IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.993 OF 2019 (CS-RES) BETWEEN:
HOLEYAPPA C. NAYAK S/O ANE CHENNABASAPPA AGED ABOUT :62 YEARS R/AT NO. 389/70 RAMAIYNAGAR ROAD V.V.PURAM BENGALURU-560 004
ALSO AT:
NO.231, 1ST CROSS, 1ST MAIN ’B’ BLOCK, KANAKASHRI LAYOUT BYRATHI, KOTHANUR POST BANGALORE-560 077 ... APPELLANT (BY SHRI GEORGE ANTHONY CRUZ, ADVOCATE) AND:
1. THE KARNATAKA APPELLATE TRIBUNAL 2ND FLOOR, M.S. BUILDING BENGALURU-560 001 BY ITS SECRETARY/REGISTRAR 2. THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KARNATAKA DEPARTMENT OF CO-OPERATION 6TH FLOOR, M.S.BUILDING BENGALURU-560 001 3. THE ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES, (R.441) KARNATAKA STATE CO-OPERATIVE APEX BANK LTD., CHAMRAJPET BENGALURU-560 018.
4. THE KARNATAKA STATE CO-OPERATIVE APEX BANK LTD., O/O.THE ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES, (R.441) KARNATAKA STATE CO-OPERATIVE APEX BANK LTD., CHAMRAJPET BENGALURU-560 018 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER ... RESPONDENTS (SHRI I. THARANATH POOJARI, AGA FOR R2 & R3 SHRI VIVEK B.N. ADVOCATE FOR SHRI ABHINAV RAMANAND, ADVOCATE FOR R4 R1 – SERVED) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THIS WRIT APPEAL AND SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED SINGLE JUDGE IN W.P. NO.8162/2019 [CS-RES] DATED 07/03/2019 AND CONSEQUENTLY ALLOW THE WRIT PETITION NO.8162/2019 [CS-RES] DATED 07/03/2019 FILED BY THE APPELLANT AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant, and the learned counsel appearing for the fourth respondent. The learned Additional Government Advocate represents the second and third respondents.
2. The present appellant preferred an appeal before the Karnataka Appellate Tribunal for impugning the order passed by the third respondent. By the said order, the appellant was directed to pay a sum of Rs.18 lakhs along with interest at the rate of 10.25% and 2% overdue interest on the principal amount of Rs.18 lakhs with effect from 21st April 2010 upto the date of realization.
3. Before the Tribunal, the appellant took out an application and applied for dispensation of deposit as provided under sub- section (2) of Section 105 of the Karnataka Co-operative Societies Act, 1959 (for short ‘the said Act’). By the order dated 10th January 2019, the said application was rejected. It is this order, which was challenged before the learned Single Judge by filing a writ petition.
4. The learned Single Judge by the impugned order rejected the writ petition by observing that there is no provision under the said Act which enables the Tribunal to dispense with the requirement of pre-deposit as provided under sub-section (2) of Section 105 of the said Act.
5. The learned counsel appearing for the appellant made a statement before this Court on 10th July 2019 that the appellant is willing to deposit the requisite amount as payable under sub-section (2) of Section 105 of the said Act. Accordingly, a sum of Rs.4,50,000/- has been admittedly deposited by the appellant with the fourth respondent. When it was pointed out to the learned counsel appearing for the appellant that what is deposited is only 25% of the principal amount and not 25% of the entire amount payable under the order dated 6th October 2017, the learned counsel appearing for the appellant stated, on instructions, that if a reasonable time is granted, the appellant will deposit the balance amount. He also pointed out that as a result of non-payment of the amount, now the appeal before the Tribunal has been dismissed for non-compliance with sub-section (2) of Section 105.
6. The learned counsel appearing for the fourth respondent opposed the appeal by pointing out that the amount ought to have been deposited long back.
7. We have considered the submissions.
8. Sub-section (2) of Section 105 of the said Act reads thus:
“No appeal against an order, decision or award for payment of money shall be considered by the Appellate Authority under sub-section (1) unless it is accompanied by satisfactory proof for having deposited with the concerned society twenty-five per cent of the amount due in terms of the order, decision or award. After the disposal of the appeal, the amount so deposited shall be adjusted towards the amount payable by the appellant and in case no amount is required to be paid by the appellant, the amount so deposited shall be refunded to him by the Society.”
9. Under sub-section (2) of Section 105 of the said Act, an appeal against an order or award for payment of money cannot be considered unless the appeal is accompanied by satisfactory proof of having deposited with the concerned society 25% of the amount payable. The appellant has shown willingness to pay the amount payable as per sub-section (2) of Section 105. In fact, he has shown his bona fides by depositing a sum of Rs.4,50,000/-. Hence, an opportunity deserved to be granted to the appellant to deposit the balance amount in a reasonable time so that he can prosecute the appeal before the Appellate Tribunal.
10. As the fourth respondent will receive 25% of the total amount, there will be no prejudice to the fourth respondent.
11. Accordingly, we pass the following order:
(i) If the appellant deposits the balance amount payable as of today constituting 25% of the amount due and payable under the award dated 6th October 2017 with the fourth respondent and produces proof thereof before the Karnataka Appellate Tribunal within a period of six weeks from today, the Appeal No.309/2017 shall stand restored to the file of the Karnataka Appellate Tribunal;
(ii) In the event the appeal is restored, the same shall be decided by the Tribunal in accordance with law;
(iii) In the event of failure of the appellant to comply with the aforesaid direction within the stipulated time, the order of dismissal of the appeal will stand and will continue to operate;
(iv) The appeal is accordingly disposed of with the above directions.
The pending interlocutory application does not survive for consideration and stands disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE AHB