Karnataka High Court
S Sathyanarayanan vs Smt P Parvathamma on 16 November, 2023
-1-
NC: 2023:KHC:41227
WP No. 11489 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
WRIT PETITION NO. 11489 OF 2019 (CS-RES)
BETWEEN:
1. S SATHYANARAYANAN
AGED ABOUT 60 YEARS
S/O K.K.SUBRAMANIYAM,
18 GANESH (NEW NO.32)
DR THIMMAIAH ROAD, 60 FEET ROAD,
2ND CROSS, SHIVANAGAR,
RAJAJINAGAR,
BANGALORE-560010
...PETITIONER
(BY SRI T DADAKHALANDAR, ADVOCATE FOR
SRI N RAMACHANDRA, ADVOCATE)
AND:
1. SMT P PARVATHAMMA
W/O LATE M. PUTTAIAH,
AGED ABOUT 60 YEARS
Digitally
signed by
BHARATHI S 2. MR.P.SRINIVASA
Location: AGED ABOUT 42 YEARS
HIGH COURT
OF S/O LATE M. PUTTAIAH,
KARNATAKA
3. MAHESH P
AGED ABOUT 38 YEARS
S/O LATE M. PUTTAIAH,
ALL RESONDENTS 1 TO 3 ARE
R/AT NO.11, 5TH MAIN ROAD,
NANJAPPA GARDEN, ITI LAYOUT,
MALLATHAHALLI,
BANGALORE-560056
4. K PUTTASWAMY
-2-
NC: 2023:KHC:41227
WP No. 11489 of 2019
FORMER SECRETARY OF
KUVEMPU NUTHANA MADARI GRUHA
NIRMANA SAHAKARA SANGHA NIYAMITA
LEGAL REPRESENTATIVE
MR. SANJAY KUPE,
S/O LATE K. PUTTASWAMY,
R/A NO.924, 3RD MAIN ROAD,
VIJAYANAGAR,
BANGALORE-560010
5. THE DEPUTY REGISTRAR
OF CO-OPERATIVE SOCIETIES
4TH ZONE, BENGALURU REGION,
SAHAKARA SOUDHA,
SAMPANGI ROAD, MALLESWARAM,
BANGALORE-560 003
6. THE JOINT REGISTRAR
OF CO-OPERATIVE SOCIETIES
4TH ZONE, BENGALURU REGION,
SAHAKARA SOUDHA,
SAMPANGI ROAD, MALLESWARAM,
BANGALORE-560 003
7. THE ASSISTANT REGISTRAR
OF CO-OPERATIVE SOCIETIES AND
RECOVERY OFFICER
4TH ZONE, BENGALURU REGION,
SAHAKARA SOUDHA,
SAMPANGI ROAD, MALLESWARAM,
BANGALORE-560 003
8. KUVEMPU NUTHANA MADARI GRUHA
NIRMANA SAHAKARA SANGHA NIYAMITA (R)
BANGALORE
REPRESENTED BY MR.S.RAMAKRISHNA
SPECIAL OFFICER AND ADMINISTRATIVE OFFICER
BDCC BANK, P.B.NO.1813
LAKSHMI SADANA,
5TH MAIN ROAD,CHAMRAJPET,
BANGALORE-560018
...RESPONDENTS
(BY SRI OMKARESHA & PRAKASH, ADVOCATES FOR
SRI SURYAVANSHI, ADVOCATE FOR R1 TO R3
SRI MILIND DANGE, AGA FOR R5 TO R8
R4 SERVED)
-3-
NC: 2023:KHC:41227
WP No. 11489 of 2019
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
19.12.2018 IN CO-OP APPEAL NO. 656/2012 PASSED BY THE
HON'BLE TRIBUNAL AT BANGALORE VIDE ANNEXURE-'M' AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition is filed seeking for the following reliefs:
"a) To call for records of the order Ref: No.: Dava Sankya/JRB/MD/116/2006-07, dated 11-1-2010 passed by the Joint Registrar of Co-operative Society, Bangalore and records of the order Ref. No: Dava Sankya : DRB- 1/MD/05/2010-11 dated 17-01-2011 and recall the records pertain to the Execution filed before the Assistant Registrar of Co-operative Societies, Malleshwaram, Bengaluru in C.E.P. No: 469/2011-
12, date. 23-07-2012.
b) Call for records of the Karnataka Appellate Tribunal order dated 19-12-2018 in Co-op. Appeal No. 656/2012 (LCR- KAT).
c) To quash the order dated 19.12.2018 in Co-op. Appeal No. 656/2012 passed by the Hon'ble Tribunal at Bangalore vide Annexure-'M'.
d) And confirm the order passed by the Deputy Registrar of Co-operative Societies in Dispute No: DRB-1/MD/05/2010- 11 dated 17-01-2011 vide Annexure-'L'.
e) To issue any other writ of mandamus or a direction of in the nature and allow this writ petition with exemplary cost payable by the Respondent No.1 to 3 in the interest of justice and equity."
2. The relevant facts necessary for consideration of the present petition are that the petitioner is a member of -4- NC: 2023:KHC:41227 WP No. 11489 of 2019 the eighth respondent - society who entered into an Agreement of Sale on 31.10.1996 for purchase of a site bearing No.682 for a total sale consideration of `1,18,000/- which consideration was paid by the petitioner, consequent to which, a letter of Allotment dated 25.6.1997 was issued allotting the site bearing No.1009 (instead of site No. 682) which was of a smaller dimension. The registration of site not having been completed, the petitioner raised a dispute under Section 70 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as 'the Act') before the sixth respondent - Joint Registrar in Dispute No.JRB/MD/116/2007. Vide order dated 11.1.2010 the society was directed to register the site in favour of the petitioner. Subsequently, the petitioner filed an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') for amending the prayer of the petition and the award. Notice on the said application was issued to the respondents. Vide order dated 17.1.2011, the respondents were directed to refund the petitioner a sum of `1,18,000/- together with -5- NC: 2023:KHC:41227 WP No. 11489 of 2019 interest at 18% pa., and also cost of `30,000/-. Being aggrieved, one Sri M.Puttaiah, who was arrayed as the second respondent in the dispute, preferred Appeal No.656/2012 before the Karnataka Appellate Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal'). The petitioner entered appearance before the Tribunal and contested the same. The Tribunal by its judgment dated 19.12.2018 allowed the appeal and set aside the order dated 17.1.2011. Being aggrieved, the present petition is filed.
3. Learned counsel for the petitioner vehemently contended that the petitioner is being made run from pillar to post for the site that was to be allotted in his favour. Having regard to the fact that there was no site available, consequent to the order dated 11.1.2010 passed by the sixth respondent - Joint Registrar, the petitioner filed an application for amendment which was allowed and refund of the money paid by the petitioner was ordered together with interest and costs. He further submits that the judgment of the Tribunal setting aside the order for refund of money is -6- NC: 2023:KHC:41227 WP No. 11489 of 2019 erroneous having regard to the fact that the Tribunal proceeded on an erroneous assumption that there was a review of the original order and the order for refund having been passed consequent to an application for amendment, the order of the Deputy Registrar ought not to have been interfered with. He further submits that the Ex-directors and office bearers of the society have also been held liable to pay the amount to the petitioner in view of the fact that they have misappropriated the money. In justification of the order making the Ex-directors liable to pay the amount in favour of the petitioner, he relies on the judgment of a coordinate Bench of this Court in the case of Shivalingeshwara Oil Mill v. Channaveerappa1.
4. Learned counsel for respondent Nos.1 to 3 who were the appellants before the Tribunal submits that Sri M.Puttaiah who was the original appellant before the Tribunal died during the pendency of the said proceedings and his wife and children have been brought on record as legal representatives who have prosecuted the appeal. It is 1 2005(2) KCCR 777 -7- NC: 2023:KHC:41227 WP No. 11489 of 2019 further submitted that the personal property of the deceased appellant was attached towards payment of the amount to the petitioner and since there is no provision under law to do so, the Tribunal is justified in setting aside the award passed by the fifth respondent. Hence, he seeks for dismissing the writ petition.
5. Learned AGA for the official respondents places on record the fact that the eighth respondent - society has been ordered to be wound-up and a Special Officer has been appointed.
6. The submissions made on behalf of the learned counsel for the parties have been considered and the material on record have been perused. The questions that arise for consideration are:
1. Whether the judgment dated 19.12.2018 passed in Appeal No.656/2012 by the Tribunal is erroneous and liable to be interfered with?
2. Whether the order dated 17.1.2011 passed by the fifth respondent - Deputy Registrar in Dispute No.DRB-1/MD/05/2010-11 is erroneous and liable to be interfered with?
3. Whether the relief sought for in the present writ petition is liable to be granted?-8-
NC: 2023:KHC:41227 WP No. 11489 of 2019
7. The essential facts regarding the petitioner being a member of the eighth respondent - society and having been allotted a site, he paid a sum of `1,18,000/- are undisputed. It is further not in dispute that no site has been allotted in favour of the petitioner.
8. It is forthcoming from the records that although the order dated 11.1.2010 was passed by the sixth respondent - Joint Registrar for the petitioner to be allotted a site bearing No.1009, measuring 30x40 feet, consequent to the application for amendment filed by the petitioner, the fifth respondent - Deputy Registrar passed the order dated 17.1.2011, whereunder the respondents in the said proceedings have been ordered to pay the petitioner a sum of `1,18,000/- together with interest at 18% pa., as also costs.
9. Without going into the legality and correctness of the proceedings filed by the petitioner wherein amendment of the prayer and award have been sought consequent to the order dated 11.1.2010, it is just and expedient that the -9- NC: 2023:KHC:41227 WP No. 11489 of 2019 amount paid by the petitioner towards allotment of a site be refunded to the petitioner when the site has not been allotted in his favour. In this regard, it is relevant to note that the office bearers of the erstwhile society who were arrayed as respondent Nos.1 to 3 in the dispute before the sixth respondent - Joint Registrar have also been made liable to pay the amount in favour of the petitioner. However, there is no basis in law for the fifth respondent - Deputy Registrar to pass an order holding the erstwhile office bearers of the society personally liable to pay the amount.
9. The judgment in the case of Shivalingeshwara Oil Mill 1 relied on by the learned counsel for the petitioner will not aid the case of the petitioner in view of the fact that in the said proceedings a coordinate Bench of this Court was considering Order XXI Rule 50 of the CPC and Order XXX Rule 3 of the CPC has held that a decree passed against a partnership firm could be proceeded with against its Managing Partner. The present case is regarding making the erstwhile office bearers of a society personally liable in proceedings under Section 70 of the Act.
- 10 -
NC: 2023:KHC:41227 WP No. 11489 of 2019
10. The appeal before the Tribunal was preferred by the former President of the society and the Tribunal considering the said appeal was justified in setting aside the order. However, it is expedient that the entire order dated 17.1.2011 passed in Dispute No.DRB-1/MD/05/2010-11 by the fifth respondent - Deputy Registrar not be set aside.
11. Having regard to the aforementioned, it is expedient that the relief sought in the present writ petition be granted by holding that the eighth respondent - society shall be liable to pay the amount ordered to be paid vide order dated 17.1.2011 in Dispute No.DRB-1/MD/05/2010-11 to the petitioner.
12. In view of what is stated above, question Nos.1 and 2 framed for consideration are answered in the affirmative and question No.3 is answered as per the final order.
13. Hence, the following order is passed:
ORDER i. The writ petition is allowed;
- 11 -
NC: 2023:KHC:41227 WP No. 11489 of 2019 ii. The judgment dated 19.12.2018 passed in Appeal No.656/2012 by the Karnataka Appellate Tribunal, Bengaluru, is set aside;
iii. The award dated 17.1.2011 passed in Dispute No.DRB-1/MD/05/2010-11 by the fifth respondent -
Deputy Registrar is modified and it is ordered that the eighth respondent - society shall pay the amount awarded in favour of the petitioner.
No costs.
Sd/-
JUDGE ND List No.: 1 Sl No.: 78