Karnataka High Court
Sri R Shankarappa vs The State Of Karnataka on 22 November, 2022
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT APPEAL NO.1139 OF 2022 (GM-RES)
BETWEEN:
SRI. R. SHANKARAPPA
S/O RAMAKRISHNAPPA
AGED ABOUT 66 YEARS
R/O 31, 18TH CROSS, 34TH MAIN
IDEAL HOMES TOWNSHIP
RAJARAJESHWARINAGAR
BANGALORE - 560098.
...APPELLANT
(BY SRI. D.L.N RAO, SR. ADVOCATE FOR
SRI. H N BASAVARAJU, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF CO-OPERATION
VIDHANA SOUDHA
BANGALORE - 560001
2. THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
BANGALORE - 560009
3. THE TAHSILDAR
BANGALORE SOUTH TALUK
BANGALORE 560009
W.A.No.1139/2022
2
4. THE GREATER BOMBAY CO-OP BANK LTD.
REP. BY ITS MANAGING DIRECTOR
GBCB HOUSE, 89, BHULESHWAR
MUMBAI - 02.
5. THE SPECIAL RECOVERY AND SALES OFFICER
GOVERNMENT OF MAHARASHTRA
DEPARTMENT OF CO-OPERATION
OFFICE AT NO 89, GBCB HOUSE,
BHULESHWAR
MUMBAI - 02.
6. IDEAL HOMES CO-OPERATIVE BUILDING SOCIETY
LTD.
BY ITS SECRETARY
IDEAL HOMES TOWNSHIP
MYSORE ROAD
BANGALORE - 560098
7. THE ASSISTANT REVENUE OFFICER
RAJARAJESHWARINAGAR SUB RANGE
BBMP, RAJARAJESHWARI NAGAR
BANGALORE - 560098
8. SRI UDAYA RAM YERUMAL
S/O R K THINGALAYA
AGED ABOUT 65 YEARS
R/AT 3RD CROSS, WIDIA LAYOUT
OPP: INCOME TAX LAYOUT
VIJAYANAGAR, BANGALORE - 560040.
9. SHRI DHARSHAN SRINIVAS
S/O LATE SRINIVAS
AGED 44 YEARS,
R/O NO 217, THOOGUDEEPA NILAYA
F CROSS, IDEAL HOMES TOWNSHIP
2ND STAGE, RAJARAJESHWARINAGAR
BENGALURU - 560056.
....RESPONDENTS
(BY SRI. S. RAJASHEKAR, AGA FOR R1 TO R3
SRI. S. RISHAN SHAH, ADVOCATE FOR
SRI. VIGNESH SHETTY, ADVOCATE FOR R4)
W.A.No.1139/2022
3
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER DATED 07.11.2022 PASSED BY
THE LEARNED SINGLE JUDGE IN WP No-3023/2016
AND CONSEQUENTLY ALLOW THE WRIT PETITION FILED
BY THE APPELLANT IN TOTO AND GRANT THE RELIEF AS
SOUGHT FOR IN THE WRIT PETITION.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, ASHOK S. KINAGI, J., DELIVERED
THE FOLLOWING:
JUDGMENT
This intra-court appeal is filed under Section 4 of the Karnataka High Courts Act challenging the order dated 07.11.2022 passed in W.P.No.3023/2016 by the learned Single Judge.
2. Parties are referred to as per their ranking before the learned Single Judge. Appellant is the petitioner and respondents are the respondents before the learned Single Judge.
3. Brief facts leading rise to filing of this writ appeal are as under:
The property in question was allotted in favour of respondent No.8 by respondent No.6 under a registered lease-cum-sale agreement dated W.A.No.1139/2022 4 31.08.2000. Pursuant to the lease-cum-sale agreement, possession certificate was issued in favour of respondent No.8. The appellant agreed to purchase the property in question from respondent No.8.
Accordingly, respondent No.8 executed agreement of sale in favour of the petitioner on 10.12.2005 and respondent No.8 executed a power of attorney in favour of the petitioner on 05.05.2006. The respondent No.2 instructed the Tahsildar to attach the property and submit the report. On the instructions of respondent No.2 the Tahsildar attached the property in question. The respondent No.2 communicated the same to respondent No.5 about the effectuation of attachment on the property in question. Respondent No.8 failed to execute a registered sale deed in favour of the petitioner. The petitioner filed a suit in O.S.No.8257/2011 which was ended in a compromise. The petitioner submitted letter dated 07.01.2012. Respondent No.5 declined to consider the letter dated 07.01.2012. The W.A.No.1139/2022 5 petitioner aggrieved by the inaction on the part of respondent No.5 in declining to consider the grievance of the petitioner, filed a writ petition in W.P.No.12518/2013. The said writ petition was partly allowed and sale notice and consequential notice are quashed but declined to interfere with the order of attachment of the subject property. Against the said order the petitioner preferred a writ appeal in WA.No.105/2016, which came to be disposed of reserving liberty to the petitioner to urge all the grounds which are raised in the writ appeal. In the meantime, respondent No.2 instructed respondent No.3 to proceed with the auction sale. Respondent No.3 issued the impugned auction notice in Indian Express Newspaper dated 25.12.2015, intimating the general public that the public auction will be held on 27.01.2016. The petitioner aggrieved by the order of attachment has filed the writ petition.
Respondent No.4 filed statement of objections stating that pursuant to the auction notice published W.A.No.1139/2022 6 in the newspaper auction was held on 25.05.2016, two bidders participated in the auction and requisite earnest money of Rs.68,00,000/- was deposited through demand draft. During the inter-se bidding Mr.Dharshan Sreenivas raised his bid to Rs.2,84,00,000/- and the same was accepted and pronounced him as the highest bidder and concluded the auction process. The auction purchaser has deposited the entire bid amount and the sale was confirmed and sale certificate was issued after the disposal of the writ petition. Hence, it is contended that the petitioner has no right, title or interest in the subject property. Hence, prayed to dismiss the writ petition.
The learned Single Judge after hearing the parties, dismissed the writ petition. Aggrieved by the same, the petitioner has filed this writ petition.
4. Heard Sri D.L.N.Rao, learned Senior counsel for the petitioner and Sri S.Rajashekar, learned W.A.No.1139/2022 7 Additional Government Advocate for respondent Nos.1 to 3 and Sri S.Rishab Shah, learned counsel for respondent No.4.
5. Learned Senior counsel for the petitioner submits that the learned Single Judge has failed to consider the submission made by the learned counsel for the parties. He submits that the auction initiated against respondent No.8 by the bank is unsustainable under Sections 95, 99 and 100 of the Maharashtra Co-operatives Act, 1960. He submits that the subject property is not mortgaged and the bank has no right to attach the property. He further submits that respondent No.8 has agreed to sell the property under reference on 10.12.2005 i.e., prior to the attachment of the property. The petitioner filed a suit in O.S.No.8257/2011 for the relief of specific performance of contract. The said suit was ended with compromise. The said facts have been overlooked by the learned Single Judge. He further submits that the learned Single Judge could not have observed about W.A.No.1139/2022 8 the validity of the agreement of sale. In order to buttress his arguments, he has placed reliance on the judgment in the case of KANCHERLA LAKSHMINARAYANA VS. MATTAPARTHI SYAMALA & ORS., reported in 2008(14) SCC 258 and VANNARAKKAL KALLALATHIL SREEDHARAN VS. CHANDRAMAATH BALAKRISHNAN & ANR., reported in (1990) 3 SCC 291. Hence, on these grounds, he prays to allow the writ appeal.
6. Per contra, learned counsel for respondent No.4 submits that respondent No.8 has taken a loan from respondent No.4 and he was a defaulter. He submits that the respondent No.4 initiated a recovery proceedings against respondent No.8. The respondent No.8 in order to deprive respondent No.4 from recovering the amount got created alleged agreement of sale. He further submits that though the alleged agreement of sale was executed in the year 2005, the suit came to be filed in the year 2011 and the said suit was ended in a compromise in the year 2012 and W.A.No.1139/2022 9 the writ petition was filed in the year 2013. He submits that the petitioner has not taken any steps to execute the compromise decree passed in the aforesaid suit. He submits that the conduct of the petitioner and respondent No.8 discloses that they are hand in gloves. He also submits that till date no steps were taken to execute the registered sale deed. He submits that already the property in question was put in auction and the auction purchaser has purchased the property and respondent No.4 has issued sale certificate in favour of the auction purchaser after the dismissal of the writ petition. In view of the subsequent development, nothing survives for consideration in this writ appeal. He submits that the learned Single Judge was justified in passing the impugned order. Hence, on these grounds, he prays to dismiss the writ appeal.
7. Perused the records and considered the submissions made by the learned counsel for the parties.
W.A.No.1139/202210
8. It is not in dispute that respondent No.8 has taken loan from respondent No.4 and he has committed a default in repaying the loan amount. Respondent No.4 initiated recovery proceedings against respondent No.8. It is not in dispute that respondent No.6 is the owner of the subject property. Respondent No.6 has executed a registered lease- cum-sale agreement on 31.08.2000 vide Annexure-A. We have perused the conditions mentioned in Annexure-A which discloses that respondent No.8 being the lessee shall construct a building and shall not alienate the subject property during the existence of tenancy. Admittedly, respondent No.6 has not yet executed registered sale deed in favour of respondent No.8 and further respondent No.8 has not acquired any title over the subject property. Respondent No.8 cannot claim any ownership on the basis of registered lease-cum-sale agreement. Respondent No.8 alleged to have executed an agreement of sale in favour of the petitioner agreeing to sell the subject property on W.A.No.1139/2022 11 10.12.2005, vide Annexure-F. As per clause-3 of the agreement of sale, both the parties have agreed to complete the sale transaction within 3 months from the date of execution of agreement of sale. Both the parties have not acted upon the alleged agreement of sale within the stipulated time mentioned in the alleged agreement of sale. After lapse of more than 5 years from the date of execution of agreement of sale, the petitioner filed a suit in O.S.No.8257/2011 for the relief of specific performance of contract. The said suit ended with compromise vide compromise petition dated 13.12.2012. A compromise decree was also drawn. Till day, the petitioner has not taken any steps to execute registered sale deed. The said compromise decree is not acted upon by the parties. If really the said transaction was genuine, the petitioner could have taken steps for execution of the registered sale deed in the year 2005 or immediately after decree is passed in the aforesaid suit. From the perusal of the records and also the conduct of the W.A.No.1139/2022 12 petitioner in not taking steps to execute a registered sale deed after more than 16 years from the date of execution of agreement of sale, indicates the intention of the parties to defeat the legitimate claim of respondent No.4.
9. Section 64 of the CPC reads as under:
"64. Private alienation of property after attachment to be void.-(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment."
Section 64 protects the interest of genuine buyers. As observed above, the petitioner is not a genuine buyer and petitioner having colluded with respondent No.8 is filing petition after petition and hence, he is not entitled for the benefit of Section 64 of the CPC.
W.A.No.1139/202213
10. The petitioner is not bona fide in challenging the impugned order. Respondent No.4 has issued auction notification published in English Newspaper in Indian Express, fixing the date of auction on 27.01.2016. In the said auction, 2 members have participated and Mr. Dharshan Sreenivas was the highest bidder. Respondent No.4 accepted the bid of Mr. Dharshan Sreenivas and auction purchaser has already deposited the entire bid amount and respondent No.4 has confirmed the sale in favour of the auction purchaser. It is submitted by the learned counsel for respondent No.4 that after dismissal of the writ petition, sale certificate is issued in favour of the auction purchaser. The said fact is not disputed by the petitioner. In view of subsequent development i.e., issuing of sale certificate in favour of the auction purchaser, nothing survives for consideration in this writ appeal.
W.A.No.1139/202214
11. As on the day, the petitioner has not acquired any title over the subject property. The petitioner claims to be the agreement holder. The petitioner will not get any right on the basis of alleged agreement of sale to challenge the impugned order. Respondent No.8 has not challenged the impugned order. The petitioner has no locus standi to file the writ petition challenging the impugned order. The learned Senior counsel for the petitioner placed reliance on the judgments of the Hon'ble Apex Court in the case of SALEM ADVOCATES BAR ASSOCIATION, TAMILNADU VS. UNION OF INDIA, reported in (2005) 6 SCC 344 and KANCHERLA LAKSHMINARAYANA (SUPRA). The learned Single Judge has referred to those judgments in para-11 of the impugned order and also considered the submissions of the parties and passed a well-reasoned order. The learned Single Judge was justified in passing the well-reasoned order. We do not find any error in the impugned order. We decline W.A.No.1139/2022 15 to interfere with the impugned order. Accordingly, we proceed to pass the following:
ORDER The writ appeal is dismissed.
In view of disposal of the writ
appeal, pending IAs., if any, do not
survive for consideration and are
accordingly disposed of.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
ssb