THE HON'BLE SRI JUSTICE A.V. SESHA SAI W.P.No.2500 of 2008 Between:
Anumilli Lajarus PETITIONER AND
1. The Co-operative Deputy Registrar/Arbitrator, Bhimavaram, W.G. District, and others.
RESPONDENTS ORDER:
This writ petition, filed under Article 226 of the Constitution of India, challenges the notice dated 11.01.2008, issued by the Deputy Registrar of Cooperative Societies/Arbitrator, Bhimavaram, West Godavari District, 1st respondent herein, under Rule 52 (II) (e) of the A.P. Cooperative Societies Rules, 1964 in C.E.P.No.21 of 2003/2004, as illegal, arbitrary and unconstitutional.
2. Heard Smt. C. Vani Reddy, learned counsel for the petitioner, learned Government Pleader for Cooperation, and Sri P. Radhakrishna, learned Standing Counsel for the 2nd respondent-Cooperative Urban Bank.
3. The 1st petitioner obtained a loan of Rs.75,000/- from the 2nd respondent-Bank in the year 1999. According to him he paid a sum of Rs.1,09,287/- towards instalments and discharged the entire amount. The 1st respondent affixed a notice in Form No.6, indicating a sum of Rs.1,24,006/- as due from the petitioner. According to the petitioner, the respondents did not serve any notice much less demand notice prior to the service of the notice under Form-6. By virtue of the impugned notice dated 11.01.2008, the 1st respondent proposed auction of the mortgaged property. Challenging the said notice of auction dated 11.01.2008 issued in Form-6 under Rule 52(II)(e) of the Rules as being illegal, arbitrary and unconstitutional, the present writ petition has been filed.
4. This Court while issuing Rule Nisi on 11.02.2008 in W.P.M.P.No.3213 of 2008 granted interim stay of all further proceedings pursuant to the notice of sale issued in Form.9 dated 11.01.2008, subject to the condition of the petitioner paying an amount of Rs.30,000/- within a period of two weeks. It is stated by the learned counsel for the petitioner that the petitioner paid the said amount.
5. Responding to the Rule Nisi issued by this Court, a counter affidavit is filed on behalf of the 2nd respondent-Cooperative Urban Bank, stating that in view of the failure on the part of the 1st petitioner, the respondents initiated proceedings under the provisions of the A.P. Cooperative Societies Rules, which culminated in passing of award bearing No.298/2002-2003, dated 15.7.2002 by the 1st respondent and despite receipt of the said award, the 1st petitioner did not prefer any appeal against the said award. The counter further states that the petitioner paid interest of Rs.1,04,287/- for the period 30.08.2002 to 21.11.2005 but failed to pay the balance amount, which compelled the 2nd respondent to file E.P.No.21/2003-2004, dated 22.04.2003 bringing the mortgage property for sale in public auction. It is further stated by the learned Standing Counsel for the 2nd respondent-Bank that as on the date, a sum of Rs.1,90,000/- is due from the petitioner. It is further stated that since the award passed by the 1st respondent under the provisions of the A.P. Cooperative Societies Rules has become final, the present writ petition filed by the petitioner is not maintainable and the only remedy for the petitioner is to file appeal under Section 76 of the A.P. Cooperative Societies Act.
6. Pending the writ petition, the 1st petitioner passed away and vide separate order in W.P.M.P.No.14195 of 2014, the wife of the 1st petitioner Smt. Anumilli Annapurna is permitted to come on record as the legal representative of the deceased 1st petitioner.
7. In the instant case, there is absolutely no dispute with regard to the fact that the deceased 1st petitioner obtained loan from the 2nd respondent-Bank and the passing of award by the 1st respondent-Deputy Registrar of Cooperative Societies on 15.07.2002 vide Award No.298/2002-2003. It is also a fact that the deceased-1st petitioner did not prefer any appeal against the said award. The impugned action in the present writ petition is obviously is a consequential action pursuant to the said award passed by the 1st respondent. Though a number of contentions including the non-issuance of notice, have been raised in the affidavit filed in support of the writ petition, this Court is not inclined to go into the same as this Court deems it appropriate to permit the 2nd petitioner to avail the alternative remedy of appeal under Section 76 of the A.P. Cooperative Societies Act against the above said award, keeping in view the payments made so far by the deceased 1st petitioner.
8. For the aforesaid reasons, this writ petition is disposed of, permitting the 2nd petitioner to prefer an appeal against the Award No.298/2003-2004, dated 15.07.2002 passed by the 1st respondent, before the Tribunal under Section 76 of the A.P. Cooperative Societies Act, within a period of three months from the date of receipt of a copy of this order. It is made clear that the respondent authorities shall not take any coercive steps for a period of four months from today. It is also made clear that in the event of failure to file the appeal within the time stipulated above, it is open for the respondents to execute the award passed by the 1st respondent. No order as to costs. As a sequel, miscellaneous petitions, if any, shall stand closed.
JUSTICE A.V. SESHA SAI.
1st September, 2014 Js.