Dismissed

Smt. Nanda S/O Anand Mannapur v. the State of Karnataka

Karnataka HC3 Apr 2024WP/101314/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a borrower challenging co-op society auction proceedings. The court held the petition was an abuse of process filed after a co-ordinate bench had previously rejected identical claims, noting the petitioner suppressed material facts.

What did the court decide?

Petitioner directed to hand over property possession and pay Rs. 25,000 costs.

Smt. Nanda S/O Anand Mannapur Vs the State of Karnataka — Banking and Recovery | Karnataka HC (2024)

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- 1 - NC: 2024:KHC-D:6084 WP No. 101314 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD 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.101314/2024(CS-DAS)

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BETWEEN:

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SMT. NANDA S/O. ANAND MANNAPUR, AGE: 48 YEARS, OCC: HOUSEWIFE, R/O: JOSHIGAL ILKAL, TQ: ILKAL, DIST: BAGALKOT, PIN – 587 125.

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…PETITIONER

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(BY SRI HEMANTHKUMAR L. HAVARAGI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, RPTD BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, VIDHANA SOUDHA, BENGALURU – 560 001.

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CHANDRASHEKAR
LAXMAN
KATTIMANI
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Date: 2024.04.10
15:21:29 +0530

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THE DEPUTY COMMISSIONER, BAGALKOT DISTRICT BAGALKOT, DISTRICT ADMINISTRATIVE BUILDING, NAVANAGAR, BAGALKOT, PIN – 587 104.

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THE DEPUTY REGISTRAR, THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES BAGALKOT, DISTRICT BAGALKOT DISTRICT ADMINISTRATIVE BUILDING, NAVANAGAR, BAGALKOT, PIN – 587 104.

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THE INSPECTOR OF CO-OPERATIVE SOCIETIES AND MEDIATOR, OFFICE CO-OPERATIVE SOCIETIES BAGALKOT,DISTRICT BAGALKOT, DISTRICT ADMINISTRATIVE BUILDING, NAVANAGAR, BAGALKOT, PIN – 587 104.

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THE ASSISTANT REGISTRAR/RECOVERY OFFICER, THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIEITIES BAGALKOT, DISTRICT BAGALKOT AND KRISHIYETARA PATTINA SAHAKAR SANGH SAHAKARI SANGHAGAL VAKKUTA LTD, BAGALKOT, DISTRICT ADMINISTRATIVE BUILDING, NAVANAGAR, BAGALKOT - PIN 587 104.

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THE SECRETARY NEELKANTESHWAR CO-OPERATIVE SOCIETY, ILKAL, TQ: ILAKL, DIST: BAGALKOT PIN – 587 125.

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SMT. BASALINGAMMA W/O. GANGAYYA HIREMATH, AGE ABOUT: 55 YEARS, OCC: HOUSEHOLD, R/O: INGALAGI TQ: ILKAL(OLD HUNGUND), DIST: BAGALKOT, PIN: 587125.

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…RESPONDENTS

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(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 TO R5; SRI S.B.HEBBALLI, ADVOCATE FOR R6; SRI S.S.BETURMATH, ADVOCATE FOR SRI M.V.HIREMATH, ADVOCATE FOR R7)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, HOLD THAT THE PUBLIC AUCTION PROCEEDINGS DATED 19-01-2023 BEARING NO. NILL CONDUCTED BY THE 5^TH RESPONDENT IN FAVOUR OF 7^TH RESPONDENT, VIDE ANNEXURE-F, AS LAPSED AT SY NO.4625/5A1/A2 MEASURING 23-69 SQ. MTRS SITUATED AT ILKAL OF BAGALKOT DIST ISSUED BY THE RESPONDENT NO.5. A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED AUCTION CONFIRMATION ORDER DATED 04-03-2021 AND 18-04-2023, BEARING EX. NO. 484/2022-23 AT FORM NO. 10 AND 11 AND POSSESSION NOTICE BEARING NO.BAA.KRU.PA.SA.O/SHTIKHA SWA KOKU/2023 DATED 21-12-2023, VIDE ANNEXURE-H, H1, J AND L RESPECTIVELY, ISSUED BY THE RESPONDENT NO. 5 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:6084 WP No. 101314 of 2024

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ORDER

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The petitioner has approached this Court seeking grant of writ in the nature of certiorari to quash the public auction proceedings dated 19.01.2023 conducted by respondent No.5, produced as per Annexure-F and also to quash the auction confirmation orders dated 04.03.2021 and 18.04.2023 and further, the notices issued for handing over the possession as per Annexures-H, H1, J and L, issued by respondent No.5.

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Heard Sri Hemanthkumar L. Havargi, learned counsel for the petitioner, Smt. Kirtilata R. Patil, learned HCGP for respondent Nos.1 to 5, Sri S.B. Hebballi, learned counsel for respondent No.6 and Sri M.V. Hiremath, learned counsel for respondent No.7. Perused the materials on record.

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Learned counsel for the petitioner submits that the petitioner was the borrower of Rs.7,00,000/- from respondent No.6 on 21.01.2017. He became the defaulter. Respondent No.6 got the award dated 07.01.2020, from respondent No.5, as per Annexure-A for Rs.9,39,403/-. Later, respondent No.5 issued the auction notice dated 07.08.2021. Immediately the petitioner filed W.P.No.103331/2021 challenging the same.

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The said writ petition came to be disposed of directing respondent No.4 to consider the representation filed by the petitioner, seeking grant of account statement. Since there was non-compliance of the said direction, a criminal contempt proceeding in CCC No.100182/2021 was initiated as per Annexure-C. The cost of Rs.10,000/- was imposed on the respondents in the Contempt proceedings.

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Learned counsel submitted that the public auction

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notice dated 10.01.2023 was issued by respondent No.5 as per Annexure-D stating that an amount of Rs.11,46,247/- was due by the petitioner. The petitioner gave another representation as per Annexure-E dated 12.01.2023 stating that holding of auction sale is illegal and requested to cancel the auction proceedings proposed to be held on 19.01.2023. The said representation was also not considered by the respondents. On the other hand, the auction was held on 19.01.2023. Respondent No.7 was declared to be the highest bidder, for Rs.42 lakhs. It is stated that respondent No.7 deposited 15% of the bid amount on the same day. But within 30 days, he had not deposited the remaining 85% of the amount. Inspite of that, sale confirmation was done on 02.03.2023.

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Learned counsel submitted that the cheque for Rs.26,86,812/- was issued by the respondent. The said cheque came to be dishonoured. Notice was issued by the petitioner to the respondents. In the meantime, the respondents illegally entered the premises to take possession of the same. Therefore, legal notice was issued. Respondent No.5 issued demand draft for Rs.26,86,812/-. Even the demand draft was not encashed. Therefore, the petitioner was forced to file the present writ petition. As per the interim order granted by this Court, Rs.5,00,000/- was deposited by the petitioner. The petitioner is ready and willing to deposit the entire amount that is due under the award. Therefore, prays for allowing the petition.

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Per contra, learned counsel for respondent No.6 submits that admittedly the petitioner had borrowed the amount from respondent No.6- Bank. He was the defaulter and therefore, the award as per Annexure-A came to be passed. This award was never challenged by the petitioner till today. Annexure-F is the auction proceedings held on 19.01.2023. Respondent No.7 was the highest bidder and the same was accepted. Annexure-H dated 04.03.2021 is the confirmation of

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the same. The petitioner had filed W.P.No.101047/2023 challenging the very same auction proceedings dated 19.01.2023. This Court had dismissed the said petition by recording the specific finding that the writ petition is devoid of merits. This is the second writ petition filed seeking to quash the auction proceedings dated 19.01.2023. There is abuse of process of the Court and therefore, he prays for dismissal of the petition with cost.

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Learned counsel submitted that Form No.10 was issued in favour of the auction purchaser after he depositing the entire auction amount and the sale certificate was issued on 18.04.2023. Same was registered as per Annexure-R1 on 17.05.2023. The name of the auction purchaser is entered in the CTS records. But still the petitioner had not delivered the vacant possession of the premises and therefore, notice was issued to the petitioner to hand over the vacant possession of the same. But there was no reply to the same. Thereafter, ARCS locked the premises and issued stop payment instructions in respect of the cheque that was issued. Respondent No.6 is ready and willing to pay the amount that is due to the petitioner immediately. There is no merit in the petition.

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Learned counsel submitted that the appeal provision

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under Section 105 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as ‘the Act’ for short) was never invoked by the petitioner. But on the other hand, several writ petitions came to be filed before this Court. None of the writ petitions were entertained by this Court. This is the second round of litigation initiated by the petitioner. Therefore, prays for dismissal of the petition with exemplary cost.

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Learned counsel for respondent No.7- the auction purchaser and learned HCGP for respondent Nos.1 to 5 adopting the arguments addressed by learned counsel for respondent 6, prayed for dismissal of the petition.

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The petitioner is the borrower from respondent No.6- Bank and he was the defaulter. Respondent No.6 got an award as per Annexure-A dated 07.01.2020 passed by respondent No.5 for Rs.9,39,403/-. These facts are not in dispute rather it is admitted. Admittedly, the petitioner has not challenged the award Annexure-A, but he accepted the same. Later, auction proceedings were initiated by the respondents. The petitioner has filed multiple writ petitions before this Court

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and in none of the writ petitions, he got any relief. But strangely, the petitioner has never invoked any of the of the provisions of the Act to challenge the order of the Assistant Registrar of Co-operative Societies (ARCS) before the Deputy Registrar of Co-operative Societies (DRCS) as provided under the Act.

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It is pertinent to note that Annexure-G is the order dated 21.02.2023 passed by the Co-ordinate Bench of this Court in W.P.No.101047/2023. The order discloses that the very same auction proceedings dated 19.01.2023 along with the auction notice was challenged in the said writ petition. The Co-ordinate Bench of this Court after considering the facts and the materials on record, recorded a categorical finding that the writ petition is devoid of merits and no relief could be granted to the petitioner. Accordingly, the writ petition came to be dismissed. Inspite of that, the petitioner has filed the present writ petition again seeking to quash the auction proceedings dated 19.01.2023 produced as per Annexure-F along with the auction confirmation notice. In the entire writ petition, the petitioner has not disclosed that the earlier petition was in respect of the said auction proceedings dated 19.01.2023 and

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the same came to be dismissed as devoid of merits. It is nothing but suppression of the material facts, with an intention to get a favourable order. The petitioner is successful in getting the interim order in the present writ petition by suppressing the material facts. Therefore, I am of the opinion that the petitioner is deliberately approaching this Court again and again by filing the writ petitions inspite of a specific order by the Co-ordinate Benches of this Court.

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It is pertinent to note that W.P.No.103331/2021 was filed before this Court challenging the auction notice dated 07.08.2021. The said writ petition was disposed of by directing respondent No.4 to consider the representation submitted by the petitioner. The representation produced before this Court discloses that the only prayer made by the petitioner is to furnish the account statement. CCC No.100182/2021 was filed before the Division Bench of this Court alleging non-compliance of the directions. The order in the said contempt proceeding is produced as per Annexure-C. Initially Rs.10,000/- was imposed as cost on the respondents. The Division Bench has recorded a finding that the Bench is satisfied that respondent No.1/accused No.1 has substantially complied the order passed

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by this Court dated 20.09.2021 in W.P.No.103331/2021. The Court has also recorded its satisfaction that accused No.1 under the covering letter dated 14.12.2021 made available the documents sought by the complainant. Under such circumstances, the order imposing cost of Rs.10,000/- on accused No.1 was recalled and the contempt proceedings initiated was dropped.

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Admittedly, auction confirmation in favour of the auction purchaser/respondent No.7 is confirmed by issuing Form No.10 and the same was registered with the sub-registrar on 17.05.2023. Copy of the registered sale deed is produced as per Annexure-R1. CTS records is also mutated in the name of the auction purchaser. Notice to hand over possession of the premises was issued and there was no reply by the petitioner. But the petitioner is pursuing the present writ petition challenging the auction proceedings dated 19.01.2023 which was already rejected by this Court. Therefore, it is nothing but abuse of process of Court by the petitioner, with an intention to get a favourable order and to delay the recovery proceedings or to stall the same indefinitely. Unfortunately he is successful in his attempt.

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NC: 2024:KHC-D:6084 WP No. 101314 of 2024

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Therefore, I am convinced that the petitioner is not

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entitled for any relief in the writ petition and he is liable for exemplary cost. Accordingly, I proceed to pass the following;

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ORDER

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i. Writ petition is dismissed.

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ii. The petitioner is directed to pay the cost of Rs.25,000/- (Rupees Twenty Five Thousand Only) to respondent No.6 within 30 days from today, failing which, respondent No.6 is entitled to recover the same from the petitioner, in accordance with law.

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The petitioner is directed to hand over the possession of the property to the auction purchaser/respondent No.7 with in 6 weeks from today and take the amount that is due to him from respondent No.6, after deducting the cost.

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The amount deposited by the petitioner before this court

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is ordered to be refunded to him on due identification.

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Sd/JUDGE

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PN/CT-ASC List No.: 1 Sl No.: 6

Smt. Nanda S/O Anand Mannapur v. the State of Karnataka

Case brief

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Smt. Nanda S/O Anand Mannapur v. the State of Karnataka

Case brief

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