Karnataka High Court
Sri G Krishnamurthy vs The Joint Registrar Of Cooperative ... on 28 June, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. N.V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO.348 OF 2024 (CS-RES)
BETWEEN:
SRI G. KRISHNAMURTHY
S/O LATE GANGAPPA
AGED ABOUT 69 YEARS
M/S SHRI VINAYAKA BUILDERS AND DEVELOPERS
#376, 3RD FLOOR
12TH CROSS, 4TH MAIN, RMV 2ND STAGE
BANGALORE.
... APPELLANT
(BY SRI B.V. ACHARYA, SENIOR ADVOCATE FOR
SRI MAHESH KIRAN SHETTY, ADVOCATE)
AND:
1. THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES
BENGALURU REGION
8TH CROSS, SAHAKARA SOUDHA
MARGOSA ROAD, MALLESHWARAM
BENGALURU - 560 003.
2. THE MICO ASSOCIATES
HOUSING COOPERATIVE SOCIETY LTD.,
#290/2, LAKSHMI ARCADE
2ND FLOOR, SIDDAIAH ROAD
WILSON GARDEN
BENGALURU-560027
REPRESENTED BY ITS SECRETARY
... RESPONDENTS
(BY SMT. NILOUFER AKBAR, AGA FOR R1
SRI UDAY HOLLA, SENIOR ADVOCATE FOR
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SRI CHANDRASHEKAR S. & SRI H.M. HARSHA,
ADVOCATES FOR C/ R2)
---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO PASS AN ORDER TO SET ASIDE THE JUDGEMENT PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN W.P. NO.8951/2023 DATED 18/01/2024 AND ALLOW THE WRIT PETITION AND GRANT THE RELIEF SOUGHT IN THE WRIT PETITION AND ETC.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
C.A.V. JUDGMENT [per: Hon'ble Mr. Justice N.V. Anjaria, C.J.] Frivolously prolonged spate of litigation leaving a successful party waiting for reaping fruits of litigation, in ultimate analysis, erodes the faith in the justice delivery system. The facts of this case make one such instance.
2. The appellant-original respondent No.1 has preferred this appeal under Section 4 of the Karnataka High Court Act, 1961, seeking to call in question judgment and order dated 18th January 2024 of learned Single Judge. Thereby, learned Single Judge allowed the writ petition of the original petitioner-the MICO Associates Housing Cooperative Society Ltd.-respondent No.2 herein, by setting aside order dated 24th August -3- 2013 passed by the Karnataka Appellate Tribunal, Bengaluru in Cooperative Appeal No.89 of 2023. 2.1 Consequently, Interim Application No.4 and an Interim Application No.7 filed in the said appeal proceedings came to be allowed. Appeal No.89 of 2023 preferred by respondent No.1-Sri. G.Krishna Murthy, before the Tribunal came to be dismissed as not maintainable. I.A. No.4 was for vacating the interim order and I.A. No.7 was seeking dismissal of the appeal on the ground of maintainability.
3. The facts in the background have chequered history, which may be delineated in some detail in order to comprehend the ultimate controversy involved in this appeal. Respondent No.2 herein-MICO Associates Housing Society (hereinafter referred to as 'the Society') a cooperative society registered under the Karnataka Cooperative Societies Act, comprised of workers of the MICO Factory, was formed with an object of buying land and forming a layout to distribute the sites for providing roof to the factory workers, who were more than 1200 in numbers. The society entered into a Land Assembling- -4- cum-Development Agreement dated 15th March 2013 with the appellant-original respondent No.1, who happened to be the Proprietor of one Vinayaka Builders and Developers. The appellant promised to procure lands from different land owners. In the process, respondent-appellant herein collected more than Rs.31.75 crores.
3.1 Though the appellant had promised to get lands in favour of the society, he failed to carry out the obligations and did not adhere to contractual terms. It is the case that appellant was supposed to pay advance amount to the land owners, out of the total collected sum of Rs.12,19,13,000/- only was paid and the balance was pocketed. Also, two acres of land was procured and converted in favour of the society at a sale consideration of Rs.1.98 crores. Resultantly, appellant became indebted to refund to the society a sum of Rs.17,57,87,000/- with interest.
3.1.1 Raising a dispute, the society initiated the proceedings on 24th October 2016 under Section 70 of the Karnataka Cooperative Societies Act, 1969, before -5- respondent No.2-the Registrar of the Cooperative Societies, Bengaluru. The Registrar directed attachment of the immovable properties of the appellant under Section 103(2) of the Karnataka Cooperative Societies Act, 1969 (hereinafter referred to as 'the Cooperative Societies Act'). An award came to be passed under Section 71 of the Cooperative Societies Act. The appellant was directed to pay Rs.17,57,87,000/- together with the damages to the tune of Rs.3 crores. 3.2 The aforesaid award came to be challenged by the appellant before this Court in Writ Petition No.26288-328 of 2017. Respondent No.2-original petitioner raised contention about maintainability in view of availability of appeal before the Tribunal under Section 105 of the Cooperative Societies Act. This Court partially allowed the petition. After setting aside the award, the Court directed the appellant to deposit Rs.2 crores within two months and failing which, the society was to be entitled to proceed with the execution to implement the award. It is the fact not in dispute that said Rs.2 crores required to be deposited pursuant to the above order, -6- has not been so far deposited. The aforesaid petition was finally disposed of.
3.2.1 The original petitioner, on 21st March 2018, when proceeded to execute the award, properties in the name of the wife of the appellant came to be subjected to public auction. The auction was challenged by the wife in Writ Petition No.12294 of 2018. Appellant deposited sum of Rs.2 crores as a condition to stay the auction proceedings. Appellant however had not deposited Rs.2 crores as was directed in writ petition No.26288-328 of 2017 aforementioned. Application was filed seeking extension of time to deposit the amount in which the parties agreed before the Court to go for arbitration, whereupon an arbitrator was appointed. 3.3 On 9th February 2019, the society filed the claim statement before the Arbitrator, whereas the appellant filed statement of defense. In the arbitration proceedings, the appellant filed application to implead third parties. According to the petitioner, the intention was to disrupt the arbitration proceedings and to dodge the payment to the society. The Arbitrator terminated -7- the arbitration proceedings under Section 32(2)(c) of the Arbitration and Conciliation Act, 1996, on the ground that auction had taken place long back and that the parties which are not parties to the Arbitration Agreement were roped into, to render the continuation of arbitration proceedings impossible. Noticeably, the properties were sold in favour of the auction purchasers way back on 21st June 2018, 9th July 2018 and 18th July 2018. 3.4 The appellant then proceeded to file writ petition No.10232 of 2020 on 28th August 2020 before this Court seeking writ of mandamus against the cooperative authorities for restitution of the schedule property sold in favour of the auction purchasers which was in the year 2018. In the said petition, it was sought to be contended by the appellant-petitioner that he had deposited Rs.2 crores as was directed in order dated 28th August 2017 by this Court in writ petition No.26288-328 of 2017. The society responded to file the written statement in detail to contend and point out that Rs.2 crores was not deposited. This Court dismissed the petition on 18th November 2020 holding that condition of deposit of Rs.2 -8- crores as per the aforesaid order dated 28th August 2017 was not complied with. The amount which was deposited was in the petition filed by the wife in the challenge to the auction proceedings as mentioned in paragraph 3.2 hereinabove.
3.5 There was no end to the litigation by the appellant. The aforesaid order dated 18th November 2020 of dismissal of petition was subjected to challenge in writ appeal No.703 of 2020, which was dismissed on 13th December 2021 by the Division Bench. Also dismissed was the review petition on 4th March 2022. There was a further challenge to the aforesaid orders before the Apex Court in Special Leave Petition (Civil) No.10859 of 2022. The S.L.P. was withdrawn by the appellant. Even thereafter, writ petition No.900 of 2022 was filed by the appellant wherein the appellant called in question auction of a property which was pursuant to award dated 28th April 2017. The above petition was dismissed. 3.6 Added in the above caravan of the petitions and the appeals, was yet another writ petition No.16968 of 2022 by the appellant in which what was prayed is to set aside -9- the Sale Certificate, raising a ground that 85% of the bid amount was not paid by the auction purchaser within stipulated time. Learned Single Judge of this Court set aside the Sale Certificate by order dated 15th December 2022. Respondent No.2-Society challenged the aforesaid order in Writ Appeal No.1298 of 2022. The same was disposed of on 7th February 2023 whereby the Assistant Registrar of Cooperative Societies directed to hold a fresh auction and to conclude within three months. The appellant gave consent to conduct auction of the property, which no objection was recorded by the Division Bench in its order, "we make it clear that respondent No.1 has not raised any grievance for the proposed auction process."
3.7 While the things progressed and stood as above, the appellant approached the Karnataka Appellate Tribunal by preferring Appeal No.89 of 2023 seeking to challenge the award dated 28th April 2017. In the submission of the petitioner-respondent No.1 herein, the award had attained finality. Be as that it may. The
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background proceedings were projected with misinterpretation seeking the relief before the Tribunal. 3.7.1 Admittedly, the appeal before the Tribunal was after gap of six years. Section 105(2) of the Cooperative Societies Act provides the limitation period of sixty days for filing the appeal. It appears that application was filed praying to condone the delay putting forth a ground that the appellant-applicant had been litigating bonafide in past.
3.7.2 The Tribunal admitted the appeal and passed exparte interim order on 12th April 2023, granting stay against the order dated 28th April 2017 staying all further proceedings. In the order passed by the Tribunal, treated the past period and the passage of time which led to delay of six years as bonafide period spent in litigation by the appellant. Notwithstanding the fact that the award had attained finality by virtue of the effect of the order passed in writ petition No.26288 of 2017, the Tribunal passed the following ad-interim order,
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"The IA-I is hereby allowed and the question of Limitation is kept open, the appeal is admitted.
The IA-II is hereby allowed and
impugned order dated: 28.04.2017 in
dispute No.JRB/MD/ 356/2016-17 and all subsequent proceedings are hereby stated till receipt of lower court records.
Issue notice to respondents,
communicate copies of appeal, interim
applications and copy of the ad-interim
order.
Call on 25.05.2023."
3.8 Respondent No.2-Society then filed application
seeking vacation of aforesaid exparte interim order dated 12th April 2023 passed by the Tribunal. It was I.A. No.4. Another I.A. No.7 was filed. The dismissal of the appeal was prayed for on the ground of maintainability and the suppression of material facts was also urged on various counts, including the suppression of order dated 7th February 2023 passed in Writ Appeal No.1298 of 2022. The Tribunal passed common order dated 24th August 2023 rejecting the I.A. No.4 and I.A. No.7
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aforementioned filed by the Cooperative Society- respondent No.1 herein. It took the view that the appeal required consideration on merits.
3.8.1 The aforesaid orders of the Tribunal which became subject matter of instant Writ Petition No.8951 of 2023. The very initiation of the proceedings was questioned. The challenge before the learned Single Judge was against interim order dated 12th April 2023 and the order dated 24th August 2023 rejecting the two Interim Applications of the Society-I.A. No.4 and I.A. No.7. Learned Single Judge allowed the petition holding that the proceedings before the Karnataka Appellate Tribunal was not maintainable and that the award dated 28th April 2017 attained finality.
3.8.2 It is the aforesaid judgment and order of learned Single Judge, which is sought to be impugned in the present appeal.
3.9 Learned Single Judge noticed the history of litigation, various orders passed from time to time as highlighted above in nutshell and also took into account
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the reasons supplied by the Tribunal while rejecting the case and the contention of the Society, to observe with reference to the order in Writ Petition No.26288-328 of 2017 about the award in paragraph 28, "... However, it was specifically ordered that if the 1st respondent herein failed to deposit a sum of Rs.2 crores within two months, he would not be entitled to the benefit of the order. It was further specifically ordered that if there was default by the respondent No.1, the society would be entitled to proceed with the execution proceedings to implement the award dated 28.04.2017. Admittedly, the 1st respondent did not deposit the sum of Rs.2 crores within two months of the said order and hence, admittedly, 1st respondent has defaulted in compliance with the said condition, as a result of which, he was not entitled to the benefit of the said order and the society was entitled to proceed with the execution proceedings."
3.9.1 The fact was further recorded by learned Single Judge that the amount of Rs.2 crores deposited by the appellant was not in response to the order passed in Writ Petition No.26288-328 of 2017, but was pursuant to
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interim order dated 21st March 2018 in Writ Petition No.12294 of 2018 in compliance of the condition thereof, to highlight as to how the Tribunal erred in its reasoning, extracting from paragraph 29, "... it is relevant to note that the KAT at para No.9 of its order has only extracted a portion of the finding recorded in para No.15 of the order dated 18.11.2020 passed in W.P. No.10232/2020 by this Court. If the entire portion of the para No.15 of the said order is noticed, a categorical finding has been recorded that the order of the Joint Registrar having been challenged and the 1st respondent herein having committed default of the condition imposed, the order of the 1st respondent has remained undisturbed." 3.9.2 The final findings came to be recorded in paragraph 30 by learned Single Judge thus, "Hence it is clear that the respondent No.1 having elected to challenge the order/award dated 28.04.2017 passed by the 2nd respondent - Joint Registrar in W.P. Nos.26288-328/2017 and the said writ petition having been allowed wherein a specific condition was imposed requiring 1st respondent herein to deposit a sum of Rs.2
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crores within two months and the said order itself having specifically stipulated that in default of 1st respondent making such deposit, he would not be entitled to the benefit of the order of this court, further, making it clear that the society would be entitled to proceed to the executing proceedings to implement the award and the 1st respondent having admittedly not having complied with the condition imposed in the said order dated 28.08.2017, the 1st respondent cannot subsequently be permitted to avail the statutory remedy as provided under the Act."
4. Heard learned Senior Advocate Mr. B.V. Acharya for the appellant, learned Senior Advocate Mr. Udaya Holla for respondent No.2 and learned Additional Government Advocate Smt. Niloufer Akbar for respondent No.1, at length.
4.1 On behalf of the appellant, the judgment and order of learned Single Judge was sought to be assailed by raising following contentions,
(a) Appeal was a statutory right and accordingly the appeal was preferred before the Karnataka State
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Appellate Tribunal as provided under Section 105 of the Cooperative Societies Act.
(b) Award dated 28th April 2017 was passed by the Joint Registrar of Cooperative Societies in haste and without giving opportunity.
(c) The property of the wife of the appellant was put to auction although she was neither a party to the contract nor involved in the dispute. The interim order passed for deposit of Rs.2 crores in the said proceedings was complied with.
(d) Once the respondent society agreed for opting the method of arbitration to resolve the dispute, the respondent was bound by the same.
(e) Learned Single Judge failed to notice that arbitration proceedings was not decided on merits, but came to be terminated on the technical ground that the auction purchaser refused to participate in the arbitration proceedings.
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(f) Learned Single Judge misdirected himself in interpreting various orders passed in the previous petitions and appeals.
(g) Learned Single Judge failed to appreciate that writ petition No.10232 of 2020 was filed against the sale and confirming the registration of the Sale Deeds and relief was sought for, for refund of Rs.2 crores, the statutory right to appeal could not be taken away.
(h) Even if for the sake of arguments, it could be said that the order to deposit Rs.2 crores was not complied with in the writ petition No.26288 of 2017, right to appeal could not have been taken away
(i) As the arbitration proceedings are terminated, the claim of the society is rejected. Therefore, the remedy for the society is to challenge the said order and not to resort to execution of the decree.
4.2 On the other hand, learned Senior Advocate for the respondent No.2-Society-original petitioner, after narrating the sequence of events and the litigation in the background, time and again resorted to by the appellant,
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submitted that the award by the Joint Registrar had become final. He submitted that no enforceable right in that regard survived for the appellant. In any case, it was submitted that the appeal was delayed by six years and there was no good ground to condone the delay. It is submitted that the Tribunal committed a clear error in entertaining the appeal and surprisingly by keeping issue of limitation open.
4.2.1 Learned Senior Advocate for the Society invoked the principle of estoppel by a representation. He relied on decision of the Supreme Court in Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh [(2008) 1 SCC 560], for the proposition that a person taking recourse to legal proceedings over and over again amounts to abuse of process of law. Decision of this High Court in India Awake for Transparency v. Union of India [ILR 2021 KAR 5643], in which Udyami Evam (supra) was relied on, in which it was held that filing of repeated writ petitions on the same cause of action and approaching different courts for the same relief by making minor changes in
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the prayer amounts to forum shopping and tends to become contempt of court and that such conduct by the party is liable to be subjected to punitive cost. He also submitted that the Tribunal was bound to follow the judgments and orders of the High Court earlier passed in the controversy.
5. The whole case as revealed in the facts and as manifested in the events, turns out to be an instance of gross abuse of process of law by the appellant. In this regard, the following aspects are to be pinpointed,
(i) Appellant executed the Development Agreement with the society for constructing the residential roof for poor factory workers-members of the society, for which the appellant collected Rs.31.75 crores, however paid the amount to the land owners only to the extent of Rs.12,19,13,000/-, the appellant became liable to refund to the society Rs.17,57,87,000/- with interest.
(ii) Award was passed for the aforesaid amount in favour of the society by the Joint Registrar, upon the society raising the dispute under Section 70 of the
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Cooperative Societies Act, including for payment of Rs.3 crores damages.
(iii) When the said award was challenged in writ petition No.26288 of 2017, the court while disposing of the petition, put the appellant to condition of depositing Rs.2 crores, failing which, the society was entitled to execute the award.
(iv) The said condition was never complied with by the appellant. Rs.2 crores pursuant to the said order was not deposited.
(v) As a necessary consequence, the award became final, rendering the society entitled to implement and execute the same.
(vi) While pursuant to the aforesaid order, Rs.2 crores was not deposited by the appellant, in the proceedings of writ petition No.1229 of 2018 wherein the auction of wife's properties was challenged, the appellant did deposit the amount as a condition for stay of auction.
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(vii) This contrast was a convenient exploitation of process of law.
(viii) Appellant agreed for arbitration at one stage, but by his own conduct, deliberately kept arbitration at bay and avoided the obligations which may arise in the arbitral process. The appellant filed further writ petitions and appeals in the same subject matter relating to the award and the properties which were sought to be auctioned. The same were dismissed for default.
(ix) Even as the award of the Joint Registrar had become final as above, with right accrued to the society to execute the same, after gap of six years, the appellant filed appeal before the Karnataka Appellate Tribunal challenging the award.
(x) The passage of time of six years was marred by one litigation after another as stated above. 5.1 Abuse of process of law and misuse of court machinery may arise in several ways. The writ petitions, statutory appeals and other legal remedies, in these days, more often than not, become exploitative tools in
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the hands of unscrupulous litigants to protract the litigation somehow and anyhow. Thereby, such litigants not only succeed to avoid discharging of their legal obligations, they prevent the bonafide litigants-the other side from reaping the legitimate fruits of litigation. Ill- intentioned continued litigation, which does not see the light of the day for the successful party for long for no good reason, could be a factor to erode the faith in justice delivery system. The instances of such kind and nature have to be nipped in bud with stern hand. 5.1.1 The abuse of process of law is always a matter of judicial dislike. The Supreme Court has frowned upon unethical litigants who misuse the machinery of law. In Oswal Fats and Oils Ltd. v. Additional Commissioner (Administration), Bareilly Division, Bareilly [(2010) 4 SCC 728], the Supreme Court observed that the party who resorts to abuse of legal process will lose right to relief. It was observed that, "...a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly
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disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person." (para 19) (Emphasis supplied) 5.1.2 In Ram Rameshwari Devi v. Nirmala Devi and others [(2011) 8 SCC 249], the Apex Court was commenting upon the dilatory tactics and abuse of process of court in relation to civil proceedings. It was observed that abuse of process results into consequent harassment of opposite party, waste of courts time and benefit to the wrongdoer at the cost of honest litigant. 5.1.3 The Supreme Court emphasized that the wrongdoer should not get the benefit out of frivolous litigation and proceeded to observe, "... We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In
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order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases." (para 43) 5.1.4 In A.Shanmugham v. Ariya Kshatriya Rajakula Vamshathu Madalaya Nandhavana Paripalanai Sangam [(2012) AIR SCW 3017], as also in Mariya Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira [(2012) 5 SCC 370], the Supreme Court favoured that the wrongdoers should be controlled by saddling with heavy cost. In A.Shanmugham (supra), it was succinctly observed, "Unless wrongdoers are denied profit or undue benefit from frivolous litigations, it would be difficult to control frivolous and uncalled for litigations. Experience also reveals that our Courts have been very reluctant to grant the actual or realistic costs. We would like to explain this by giving this illustration. When a litigant is compelled to spend Rs.1 lac on a frivolous litigation there is hardly any justification in awarding
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Rs.1,000/- as costs unless there are special circumstances of that case. We need to decide cases while keeping pragmatic realities in view. We have to ensure that unscrupulous litigant is not permitted to derive any benefit by abusing the judicial process." (para 35) 5.1.5 In the present case, after the order in the writ petition No.26288 of 2017 by which the challenge to the award was finalized, a series of litigation in one or another form, or either in person or through proxy were repeated in relation to the same controversy in the issue before different forum in different formats. Every time the appellant twisted the litigation to seek some relief, ultimate to stall the execution of the award and to avoid liability to pay under the award. The conduct deserves to be characterised as abuse of process and misuse of machinery in law.
5.2 The another aspect is that when the appeal was filed before the Tribunal, it was delayed by six years and thus barred by limitation which was sixty days. In the explanation sought to be advanced by the appellant for such inordinate delay, was that the earlier litigations
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were bonafide spending of time. Having noticed the kind of litigation which preceded the filing of the appeal before the Tribunal, and looking to the conduct of the appellant, in particular in the context of filing petitions and appeals, as well as generally, it could be hardly be said that the appellant had been bonafide in litigating. It was patently erroneous on the part of the Tribunal to view and treat the various petitions and appeals preferred by the appellant in past to be bonafide litigation to be legitimately counted for condoning delay. 5.3 Another irregularity partaking illegality came to be committed by the Tribunal, when it admitted the appeal, at the same time keeping the question of limitation open. Admission of the appeal on one hand and leaving the limitation issue to be considered later, cannot be said to be permissible in law to be the simultaneous course. Limitation is not the aspect which could be postponed for a decision about condonation of delay, yet the appeal could be admitted.
5.3.1 The expiry of limitation period for availing a remedy in law, marks suspension of cause of action. The
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cause of action revives only if the delay is condoned and the bar of limitation is thereby overcome. After the limitation period is over, party is not entitled to pursue the remedy to agitate and enforce his rights, unless the delay is condoned in terms of the statutory permissibility. Upon expiry of limitation, at the same time, substantive right crystalises for the other side. The issue of limitation cannot be equated with the preliminary objection in the proceedings, such as, availability of alternative remedy and maintainability. Such issue may be kept open by the court or forum concerned to be decided at the time of final hearing of the case. However, the issue of limitation goes to the root as to the very commencement of the proceedings, which travels beyond a mere maintainability.
5.3.2 Division Bench of Allahabad High Court in Ram Prakash v. Deputy Director of Concolidation, Hardoi and others [2022 LiveLaw (AB) 64] observed in para 21 as under, "As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is
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concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day.
However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted." 5.3.3 When an authority entertains the proceedings otherwise barred by limitation without adverting to condoning delay, it acts without jurisdiction or in usurption of jurisdiction if ignores or give a go-by to the issue of condoning delay. The question of limitation and condonation of delay has to be addressed and decided at the threshold of the proceedings, and not in subsequent course. Such an approach has to be treated as illegal. 5.4 Besides the above peripheral aspects which amounted to irregular and illegal exercise of jurisdiction by the Tribunal in admitting and entertaining the appeal, what strikes finally to render the proceedings of the Tribunal illegal and without jurisdiction, was that the
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substratum of challenge before it, namely the award dated 28th April 2017 passed by the Joint Registrar requiring the appellant to pay Rs.20 crores and more, had entered finality in the writ petition No.26288 of 2017. Because of not depositing Rs.2 crores by the appellant, which was a condition precedent imposed while staying the award, was not complied with. It is to be recollected that thereby right finally accrued with the society to execute and implement the award. 5.5 As noticed above, Writ Petition No.26288 of 2017 was finally disposed of. The condition of deposit of Rs.2 crores was never satisfied by the appellant. While disposing of the petition, the court put a rider and observed thus, "It is however made clear that if petitioner fails to deposit the sum of Rs.2 crores before the respondent-society within two months from today, and fails to produce a receipt before the Joint Registrar for having deposited such an amount, petitioner will not be entitled for the benefit of this court. On such default by the petitioner, the respondent-Society would be entitled to proceed with the execution proceedings to
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implement the award passed by the
respondent No.1 on 28.04.2017 vide
Annexure-S."
5.5.1 In the order of dismissing the writ petition
No.900 of 2022, the court had an occasion to make the following observations, "it is evident that the petitioner who has suffered an award in the sum of more than Rs.20 crores is desperately trying to forestall the execution proceedings.... The petitioner is estopped from contending that the award could not have been passed against him, since the question having been raised at the hands of petitioner is answered against him by this Court at the earlier round of litigation."
5.6 Now, as noticed from the facts above, when the writ petition No.26288 of 2017 was filed by the appellant challenging the award and the right to execute the same was crystalised for the cooperative Society, on account of non-compliance of the condition of deposit of Rs.2 crores by the appellant, which was never complied with till the appellant adventured to prefer appeal to challenge the award before the Appellate Tribunal, after six years, the
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order and the decision in the writ petition operated as res judicata. The appeal before the Tribunal challenging the award was filed with reference to same bundle of facts and in respect of the issue which was dealt with by the writ court in Writ Petition No.26288 of 2017, in which, the society had become entitled to the fruits of award. 5.7 In Daryao and others v. State of U.P. and others [AIR 1961 SC 1457], the following were observed by the Supreme Court, "... If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law.
Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution
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itself. The binding character of judgments
pronounced by courts of competent
jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis." (para 18) 5.7.1 In Daryao and others (supra), the Supreme Court quoted in paragraph 18 the statement of law from Corpus Juris Secundum (Volume 50 (Judgment) page 603), which applies to the facts of this case, "...the doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to an action between the same parties for the same cause in the same court or in another court, whether the latter has concurrent or other jurisdiction."
5.8 The proposition is no longer res integra that the decision in the writ proceedings becomes res judicata in the subsequent proceedings relating to the same subject matter involving the issue dealt with in the writ petition.
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5.8.1 In State of Punjab v. Bua Das Kaushal [(1970) 3 SCC 656], the Apex Court observed thus, "5. The question whether the decision in a writ petition operates as res judicata in a subsequent suit filed on the same cause of action ahs been settled by this court in Union of India v. Nanak Singh. It has been observed that there is no good reason to preclude decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of finality of decision after full contest."
5.9 Once the issue about the award passed against the appellant became final by virtue of the order passed in the aforementioned writ petition, as back as in the year 2017 and the award has come implementable at the hands of the society with finality in law attached to it, that very fact barred the proceedings of appeal before the Tribunal. The finality of the implementability of the award would operate as bar to challenge the same before the Tribunal, in view of applicability of principles analogus
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to res judicata. The Tribunal could not have entertained the appeal of the appellant, but for travelling beyond the jurisdiction. In the facts of the case, the Tribunal acted de horse the jurisdiction and committed a jurisdictional error in entertaining the appeal.
5.9.1 There applied the doctrine of finality also. The award had become implementable as per the order in writ proceedings in the year 2017. It court not have been reopened and challenged before the Tribunal subsequently. The Tribunal could not have exercised the jurisdiction it was not available.
6. Having held as above that the proceedings taken out before and what is held by the Tribunal were without jurisdiction and the order passed below I.A. No.4 and I.A. No.7 were not lawful, liable to be set aside, it has to be reiterated that, the entire range of conduct by the appellant was nothing but abuse of process of law. An award which had become final in the year 2017, was not permitted to be implemented and the society was deprived of the fruits thereof, by initiating the petitions and appeals one after another, all frivolous and often by
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suppression of material facts or with vice of suggestio falsi. As observed by the Supreme Court, the imposition of cost should follow as a deterrent measure. Therefore, the cost of Rs.50,000/- (Rupees Fifty Thousand only) is imposed on the appellant to be paid to the High Court Legal Services Committee within one month from today.
7. For the foregoing discussion and reasons, the appeal fails and the same is dismissed with costs to be paid as above.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE BKV