IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION Nos.1398-1399 OF 2015 (CS-DAS) BETWEEN:
1. B.S.SHRAVANTHI, D/O SRI. B.N.SUBRAMANYA, AGED ABOUT 15 YEARS 2. B.S.KRISHNAPPA, D/O SRI. B.N.SUBRAMANYA, AGED ABOUT 12 YEARS BOTH BEING MINOR IN AGE ARE REPRESENTED BY:
THEIR MOTHER AND NATURAL GUARDIAN:
SMT.B.S.NAGADEEPA, W/O SRI.B.N.SUBRAMANYA, AGED ABOUT 38 YEARS, RESIDING AT NO.79/1, RAITHARA BEEDHI, P.J.EXTENSION, DAVANAGERE - 577006.
(BY SRI. M.RAMA MOHAN, ADVOCATE) AND:
1. M/S SRI KANNIKAPARAMESHWARI CO-OPERATIVE BANK LIMITED, P.J.EXTENSION, DAVANAGERE-577002. REPRESENTED BY ITS SECRETARY.
... PETITIONERS 2. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, DAVANAGERE TOWN, D.C.OFFICE, P.B. ROAD, DAVANAGERE-577006.
3. THE SALE OFFICER, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, VIDYA NAGAR, DAVANAGERE SUB-DIVISION, DANAGERE-577004.
4. SRI. B.N.SUBRAMANYA, S/O B.NAGARAJA SHETTY, AGED ABOUT 40 YEARS, RESIDING AT NO.534/1, B.T.GALLI, DAVANAGERE-577006.
5. SRI. B.N.SRINIVAS, S/O B.NAGARAJA SHETTY, AGED ABOUT 42 YEARS, RESIDING AT NO.534/1, B.T.GALLI, DAVANAGERE-577006.
6. B.S.SUPRITHA, AGED ABOUT 21 YEARS, D/O SRI.B.N.SRINIVAS 7. B.S.SOUNDARYA, AGED ABOUT 17 YEARS, D/O SRI.B.N.SRINIVAS 8. B.S.SKANDA, AGED ABOUT 13 YEARS, S/O SRI.B.N.SRINIVAS RESPONDENT NO.7 & 8 REPRESENTED BY NATURAL GUARDIAN R6-B.S.SUPRITHA AGED ABOUT 21 YEARS, D/O SRI.B.N.SRINIVAS FLAT NO.534/1, B.T.GALLI, DAVANAGERE - 577006.
9. SRI. B.RAMESH, S/O LATE BHEEMAPPA, AGED ABOUT 46 YEARS, RESIDING AT NO.9, I MAIN, S.NIJALINGAPPA LAYOUT, NEAR KRISHNA FLOUR MILL, DAVANAGERE - 577006.
... RESPONDENTS (BY SRI. G.CHANDRASHEKARAIAH, ADV., FOR R1, SRI. M.SHASHIKANTH PRASAD, ADV., FOR R4, SRI. G.S.PATIL, ADV., FOR R5, SRI. SRIDHAR M.G., ADV., FOR R6 TO R8, SRI. A.C.BALARAJ, AGA FOR R2, R3 R9 – SERVED, UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE KARNATAKA APPELLATE TRIBUNAL IN CO-OPERATIVE APPEAL NO.397/2006 DTD.26.09.2014, VIDE ANNEX-G AND ETC., THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri M.Rama Mohan, learned advocate for the petitioners and Shri G.Chandrashekaraiah, learned advocate for respondent No.1, Shri M.Shashikanth Prasad, learned advocate for respondent No.4, Shri G.S.Patil, learned advocate for respondent No.5, Shri Sridhar M.G., learned advocate for respondent Nos.6 to 8 and Shri A.C.Balaraj, learned Additional Government Advocate for respondent Nos.2 and 3.
2. Petitioners are minor children of one Shri B.N.Subramanya. The said Shri B.N.Subramanya and his brother Shri B.N.Srinivas borrowed `21.00 lakhs from M/s. Kannikaparameshwari Co-operative Bank Limited in the year 1999. The Bank raised a dispute registered as dispute No.1196/2002-03 and award was passed on 27.01.2003. The property mortgaged with the Bank was brought to auction. Since, there was no purchaser, the property was transferred to the Bank by order dated 21.08.2006. Petitioners challenged the award dated 27.01.2003 passed by the Deputy Registrar of the Co-operative Societies (‘DRCS’ for short) before the Karnataka Administrative Tribunal (‘KAT’ for short), interalia on the ground that the mortgaged property was joint family property. They came to know about the award through newspaper and they approached their mother and filed application before the Sale Officer requesting him not to proceed with the sale. However, the Sale Officer ordered auction of the property on 13.03.2006.
3. The Tribunal has recorded that Smt.Kasthuri, W/o Shri Nagaraja Shetty, Shri Subramanya and Shri Srinivas who were the parties in the proceedings before DRCS did not challenge the award nor the order by which the property was transferred to the Society. The minor children of Shri Subramanya had challenged the Sale Officer’s order in EP No.30/2003-04. The appellants had remedy under Sub Rule (3) of Rule 41 of the Karnataka Co-operative Societies Rules to file a suit. After recording the said reasons, the KAT held that the appeal filed by the petitioners was not maintainable and accordingly, dismissed the same.
4. Assailing the correctness of KAT’s order, learned advocate for the petitioners urged following grounds:
The property belongs to the joint family and therefore, the petitioners being the minor children of Shri Subramanya, one of the borrower can maintain the appeal;
The petitioners did file suit for partition against the Society and parents and the same has been dismissed;
Auction purchaser has failed to deposit 85% of the purchase amount within 45 days;
The petitioners offered to repay the debt with 17% interest as ‘one time settlement’ before the KAT and their request was not considered.
Therefore, the order passed by the KAT is unsustainable in law.
5. Shri A.C.Balaraj, learned Additional Government Advocate opposing the petition contended that the petitioners’ father and their uncle Shri Srinivas who are the principal borrowers of the loan have not challenged the order. They have set up their minor children to frustrate the decree obtained by the Bank. If petitioners had any right, they could challenge bank’s action by instituting a suit within six months from the date of order and establish their right as provided under Rule 41(3) of the Karnataka Co-operative Societies Rules.
6. I have carefully considered the rival contentions and perused the records.
7. Undisputed facts of the case are the dispute raised by the Bank has been decreed. The Bank brought the mortgaged property for auction. By order dated 21.08.2006, the property was transferred in favour of the Bank as there were no bidders. The award has been passed on 27.01.2003 and execution proceedings have been initiated in EP No.30/2003-04. The borrowers and their mother who were the parties in the dispute have not chosen to challenge the award.
8. Learned Additional Government Advocate is right in his submission that the petitioners had liberty to challenge the order passed by the Sale Officer by instituting the suit under Sub Rule (3) of Rule 41 of the Karnataka Co-operative Societies Act.
9. In substance, the petitioners being the minor children of one of the borrowers, have been agitating on behalf of the borrowers.
10. Sofar as the first contention that the petitioners have right to prosecute the appeal before the KAT, as noticed hereinabove, the petitioners, if aggrieved, had right under Sub Rule (3) of Rule 41 of the Act.
11. Learned advocate for the petitioners has sought to rely upon the judgment in the case of Smt.Y.Lalitha Holla and others Vs. The Recovery Officer, 1st Circle, Bangalore District and Bangalore Rural District Co-operative Central Bank Limited, Bangalore and others reported in 2009(1) Kar.L.T.493 to support his contention that the auction purchaser ought to have deposited 85% of the amount within 45 days. However, there is no pleading in this behalf or any material placed before this Court to show that there is infraction of any Rule. In any event, the borrowers have no grievance with the award and children of one of the borrowers have filed their suit for partition which has since been dismissed. They have not invoked the remedy available under the Rules.
12. In the circumstances, no exception can be taken to the order passed by the KAT. Resultantly, these petitions must fail and they are accordingly dismissed.
No costs.
Sd/-
JUDGE GH