent No.1 at his cost.

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5) The office is hereby directed to comply Regulation 53(a) of Karnataka Appellate Tribunal Regulations, 979 and send copies of the order to the concerned parties and to send the lower court records by way of RPAD immediately.

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Being aggrieved the present petition is filed.

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Learned counsel for the petitioner contends that

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the Tribunal as well as the respondent No.2 erred in granting relief to the respondent No.1, when he was due in sum of Rs.12,000/-, which was admittedly not paid. He further submits that since the amount payable by the respondent No.1 was not paid within a stipulated time, the petitioner-Society was justified in not allotting the site. That there are no sites available with the Petitioner Society to be allotted in the Kammanahalli Layout and that a site would be allotted in a layout that would be developed by

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6 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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the society in future. Hence, he seeks for allowing the Writ Petition and granting of the reliefs sought for. Per contra learned counsel for the respondent No.1 justifying the order passed by the respondent No.2 and tribunal, submits that all the relevant facts have been adequately considered by the respondent No.2 as well as by the Tribunal and same does not merit any interference by this court in the present petition. He draws the attention of this Court to various findings that have been recorded.

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Learned Additional Government Advocate also makes his submission, forthcoming from the record.

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The submissions made by learned counsels have been considered and the material on record have been perused. The question that arises for consideration is:

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"Whether the judgment dated 28.04.2017 passed by the Tribunal upholding the award dated 20.09.2010 passed by the respondent No.2 is liable to be interfered with?"

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7 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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The relevant facts, inasmuch as, the fact that respondent No.1 is a Member of the petitioner-Society as also the fact that the respondent No.1 has paid a total sum of Rs.78,000/- are undisputed. It is forthcoming from the record that the respondent No.1 was liable to be pay balance amount of Rs.12,000/-.

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The Tribunal, while appreciating the oral and documentary evidence on record has noticed that the petitioner-Society has issued a letter Ex.P.11, whereunder it has intimated the respondent No.1 to take refund of deposit amount paid by him to the site (part payment), after furnishing the original receipt issued by the Society. It has been noticed that before the letter-Ex.P.11 was issued, the Society has not issued any notice to the respondent No.1 calling upon him to pay balance amount of Rs.12,000/- and further intimating that on failure to pay the said amount, the allotment of the site made in favour of respondent No.1 would be cancelled.

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The Tribunal has further noticed the fact that in

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the dispute filed by the respondent No.1, an application was filed to reserve one site in the Kammanahalli Central Excise Layout, Phase-2 at Bengaluru, measuring 30 X 40 feet pending disposal of the dispute and the said application was contested by the petitioner-Society consequent to which by order dated 27.06.2009 the application made by the respondent No.1 was allowed and the Society was ordered to reserve a residential site measuring 30 X 40 feet and not to allot such reserved site pending disposal of the dispute. It is further noticed by the Tribunal that the said order is not challenged by the Society.

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The learned counsel for the petitioner relies on the letter dated 15.05.2006 (Ex.P.6) to point out that the respondent No.1 has visited the layout framed by the Society and had expressed his opinion that the layout property is under litigation and hence, contends that the respondent No.1 has voluntarily not paid balance of Rs.12,000/-. It is relevant to note that the said letter

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9 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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dated 15.05.2006 wherein the respondent No.1 has intimated that he has received a letter dated 06.04.2006 (i.e,. less than a month before Ex.P.6) and he has also intimated the fact that he is taking steps to pay the balance amount in view of the promise made by the Society to clear the litigation development.

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It is clear that the letter dated 15.05.2006 (Ex.P.6) would not aid the case of the Petitioner Society, as the respondent No.1 undertaken to pay the balance amount, which amount has admittedly been paid.

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The Tribunal, further noticing the relevant material on record has recorded a finding that even after disposal of the dispute by the respondent No.2, the respondent No.1 has sent the payment of Rs.12,000/- to the Society, which is not received. The Tribunal upon appreciation of the oral and documentary evidence on record, has recorded a finding that the respondent No.1 has demonstrated that he was ready and willing to get the site allotted in his favour and the Petitioner-Society,

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10 - NC: 2023:KHC:38320 WP No. 25384 of 2017

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without any justifiable reason issued Ex.P.11, without affording sufficient opportunity to the petitioner.

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Having regard to the above mentioned, it is clear that the respondent No.2 has appreciated the relevant facts while passing its award dated 27.06.2009 and the Tribunal has adequately re-appreciated the oral and documentary evidence on record and confirmed the award passed by the respondent No.2 by dismissing the appeal filed by the petitioner.

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The petitioner has failed in demonstrating that the award passed by the respondent No.2, as also the judgment of the Tribunal is in any manner contrary to oral and documentary evidence on record.

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In view of the aforementioned the Writ Petition is dismissed as being devoid of merit.

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PNV

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Sd/JUDGE

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List No.: 1 Sl No.: 13

The Customs and Central v. Sri M R Raghavendra Prasad

Case brief

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The Customs and Central v. Sri M R Raghavendra Prasad

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