Dismissed

Smt Renuka v. the State of Karnataka

Karnataka HC20 Nov 2024WP/12046/2024

Case brief

AI extract

What is this about?

Petitioners challenged a sale notice and sought adjudication of their succession rights over mortgaged property. The Court held the subsequent Claim Petition was frivolous, filed to delay proceedings, and dismissed it with costs due to violation of proviso under Rule 41.

What did the court decide?

The writ petition was dismissed; the Claim Petition filed on 01.04.2024 was dismissed with costs of Rs. 50,000.

Smt Renuka Vs the State of Karnataka — Succession and Inheritance | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:47472 WP No. 12046 of 2024

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 20^TH DAY OF NOVEMBER, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 12046 OF 2024 (CS-RES)

¶6

BETWEEN:

¶7

SMT. RENUKA W/O LATE JAYARAM B ACHARYA, AGED ABOUT 55 YEARS, R/AT KALLAGUDDE, S.V.S. COLLEGE ROAD, BANTWAL, BANTWAL TALUK, D.K. DISTRICT-574 219

¶8

Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA

¶9

SRI. DHANUSH S/O LATE JAYARAM B ACHARYA, AGED ABOUT 55 YEARS, R/AT KALLAGUDDE, S.V.S. COLLEGE ROAD, BANTWAL, BANTWAL TALUK, D.K. DISTRICT-574 219

¶10

…PETITIONERS

¶11

(BY SRI. PRASANNA V R., ADVOCATE)

¶12

AND:

¶13

THE STATE OF KARNATAKA REP. BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, M.S. BUILDING, BENGALURU-560 001

¶14

2 - NC: 2024:KHC:47472 WP No. 12046 of 2024

¶15

THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES AND RECOVERY OFFICER, MANGALORE, D.K. DISTRICT-575 001

¶16

S.K. GOLDSMITHS INDUSTRIAL CO-OP. SOCIETY LTD., L NO. 901, REP. BY ITS CEO, SRI. YAGNESHWARA, ADMINISTRATIVE OFFICE AT VISHWA SOUDHA, NH-66, KOTTARA CHOWKI, MANGALORE, D.K. DISTRICT-575 006 REG. UNDER KARNATAKA CO-OPERATIVE SOCIETY ACT 1959.

¶17

SRI. S. BHUJANGA ACHARYA S/O LATE SHAMARAYA ACHARYA, AGED ABOUT 65 YEARS, R/AT NEAR RADHAKRISHNA TEMPLE, BAPPALIGE ROAD, PUTTUR TALUK, D.K. DISTRICT-574 201

¶18

SMT. JYOTHI S., W/O DIWAKARA, AGED ABOUT 43 YEARS, D/O BHUJANGA ACHARYA, R/AT NEAR RADHAKRISHNA TEMPLE, BAPPALIGE ROAD, PUTTUR TALUK, D.K. DISTRICT-574 201

¶19

SMT. VIDHYA S W/O SRI MAHESH B,

¶20

3 - NC: 2024:KHC:47472 WP No. 12046 of 2024

¶21

AGED ABOUT 42 YEARS, R/AT NEAR KOTECHA HALL, SALMARA CROSS, PADIL, PUTTUR TALUK, D.K. DISTRICT-574 201

¶22

SMT. VINAYA S W/O SUNIL ACHARYA, AGED ABOUT 41 YEARS, R/AT ARVATHOKLU, GONIKOPPA, COORG DISTRICT-571 213

¶23

SRI. SHREYAS S S/O S. BHUJANGA ACHARYA, AGED ABOUT 25 YEARS, R/AT NEAR RADHAKRISHNA TEMPLE, BAPPALIGE ROAD, PUTTUR TALUK, D.K. DISTRICT-574 201

¶24

SMT. ASHA W/O LATE HARISH B ACHARYA, AGED ABOUT 49 YEARS, R/AT KALLAGUDDE, S.V.S. COLLEGE ROAD, BANTWAL, BANTWAL TALUK, D.K. DISTRICT-574 219

¶25

KUM. HARSHITHA D/O SMT. ASHA AND HARISH B ACHARYA, AGED ABOUT 15 YEARS, MINOR REP. BY HER GUARDIAN MOTHER, SMT. ASHA, R/AT KALLAGUDDE, S.V.S. COLLEGE ROAD,

¶26

¶27

NC: 2024:KHC:47472 WP No. 12046 of 2024

¶28

BANTWAL, BANTWAL TALUK, D.K. DISTRICT-574 219

¶29

SRI. VENKATESH ACHARYA S/O LATE ANANTHAYYA ACHARYA, AGED ABOUT 50 YEARS, R/AT KALLAGUDDE, S.V.S. COLLEGE ROAD, BANTWAL, BANTWAL TALUK, D.K DISTRICT-574 219

¶30

…RESPONDENTS

¶31

(BY SRI. YOGESH D NAIK, AGA FOR R1 AND R2; SRI. B.S. SACHIN, ADVOCATE FOR R3; R4 TO R11 ARE SERVED)

¶32

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE SALE NOTICE DATED 15.04.2024 AND 09.03.2024 IN EXECUTION PETITION NO. 134/2006-07 ARAISING OUT OF DISPUTE NO. JRM/DDS/11/2004-05 ISSUED BY R-2 AND 3 VIDE ANNEXURE-A, B AND B1 RESPECTIVELY AND ETC.

¶33

THIS PETITION, COMING ON FOR ORDERS, THIS

¶34

DAY, ORDER WAS MADE THEREIN AS UNDER:

¶35

CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ

¶36

5 - NC: 2024:KHC:47472 WP No. 12046 of 2024

¶37

ORAL ORDER

¶38

The petitioners are before this Court seeking for

¶39

following relifes:

¶40

"i. Issue a Writ of Certiorari, quashing the Sale Notice dated 15.04.2024 and 09.03.2024 in Execution Petition No.134/2006-07 araising out of Dispute No.JRM/DDS/11/2004-05 issued by Respondent Nos.2 and 3 vide Annexure-A, B and B-1 respectively.

¶41

ii. Issue a Writ of Mandamus, directing the 2^nd Respondent Assistant Registrar of Co-op. Societies cum Recovery Officer, Mangalore Sub-Division, Mangalore to adjudicate and decide the Claim Petition dated 01.04.2024 filed by the Petitioners in Execution Petition No.134/2006-07 vide Annexure-C before proceeding to conduct auction of the Schedule Properties,

¶42

iii. Issue any other writ or order to meets in the ends of justice."

¶43

The relief in prayer (i) has become infructuous since an account of interim order, the property was not brought to sale by respondent-Bank.

¶44

Insofar as relief in prayer (ii) is concerned, the submission of Sri.Prasanna V.R., learned counsel for the petitioners is that the property has been mortgaged without the consent of the petitioners, the petitioners having a right in the property more particularly to petitioner No.2 having a succession right as regards the right of his father

¶45

6 - NC: 2024:KHC:47472 WP No. 12046 of 2024

¶46

Sri. Late Jayaram B. Acharya, his interest is required to be adjudicated in terms of Rule 41 of the Karnataka Co-operatives Society 1960. His submission is that without such adjudication, the Bank cannot proceed with the sale of the property by relying on Sub Rule (2) of Rule 41.

¶47

Sri. B.S. Sachin, learned counsel appearing for respondent-Bank would submit that the entire claim of the petitioners is false, frivolous and vexatious in as much as the husband of petitioner No.1 and father of petitioner No.2 had executed a General Power of Attorney in pursuance of which the mortgage has been created. That apart, he submits that petitioner No.1 along with other members of the family namely, respondent No.9 who is the wife of the deceased brother of Jayarama Acharya and Venkatesh Acharya, the other surviving brother of Jayarama Acharya had submitted the proposal on 25.08.2022 to settle the claim of the Bank. Thus, petitioner No.1 not having disputed the mortgage executed by Jayarama Acharya, through his General

¶48

¶49

NC: 2024:KHC:47472 WP No. 12046 of 2024

¶50

Power of Attorney and having infact confirmed the same by agreeing to make payment of due amounts by only requesting for some more time. There is nothing to be adjudicated under Rule 41.

¶51

The sale notice having been issued on 09.03.2024,

¶52

the Claim Petition having been filed by the petitioners under Rule 41 as on 01.04.2024, there is no such Claim Petition which has been filed during the pendency of the Execution Proceedings, which are pending since from the year 2006-07 an offer having been made on 25.08.2022 to liquidate the dues.

¶53

He submits that the Bank has been deprived of exercising its right over the property for the last 18 years, despite the Execution Petition was filed in the year 2006-07. The filing of Claim Petition and/or Obstruction Petition under Rule 41 is one more of the methodologies of the judgment debtors by the petitioners to frustrate the claim of the Bank and as such, he submits that the above petition has been filed seeking for quashing the sale notices. This

¶54

8 - NC: 2024:KHC:47472 WP No. 12046 of 2024

¶55

Court could also take up the matter as regard the objection raised and pass necessary order thereof.

¶56

Heard Sri. Prasanna V.R., learned counsel for the petitioners, Sri. Yogesh D. Naik, learned Additional Government Advocate for respondent Nos.1 and 2 and Sri. B.S. Sachin, learned counsel for respondent No.4 and perused the records.

¶57

In terms of prayers that have been extracted above it is clear that the first prayers that have been sought for was certiorari and quashing the sale notices and the second prayer is for mandamus to the said and adjudicate upon the Claim Petition filed by the petitioners.

¶58

Insofar as the first prayer is concerned, the same has been rendered infructuous, in view of the interim order passed and no sale notices have been taken out by the Bank subsequently. Insofar as second prayer is concerned what is required to be seen is whether there is any substance in the objections that has been raised by the petitioners.

¶59

¶60

NC: 2024:KHC:47472 WP No. 12046 of 2024

¶61

Sub Rule (1) of Rule 41 of the Karnataka

¶62

Co-operatives Society 1960 is reproduced thereof, for easy reference:

¶63

"41. Investigation of claims to property attached :

¶64

(1)Where any claim is preferred to or any objection is made to the attachment of, any property attached under these rules, on the ground that such property is not liable to such attachment, the Sale Officer shall investigate the claim or objection and make an order either rejecting the claim or allowing the claim and to that extent raising the attachment made:

¶65

Provided that the Sale Officer may refuse to investigate the claim if he considers that the claim or objection is frivolous or made on or after the date fixed for sale."

¶66

A perusal of the aforesaid Sub Rule (1) of Rule 41

¶67

would indicate that any claim is preferred or any objection made to attachment of any property on the ground that the same is not liable for such attachment, the Sale Officer is required to investigate the claim or objection make an order either rejecting or allowing the claim.

¶68

The provisio to Sub-Rule (1) also empowers the Sale Offers to refuse to investigate if he considers the claim or objection is frivolous made after the date fixed for sale. Applying the proviso it is clear the

¶69

10 - NC: 2024:KHC:47472 WP No. 12046 of 2024

¶70

sale notice having been issued on 09.03.2024, the Claim Petition has been filed on 01.04.2024 much subsequent, to the sale notice and as such, the proviso is clear and categorical that the Sale Officer may refuse to investigate after the date is fixed for sale.

¶71

Be that as if may, apart from the technical aspects in terms of the letter produced by the Bank dated 28.05.2022, petitioner No.1 and respondent Nos.9 and 11, whose relationships have been explained hereinabove, categorically come forward to make payment of the due amounts to the Banks.

¶72

Once having made such a representation, I am of the considered opinion the petitioners and the son would not have filed a Claim Petition in the year2024, now objecting to the mortgage which had been executed and or try to establish their own individual title.

¶73

In my considered opinion the Claim Petition has been filed after the sale notice having been issued. The said Claim Petition is completely frivolous and

¶74

11 - NC: 2024:KHC:47472 WP No. 12046 of 2024

¶75

vexatious and has been so filed only to delay the proceedings, the Execution Proceedings being pending for the year 2006-07, there is gross abuse of the process of court resorted to by the petioner. Hence, for all the aforesaid reasons, I am of the considered opinion that there would be no requirement for Recovery Officer to further adjudicate the matter. Hence, the above matter has been argued before this Court. This Court has considered the above, in that view of the matter, I pass the following:

¶76

Order

¶77

i. Writ petition is dismissed.

¶78

ii. The Claim Petition dated 01.04.2024 filed by the petitioners in Execution Petition No.134/2006-07 at Annexure-C stands dismissed, by imposing costs of Rs. 50,000 payable to the Karnataka State legal services authority.

¶79

iii. Pending I.A's stands dismissed.

¶80

SD/(SURAJ GOVINDARAJ) JUDGE

¶81

TMP, List No.: 1 Sl No.: 20

Smt Renuka v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Renuka v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Co. Ordinator Vs the State of Karnataka

The Karnataka Private Post Vs State of Karnataka

Vidhya Shekhar Education Trust R Vs State of Karnataka

Vishwabharathi House Building Vs Sri T N Thimmarajachar

Smt Bhagya Lakshmi Vs Joint Registrar of Co. Operative Societies

Sri Honnappa R Vs the Asst Registrar of Co. Operative Societies