Sri P M Abubakar vs The State Of Karnataka on 11 January, 2010

[Cites 1, Cited by 9]

Karnataka High Court

Sri P M Abubakar vs The State Of Karnataka on 11 January, 2010

Bench: L.Narayana Swamy

 

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE W DAY 01:? JANUARY, 20 1Q___
BEFORE I I
THE HONBLE MRJUSTICE L NARAYANfaé3WA1§é§'---I'  I-

LJRIT ?5'r2:-'ION  23(s0;0jfg.p-0&3" ._  
LJKIT PE7;7co,\f:. ;xI.;§.A~2_3II:~E§A'é~_.'/'2 <.w:;.,§;.I(fV4}$"*'3"'f'~_9

WP NO.2369O [ 2009
BETWEEN:

SR1 P.1\/LABUBAKAR V   -  
SON OF MOHAMMED'-PA;D_L'£J   _
AGED 58 YEARS, '   .  '
ISHA MANZIL, GUDI MAJIAL, '
MALPE. UDUPE,'  ' "

 -------- _      .-PET1rm\1r:R
{BY SgRI.MAI\IIVLfOIL5LN 9,N._,_Amr0cATE}

AND: 

1. I _THE°E3TATE,'OF'»_KARNATAKA
_; VDEPARITMENT OF CO~OPERATI\/E

 ;_SQ(I.IETIES,'"Evi;S.BUILDING.
. 3 D.R.AMBEDKAR VEEDHI,

 _ "aA3qG.aLQRE ~ 560 001

. "RE;1?RESENTED BY ITS SECRETARY.

 THE? «IDEPUTY REGISTRAR OF
.. C'Q~OPERATIVE SOCIETIES.
UDUPI DISTRICT, UDUPI.

' THE ASSISTANT REGISTRAR OF
CO~»OPERATIVE SOCIETIES <31;
RECOVERY OFFICER.
KUNDAPURA DIVISION.

vi

 



KUNDAPURA, UD UPI.

4.  SHMI CO--OPERA'I'I\/E
BANK LIMITED, UDUPI--5'?6 10},
REPRESENTED BY ITS
GENERAL MANAGER

5. SRLKESHAVA N KOTIAN    : 
SON OF' LATE MENKA TH1NjGHALAYA., '1 'A ' "
AGED ABOUT 47 YEARS, " «  T ~ '  "
SHOBHA MAHAL, KALMADY,  

MALPE, UDUPI 'i'ALUK,__  

(BY sR1.K1sH0;éE..A'sH«E,*i4I'y*-I'gz:SR1 NAi*ARAJ BALAL.

ADVS. FOR C /95. A BY ?.;.»S:RI"'*-JAYAKUMAR s PATIL

(SRCOUNSEL), SACHINfK.C. ,_.AD\f/§.EfOR R-4)

THIS  1«?ii;£i;3.V,1Pé§AY1NG TO QUASH
THE ORDER 5'*DT_1'.18«--7--fZ_OO9.. f--PASSE3D BY THE 2N9

RESPONDiENT----.1N"?APP--&5LL-- ..'1\'fo;':é/(38-09 {PRODUCED AS
ANN13:X.A)      

WP No.23196g 200:3  ~_  

BETVV._E_<E_I\_I: N

 " 3 V'  ':1' AKSPIMI co4O'P1:RA11VE
 BANK LIM{1'ED--,. UDUPI -- 578 101
* REPR}£SEN'i'ED_ BY ITS

 MANAGER.

: PETITIONER

  ' my SRi.SACHIN K.C. FOR DHARMASHREE ASSTS.)

'  1.} THE STATE OF' KARNATAKA

DEPARTMENT OF CO--OPERATIVE

  



 "  . {B'§;?.Sf{{';ZA4'1EEI§VAHMED, AGA FOR R1 TOR3,

SOCIETIES, M.S.BUILDING,
DRAMBEDKAR VEEDHI,
BANGALORE _ 560 001
REPRESENTED BY ITS SECRETARY.

2. THE DEPUTY REGISTRAR OF
CO--OPERATIVE SOCIETIES,

UDUPI DISTRICT, UDUPI.

3. THE ASSISTANT REGISTRAR OF « ._ 
CO--OPERATIVE SOCI£*3'I'IES'~..&  . 
RECOVERY OFFICER, V ~
KUNDAPURA DIVISION, 
KUNDAPURA, UDUPI. ' 

4. SRLKESHAVA    
SON OF LATE MEN~KA'TH;INGH_ALAYA.

AGEDABOUT47   I  _
SHOBHA  '   1- "
MALPE, UDUPI _  '- ' 

5. ,SRI.P.:»cr.AB*I1EAi<AR 
SON OE;MO'z4IAMIvIED PADLU SAHEB
AGED 58 'YEARS,   ~ '
ISHA MA;N.Z1L,' OUDI" MAJAL.
 UDUPL " 

: RESPONDENTS

. W , _SRI.KISHC)RE SHE! 1 Y, ADV. FOR R4,

   P.N., ADV. FOR R-5)

 TIeIISI:'?--;w:;RIT PETITION FILED PRAYING TO QUASH
THE ORDER DT.18--O7-{)9 PASSED BY THE R2 IN APPEAL

 No.0?/Vosuog VIDE ANX--A.

 _     THESE PETITIONS COMING ON FOR HEARING THIS
  DAY, THE COURT MADE THE FOLLOWING:

f,

5'



ORDER

The appeal filed by the respondent~i's}o..S..t5eifore t.he'* 2nd respondent u/s 106(3) of the Societies Act 1959 has<'been 'ai_lowed.VT'i5Ir1e._"second,0' respondent by the order the appeal and the respondent dated 2.3.2009 V' ''.Therefore the petitionerf_a,1.i.c'tio;:rii_'-.1 Writ Petition No.23;6_90:/p the said order.

obtained a loan of Rs.lO la}{h.s..fr0rri4"thve4iih respondent Bank in the year 2001. 3l;he"t' ,5") respondent became a defaulter, the to auction and the petitioner herein the highest bidder in the public auction on 10.9.2008. The same came to be confirmed as per AnneXure-F in Award N02048/2003- dated 2.3.2009. The property in question is situated f in Sy.No.260/7A measuring 0.32 acres situated at Kodavur village, Udupi Taluk. The 5th respopnden1':~Vp.has taken a contention before the 2116 respondentjV'thatl property, which was auctioned,:"vi}as in order to discharge the decretal amount alpportiorall property should have been It'i.s_ that the adjoining property si:ti.ipate'rjt""1'V.n: Sold on 21.6.2008 for a the same, the 5"" respondent':%¢:étted='._beioi*e lﬁiiﬂarespondent that the property Rs.51,5o,oo0/~ is very low- _theVlVlproperty ought to have been ~«. For this calculation, he placed reliance the yaluation report prepared by Sri .lV.""~Madha%faraya Consulting Engineer dated rid.'-further relied on the decision reported in AlR~._l99}0 so A i 19 (AMBATTI NARASAIAH v. SUBBARAO) ll."4'''-.lVlp''wherein--* : the Supreme Court has held that before Jaiictioning the property, the proper valuation should

-have been made. If it is possible to discharge the T 7?'

4. It is further submitted that the 5"" respondent has no bona tides and has been protracting thereciovery proceedings right from 2005. The 591 aiso failed to comply the interirn...order_s"grarijted"by th_is'* Court on three earlier occasi-onsjdiandtﬁaiso comply with the interim granted.

He has no interest over thpepiroperty bnt 'is. dragging on the proceedings, iisut an abuse of process. .i,,l:f'3Spor2:dent has rightly obserred has approached with unclean i1and.s;":.dhag~._§r'red in passing the impugned order"

respondent has failed to chalienge the "athicition proceedings on the avaiiabie grounds provided underytttiiﬁuie 38(5) of the Karnataka Cooperative Societies A J" 1960. The 591 respondent has also not urged the grounds. '1' he valuation report placed before the J"

if?

8. The learned counsel for the petitioner files a memo producing some photographs and two sale"-«de~eds dated 28.8.2008 one pertaining to property and another deed of _sa1e_and the Valuation report placed by the res correct and it is impossible..V_4"'13he 1e.arI__1edVVeouirs'el'~for the"

petitioner concluded, his arg1:1rn.eritp'. with suibmission that in Vi€W of repeated' part of the respondent no.'5-._ the action A"of-..th'e":'51h respondent is nothing but an abuse of process, petitioner has been made a Asoappe--goat-tfand---i__:ti"1é 531 respondent has played fraud.» _ Hence he snbrnitted to allow the writ petition.' l V

9. 'In"theVeonj_n.eoted Writ Petition No.23l96/2009 _ ﬁledylllthe petition with a similar prayer. The "the"hank is only to get the decree amount, no L3 respondent and therefore such a discretionary order cannot be questioned in the writ petition. There cannot be a direction to exercise the discretion in a particular manner. Pursuant to the order Annexure;A"

respondent visited the 4th respondent bank:fOr'*deposit"

of Rs.40,83,965.00 on 13.s.2o.09;e..dH5'a3ev§§ir,"thAa_">:ie%1 respondent bank refused tobaceeptdthe the L' 5"? respondent has sent thep_ch:jeque_p by .R"P.A DE and the same has been prodiieed to R3. It is submitted tha_t"the has«_been:..V'refused and even todayvditdddis "Account No.O1333. Hence the approached the court and also-authoritiesdwith 'unclean hands and property in d beiongsvﬂtod 5*" respondent. He is entitled to sa.x*e&ddt.¥i§:...vproperty in accordance with the provisions of iaw. e.__"'1"lﬁ:erefore, there is no iliegaiity in the 21%] respondent passing the impugned order and prays for ' disniissal of the Writ pe%tions.

15'

13. Admittedly, there is vast extent of the property and sale of part of it would have satisfied thenwfard amount and there was no necessity to property. No cornpuision or othe1fvvise_.'to'sei},the'enti,re". property is pointed out by third :'respon:dent}----._'i1iie QV property consisted of property. Without 'x,_t)f third respondent has for auction, which is direetiy 'decision of the Suprernei. and an arbitrary exereivsedddv interference by the appeilste -.. ,, "

iearned senior counsel for the respondent ' upon a decision where this Court after pleased to set aside the sale confirmed, in Writ Asppevai N0.213/2009 and also further confirmed by A 'ed' tbe"~Supreme Court in ESL? No. 18098/2009. 'as .We:I1 {as-.....i.*acant. ' 16

15. Therefore, for the above reasons and for the reasons assigned by the appellate authority, I View that the third respondent has committed in conducting auction of entirejproperty a§l'(::iv':'ﬁ_ifV3:

that is fetched to the property to less. Under the circumstances:';'~since'it_:isanxoioiigation Cast on the court under "Karnataka Cooperative Societies a fair price and also togdiispose:=A.'oIf%.f1tvi."':th the Property.

which which exercise the to follow and therefore, it is not court should interfere with the order passedihy thefappellate authority. r result, Writ Petition No.23690/2009 is dis.Iii'issed'.V-V'., the same reasons, W P No.23196/2009 dais also dismissed.

SQ}/..

EZTDGE T " '"akd*

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