Dismissed

Shri. Basavaraj S/O Shivaputrappa Ashi v. the Joint Registrar of Co-Operative Societies

Karnataka HC2 Apr 2024WP/100564/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed to quash an award passed by the Souharda Cooperative Dispute Tribunal. The court held the petition non-maintainable as the petitioner failed to exhaust the statutory appeal remedy under Section 46 of the Karnataka Souharda Sahakari Act.

What did the court decide?

The writ petition was dismissed in limine; interim restraint imposed on Respondent No. 3 to issue sale certificate for two weeks.

Shri. Basavaraj S/O Shivaputrappa Ashi Vs the Joint… — Cooperative Societies | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:6003 WP No. 100564 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MRS. JUSTICE M.G.UMA

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WRIT PETITION NO.100564/2024(CS-DAS)

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BETWEEN:

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SHRI BASAVARAJ S/O. SHIVAPUTRAPPA ASHI, AGED ABOUT: 51 YEARS, OCC: ADVOCATE AND AGRICULTURE, R/O: KALLI GUDDA VILLAGE, TQ: HUNGUND, DIST: BAGALKOT.

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…PETITIONER

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(BY SRI B. SHARANABASAWA, ADVOCATE)

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AND:

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THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, SOUHARDA CO-OPERATIVE DISPUTE TRIBUNAL, KARNATAKA STATE SOUHARDA SAMYUKHA CO-OPERATIE LTD., CIRCUIT BENCH BELAGAVI – 590 001.

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Digitally signed by MANJANNA E Location: High Court of Karnataka

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THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCITIES, SOUHARDRA CO-OPERATIVE DISPURT TRIBUNAL, NO.62, SECOND FLOOR, MARGOSA ROAD, (3^RD MAIN), 18^TH CROSS, PIPE LINE, MALLESHWARAM BENGALURU – 560 055.

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THE CHIEF EXECUTIVE OFFICER/SECRETARY, HUNUGUND TALUKA, KANAKADASARA SOUHARDA CO-OPERATIVE LTD., HUNGUND, TQ: HUNGUND, DIST: BAGALKOT – 587 124.

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2 - NC: 2024:KHC-D:6003 WP No. 100564 of 2024

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SHRI SHIVAPPA S/O BASAPPA MENASINKAI, AGED ABOUT: 51 YEARS, OCC: AGRICULTURE, R/O: KALLIGUDDA VILLAGE, TQ: HUNGUND, DIST: BAGALKOT – 587 124.

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SRI SHIVAPUTRAPPA RANGAPPA ASHI, AGED ABOUT 71 YEARS, OCC: RETIRED EMPLOYEE, R/O: KALLIGUDDA VILLAGE, TQ: HUNGUND, DIST: BAGALKOT – 587 124.

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…RESPONDENTS

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(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 AND R2; SRI SANTOSHKUMAR G. RAMPUR, ADVOCATE FOR R3; SRI S.C.HIREMATH, ADVOCATE FOR R4; SRI SHIVAKUMAR S. BADAWADAGI, ADVOCATE FOR R5)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED AWARD, DATED 07.12.2021, BEARING NO. VYAJYA SANKYE. DRD/KA.RA.SOU.SAMSA.NI/12141/2019-20, PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE-G1 AND ETC.,

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

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3 - NC: 2024:KHC-D:6003 WP No. 100564 of 2024

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ORDER

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The petitioner has filed the petition seeking issuance of writ in the nature of certiorari to quash the award dated 07.12.2021, passed by respondent No.1, produced as per Annexure-G1.

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Heard the learned counsel Sri.B.Sharanabasawa for the petitioner, learned HCGP for respondent Nos.1 and 2, learned counsel Sri.Santoshkumar G.Rampur for respondent No.3, learned counsel Sri.S.C.Hiremath for respondent No.4 and learned counsel Sri.Shivakumar S.Badawadagi for respondent No.5.

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Learned counsel submitted that respondent No.5 is the father of the petitioner and he is the borrower.

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He committed default in repayment of the loan amount. The joint family property was mortgaged as security for the loan.

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Learned counsel further submitted that respondent No.1 has passed the award as per AnnexureG1. On the basis of the award, the auction was held and

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4 - NC: 2024:KHC-D:6003 WP No. 100564 of 2024

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the property which was belonging to the joint family was purchased by respondent No.4-auction purchaser. The sale certificate is not yet issued. In the meantime, the petitioner being the son of the respondent No.5-borrower, has approached this court seeking grant of writ in the nature of certiorari to quash the award.

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Learned counsel further submitted that petitioner is the son of respondent No.5 and as per the direction issued by this court, he has deposited Rs.5,00,000/- and he will deposit the balance amount within a reasonable time. Hence, he prays for allowing the petition.

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Per contra, learned counsel for respondent No.3

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opposing the petition submitted that respondent No.5 was the borrower and petitioner is the son of respondent No.5 and he was surety for the loan. The property in question was mortgaged by respondent No.5. When there was default in repayment of the loan amount, proceedings were initiated by respondent No.1, for which the petitioner

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5 - NC: 2024:KHC-D:6003 WP No. 100564 of 2024

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was also a party. The award was came to be passed on 07.12.2021 and the same was notified to the petitioner. Thereafter, the property was brought for sale and respondent No.4 purchased the same. He deposited the entire sale consideration amount. At that time, the petitioner has approached this court for issuance of writ of certiorari. Learned counsel also submitted that brother of

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the petitioner has instituted a suit suppressing all these facts, only to delay the proceedings of recovering the amount.

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Learned counsel submitted that the award passed by respondent No.1 as per Annexure-G1 is an appealable order as provided under Section 46 of the Karnataka Souharda Sahakari Act, 1997 (hereinafter referred to as ‘the Act’ for short). The said effective and efficacious remedy is not exhausted by the petitioner, before approaching this court. Hence, the writ petition is not maintainable. Accordingly, he prays for dismissal of the petition.

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6 - NC: 2024:KHC-D:6003 WP No. 100564 of 2024

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Learned counsel for respondent No.4 submits

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that respondent No.4 is the auction purchaser and he has already deposited the entire consideration amount. Under such circumstances, the petition is liable to be dismissed.

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Perused the material on record.

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The facts of the case disclose that respondent No.5 being the borrower and petitioner being the surety, borrowed the amount from respondent No.3. When borrower and the surety have became defaulters, the proceedings were initiated before respondent No.1, who after holding enquiry, passed the award under Section 39 of the Act. Admittedly, neither respondent No.5 nor the petitioner have challenged the said award. Instead, the petitioner has approached this court after holding auction sale and the auction purchaser depositing the entire consideration amount.

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Admittedly, award was passed by respondent

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No.1 under Section 39 of the Act. Section 46 of the Act

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7 - NC: 2024:KHC-D:6003 WP No. 100564 of 2024

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provides an appeal against such an award passed, within 60 days from the date of the decision or award or order.

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As per the averments made in the petition, award was passed on 07.12.2021, but the petitioner has not thought it fit to invoke the provisions of Section 46 of the Act, for the reasons best known to him. When effective and efficacious remedy is available, the petitioner cannot invoke the jurisdiction of this court either under Art. 226 or Art. 227 of the Constitution of India. Therefore, I do not find any reason to entertain the petition. Accordingly, the petition is liable to be dismissed in limine.

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At this stage, learned counsel for the petitioner submits that he would prefer an appeal under Section 46 of the Act, but in the meantime, there is every chance of respondent No.3 issuing sale certificate in favour of respondent No.4, and in such an event, his right to challenge the award will be frustrated. Therefore, necessary interim protection may be given to the petitioner.

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8 - NC: 2024:KHC-D:6003 WP No. 100564 of 2024

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Considering the above, I proceed to pass the

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following:

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ORDER

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i) The writ petition is dismissed.

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ii) Respondent No.3 is restrained from issuing sale certificate in favour of respondent No.4, for a period of two weeks from today.

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In view of dismissal of the petition, the pending I.A’s,

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do not survive for consideration and the same are

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disposed of.

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SD/JUDGE

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MBS/CT-ASC List No.: 1 Sl No.: 16

Shri. Basavaraj S/O Shivaputrappa Ashi v. the Joint Registrar of Co-Operative Societies

Case brief

What is this about?

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Shri. Basavaraj S/O Shivaputrappa Ashi v. the Joint Registrar of Co-Operative Societies

Case brief

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What did the court decide?

What the court decided

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