Karnataka High Court
Sri R Shankarappa vs The State Of Karnataka By Its Secretary on 7 November, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.3023 OF 2016 (GM-RES)
BETWEEN:
SRI R SHANKARAPPA
S/O RAMAKRISHNAPPA
AGED ABOUT 57 YEARS
R/O NO.31, 18TH CROSS
34TH MAIN, IDEAL HOME TOWNSHIP
RAJARAJESHWARINAGAR
BENGALURU-560 098.
...PETITIONER
(BY SRI D.L.N. RAO, SENIOR ADVOCATE
FOR SRI H.N. BASAVARAJU, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY ITS SECRETARY
DEPARTMENT OF CO-OPERATION
VIDHANA SOUDHA
BENGALURU-560 001.
2. THE DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
KANDAYA BHAVANA, K G ROAD
BENGALURU-560 009.
3. THE TAHASILDAR
BANGALORE SOUTH TALUK
BENGALURU.
4. THE GREATER BOMBAY CO-OP. BANK LTD.,
REPRESENTED BY ITS
MANAGING DIRECTOR
2 WP NO.3023 OF 2016
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 HOME CO-OPERATIVE BUILDING
SOCIETY LTD, BY ITS SECRETARY
IDEAL HOMES TOWNSHIP
MYSURU ROAD
BENGALURU-560 039.
7. THE ASSISTANT REVENUE OFFICER
RAJARAJESHWARI NAGAR RANGE
BBMP, RAJARAJESHWARI NAGAR
BENGALURU-560 039.
8. SRI UDAYA RAM YERUMAL
S/O R K THINGALAYA
AGED ABOUT 54 YEARS
R/AT 3RD CROSS, WIDIA LAYOUT
OPP. INCOME TAX LAYOUT
VIJAYANAGAR
BENGALURU-560 040.
9. SRI DHARSHAN SRINIVAS
S/O LATE SRINIVAS
AGE 44 YEARS
R/O NO.217, "THOOGUDEEPA NILAYA"
'F' CROSS, IDEAL HOMES TOWNSHIP
2ND STAGE, RAJARAJESHWARINAGAR
BENGALURU-560 056.
....RESPONDENTS
(BY SRI V. SHIVA REDDY, HCGP FOR R1 TO R3;
SRI RISHAB SHAH, ADVOCATE FOR
SRI VIGNESH SHETTY, ADVOCATE FOR R4 AND R5;
SRI N. RAMACHANDRA ADVOCATE FOR R6;
SRI M. VEERABHADRAIAH, ADVOCATE FOR R8;
SRI D.P. MAHESH, ADVOCATE FOR R9;
3 WP NO.3023 OF 2016
R7 SERVED UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
INSTRUCTIONS GIVEN BY THE RESPONDENT NO.2 TO THE
RESPONDENT NO.3 DATED 02.12.2015 AS PER ANNEXURE-V AND THE
EXIGENCY (EMERGENCY) AUCTION NOTICE PUBLISHED IN INDIAN
EXPRESS NEWSPAPER DATED 25.12.2015 ISSUED ON BEHALF OF
RESPONDENT NO.3 AS PER ANNEXURE-W; AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, petitioner has challenged the legality of the letter dated 02nd December, 2015 produced at Annexure-V to the writ petition issued by the respondent No.2 to respondent No.3 inter alia quashing the auction notice dated 25th December, 2015 produced at Annexure-F. The petitioners have also sought for quashing the internal communication between the authorities dated 20th October, 2011 (Annexure-Q) and communication dated 21st November, 2011 (Annexure-R). The petitioners have also challenged the notice dated 25th May, 2016 issued by the respondent No.3 herein, and such other reliefs.
2. The facts in nutshell leading to filing of this petition by the petitioner are that, the respondent No.8 herein is the 4 WP NO.3023 OF 2016 owner of the property bearing site No.520, situate at Ideal Homes Township, Sector-C, Kenchanahalli, Mysuru Road, Bengaluru (for brevity hereinafter referred to as "schedule property"). The respondent No.6 herein has allotted the schedule property in favour of respondent No.8 herein as per registered lease-cum-sale agreement dated 31st August, 2000 (Annexure-A). Thereafter, possession certificate was issued and the revenue records stand in the name of the respondent No.8. The respondent No.8 intends to sell the suit schedule property and as such, entered into agreement of sale with the petitioner and accordingly, agreement of sale dated 10th December, 2005 was entered into between the petitioner and the respondent No.8 as per Annexure-F to the writ petition.
3. The petitioner further stated that the respondent No.8 has borrowed loan by depositing the original title deeds and the said loan was cleared and there is no mortgage/encumbrance in the respect of the schedule property. Thereafter, due to rift in the transaction, the petitioner has filed Original Suit No.8257 of 2011 before the City Civil Court against 5 WP NO.3023 OF 2016 the respondent No.8 herein and the said suit ended with compromise between the parties on 13th December, 2012 (Annexure-M) to the writ petition. Thereafter, in view of encroachment of a portion of the property, the petitioner has filed Original Suit No.1998 of 2008 and the said suit is pending consideration before the competent Civil Court. It is the case of the petitioner that the respondent No.8 (owner of the schedule property) had borrowed loan from the respondent No.4-Co- operative Bank. On behalf of the Firm i.e. M/s. Kalyani Exporters Respondent No.8 was one of the partners in the said Firm. Since the Firm became defaulter, the respondent No.4- Bank initiated recovery proceedings against the respondent No.8 and as such, the respondent No.5 addressed letter, dated 20th October, 2011, to the respondent No.2 herein to attach the property for default in payment of Rs.58,375/- (Annexure-Q). In the meanwhile, Special Recovery and Sales Officer, Co-operative Department, Mumbai, addressed letter dated 17th February, 2011 to the Office of the respondent No.2 herein to attach the schedule property and in furtherance of the same respondent No.2 herein addressed letter dated 21st November, 2011 to the 6 WP NO.3023 OF 2016 respondent No.5 reporting that the schedule property has been duly attached on 15th November, 2011 by the Assistant Revenue Officer, Bruhat Bengaluru Mahanagara Palike, Bengaluru (Annexure-R). It is the case of the petitioner that the said attachment made by the respondent-authorities at the instance of respondent No.5 is contrary to law and therefore, the respondent No.8 has addressed letter to the respondent No.5 stating that the attachment of the property in question is contrary to Rule 107(19) (a) (b) (c) of Maharashtra Government Rules, 1961 and the respondent No.5 herein, after considering the grievance of the petitioner, by letter dated 07th January, 2012, rejected the same. Feeling aggrieved by the same, the petitioner and the respondent No.8 have filed writ petition No.1112 of 2012 connected with Writ Petition 12518 of 2013, challenging the order dated 02nd December, 2010 issued by the Executing Court of Special Recovery and Sales Officer, Mumbai and further proceedings and this Court, by order dated 29th October, 2015, quashed the sale notice on the ground that no conveyance by way of sale deed was made in favour of the petitioner herein, however, the issue relating to the attachment 7 WP NO.3023 OF 2016 by the appropriate authorities was kept open. Thereafter, the respondent No.2 herein has addressed letter to the respondent No.3 herein to issue publication of auction sale of the schedule property and accordingly, the auction notice was published in the English Daily "Indian Express" on 25th December, 2015 (Annexure-W). Pursuant to the auction notice, the respondent No.9 herein, being a highest bidder, offered to purchase the property for Rs.2,82,00,667/- and has deposited Rs.68,00,000/-. In the meanwhile, the petitioners have filed the present writ petition. The petitioner herein has also filed Writ Appeal No.105 of 2016 before this Court challenging the order dated 29th October, 2015 passed in Writ Petition No.12518 of 2013 and the Division Bench of this Court, by Order dated 21st July, 2017, disposed of the appeal and directed the respondent No.3 to invest the money paid by the auction purchaser/respondent No.9 in a Nationalised Bank in a short-term deposit and further directed to dispose of the present petition.
4. On service of notice, respondents entered appearance. Respondents 4 and 5 filed detailed statement of 8 WP NO.3023 OF 2016 objections and have taken a specific defence that the petitioner is frustrating the steps being taken by respondents 4 and 5 under the provisions of the Revenue Recovery Act, 1890. It is further stated that the petition is filed to stall the auction proceedings and therefore, contended that the Original Suit No.8257 of 2011 is a collusive suit, filing only within an intention to defeat the claim of respondents 4 and 5 and accordingly, sought for dismissal of the petition.
5. I have heard Sri D.L.N. Rao, learned Senior Counsel appearing for Sri H.N. Basavaraju, for the petitioner; Sri Rishab Shah, learned counsel appearing on behalf of Sri Vignesh Shetty, for respondents 4 and 5; Sri N. Ramachandra, learned counsel appearing for respondent No.6; Sri M. Veerabhadraiah, learned counsel appearing for Respondent No.8; Sri D.P. Mahesh, learned Counsel for respondent No.9; and Sri V. Shivareddy, learned High Court Government Pleader for the respondent- State.
6. Sri D.L.N. Rao, learned Senior Counsel appearing on behalf of Sri H.N. Basavaraju for the petitioner contended that 9 WP NO.3023 OF 2016 the impugned instruction dated 02nd December, 2015 is contrary to law, as the property in question was allotted to respondent No.8 by the respondent No.6 as per lease-cum-sale deed dated 31st August, 2000 and thereafter, possession certificate was issued and the respondent No.8 is the lessee and therefore, the said lessee alone is permitted to create mortgage or any encumbrance over the schedule property in favour of Banks or any other statutory bodies and as during the existence of lease period respondent-authorities had taken drastic decision to auction, and therefore, the impugned attachment order passed by the respondent-authorities have no legal basis and requires to be set aside. Nextly, the learned Senior Counsel contended that the petitioner has entered into an agreement of sale with the respondent No.8 on 10th December, 2005 and as on the said date, there was no mortgage and therefore, no attachment order could have been issued by the respondent-authorities. Elaborating his submission on the same point, Sri D.L.N. Rao contended that the pre-existing right of the agreement holder- petitioner herein, prevail over the order of attachment made by the respondent-authorities in the light of the provision contained 10 WP NO.3023 OF 2016 under Order XXXVIII Rule 10 read with Section 64 of Code of Civil Procedure and accordingly, the learned Senior Counsel insisted for quashing the impugned orders of attachment made by the respondent-authorities at the behest of the respondent No.4-Bank. Relying upon the judgment of the Hon'ble Apex Court in the case of VANNARAKKAL KALLALATHIL SREEDHARAN v. CHANDRAMAATH BALAKRISHNAN AND ANOTHER reported in (1990)3 SCC 291, learned Senior Counsel Sri D.L.N. Rao, contended that though Section 64 of Code of Civil Procedure protect the respondent-authorities herein, however, the agreement of sale between the petitioner and the respondent No.8 was much before the orders of attachment and therefore, the contractual obligation between the parties to the agreement of sale, would prevail over the right of the attaching creditor and therefore, sought for quashing the impugned orders. In this regard, learned Senior Counsel has also referred to the judgment of the Hon'ble Apex Court in the case of KANCHERLA LAKSHMINARAYANA v. MATTAPARTHI SYAMALA reported in (2008)14 SCC 258 and contended that as there was cloud in the property in question in the present writ petition and the 11 WP NO.3023 OF 2016 obligation has been created by virtue of the compromise entered into in Original Suit of 8257 of 2011 on 13th December, 2012, and therefore, learned Senior Counsel denied the claim made by the respondent No.4-Bank. Sri D.L.N. Rao, learned Senior Counsel also referred to the judgment of this Court in Writ Petition No.1112 of 2012 connected with writ petition No.12518 of 2013 wherein this Court, by order dated 29th October, 2015, quashed the sale notice and same was confirmed by the Division Bench of this Court in Writ Appeal No.105 of 2016 by judgment dated 21st July, 2017 and contended that the impugned notices are liable to be quashed. In this regard, learned Senior Counsel also referred to Sections 95, 99 and 101 of the Maharashtra Co- operative Societies Act, 1960 and argued that impugned notices are liable to be quashed.
7. Per contra, Sri Rishab Shah, learned counsel appearing on behalf of Sri Vignesh Shetty, appearing for respondents 4 and 5, contended that the respondent No.4 sanctioned loan in favour of a Firm by name M/s. Kalyani Exporters, of which, respondent No.8 is a partner. The said loan 12 WP NO.3023 OF 2016 availed by the Firm was declared as Non-performing Asset and as such, recovery proceedings have been initiated under the Act, and the competent authority has issued the recovery certificate for sum of Rs.2,14,06,741/- with interest at the rate of 17% per annum. Pursuant to the same, the respondent-Bank sold one of the mortgaged property at Bheemanahalli for approximately Rs.1.81 crore as against the outstanding amount of Rs.2.71 crore and thereafter, discovered the schedule property in the present petition belonging to the respondent No.8 as a partner of the borrower Partnership Firm and as such, attachment order was passed by the competent Authority and therefore, there is no infirmity in the impugned order passed by the competent authority for recovery of the borrowed amount by the Firm-M/s. Kalyani Exporters. He further contended that the petitioner and respondent No.8 have colluded with each other and in order to avoid the attachment order, entered into an agreement of sale dated 10th December, 2005. Original Suit No.8257 of 2011 was filed by the petitioner seeking relief of specific performance, which came to be disposed by way of compromise between the parties and decree was passed to defeat the claim of the 13 WP NO.3023 OF 2016 respondent-Bank. He also submitted that the respondent No.8 had entered into memorandum of understanding with one Smt. Geeta Manjappa, to sell the schedule property and same was cancelled. However, the petitioner has paid Rs.49.00 lakh to Smt. Geeta Manjappa. He further contended that the writ petition filed by the petitioner and respondent No.8, challenging the correctness of the attachment by the respondent-authorities, was finally disposed of in Writ Appeal No.105 of 2016, whereby the issue regarding the attachment proceedings was left open by the Division Bench, to be decided in this petition. He further contended that, thereafter, the respondent had taken attachment and auction of the schedule property for second time and the respondent No.9, had deposited Rs.68.00 lakh fixing the auction price at Rs.2.84 crore. Later, the said bidder deposited the entire amount and therefore, it is submitted that the petitioner and the respondent No.8, in order to defeat the right of the respondent No.4-Bank, have presented frivolous petition before this Court. Nextly, Sri Deepak Shah, argued that the agreement of sale dated 10th December, 2005 is unregistered and cash payments are endorsed, which do not set out the 14 WP NO.3023 OF 2016 actual transaction between the parties therein and the consideration amount as shown in the agreement of sale do not tally with the total consideration amount set out in the agreement of sale, which would establish the fact that the alleged agreement of sale is non-est and contrary to law. In this regard, he relied upon the judgment of the Hon'ble Apex Court in the case of SALEM ADVOCATES BAR ASSOCIATION, TAMILNADU v. UNION OF INDIA reported in (2005)6 SCC 344 and argued that Section 64(2) of the Code of Civil Procedure do not protect the interest of the petitioner herein and therefore, sought for dismissal of the writ petition.
8. Sri D.P. Mahesh, learned Counsel appearing for Respondent No.9 and Sri V. Shivareddy, learned Additional Government Advocate appearing for the State, supported the contention of the respondent No.4-Bank.
9. Having heard the learned counsel appearing for the parties, it is not disputed that the respondent No.8 is one of the Partners of M/s. Kalyani Exporters and the said Firm availed loan from the respondent No.4-Bank. On default, recovery 15 WP NO.3023 OF 2016 proceedings were initiated under the provisions of the Act against the Firm. Recovery certificate was issued by the competent authority and therefore, recovery proceedings have been initiated under the provisions of Revenue Recovery Act, 1890. Section 3 of the Revenue Recovery Act, provides for recovery of public money by enforcement of process in other Districts than those in which they become payable. The language employed in the said provision provides for issuance of certificate by the Collector and recovery proceedings be initiated against the defaulter. It is to be noted that the petitioner herein and the respondent No.8 herein have entered into agreement of sale dated 10th December, 2015 in respect of the schedule property, whereby the respondent No.8, intended to sell the schedule property in favour of the petitioner herein. In the light of the rival submissions made by the learned counsel appearing for the parties, the core question to be answered in this petition is, "Whether the attachment order taken by the respondent No.4-Bank be executed against the schedule property in question in view of execution of the agreement of sale dated 10th December, 2015?"
16 WP NO.3023 OF 2016
10. It is not in dispute that recovery proceedings have been initiated against the respondent No.8 herein by the respondent No.4-Bank as the partnership Firm-M/s. Kalyani Exporters, defaulted in clearing the dues to the respondent No.4- Bank and the respondent No.8 is one of the partners to the said Firm. Undisputably, respondent No.6 herein (Ideal Homes Co- operative House Building Society Ltd.), has executed lease-cum- sale agreement on 31st August, 2000 (Annexure-A) whereby respondent No.8 being lessee/purchaser in the said document shall get the registered sale deed executed in respect of the schedule property. It is also to be noted that condition referred to in the said lease-cum-sale agreement (Annexure-A) indicate that the lessee/purchaser shall construct a building and the respondent No.8 shall comply with the terms and conditions within the period of ten years from the execution of lease-cum- sale deed. In the backdrop of these aspects, I have carefully referred to the agreement of sale dated 10th December, 2005 (Annexure-F) between the respondent No.8 and the petitioner herein, whereby the recital to the said document referred to sale agreement dated 25th August, 2003 and supplement agreement 17 WP NO.3023 OF 2016 dated 07th August, 2004 in respect of the schedule property between the respondent No.8 and one Smt. Geeta Manjappa. That apart, the petitioner has entered into memorandum of understanding referring to payment of Rs.49.00 lakh in favour of the said Smt. Geeta Manjappa. Clause 6 of agreement to sale (Annexure-F) refers to the payment made in favour of the said Smt. Geeta Manjappa. In the said agreement to sale (Annexure- F), sale consideration was fixed at the rate of Rs.1,325/- per sq.ft for the the total measurement of the site of 8225 sq.ft., i.e. the total consideration would be Rs.1,08,98,125/-. On careful examination of the agreement of sale dated 10th December, 2005, nowhere it is stated about the actual consideration of the schedule property nor the payment made by the intending purchaser (petitioner herein) to the respondent No.8 and therefore, I find force in the submission made by the learned counsel appearing for the respondent No.4-Bank that the said agreement to sale dated 10th December, 2005 between the petitioner and respondent No.8 is a sham document. I have also noticed with regard to payment shown in the said document in manuscript i.e. shara and same would create a doubt in the mind 18 WP NO.3023 OF 2016 of the Court with regard to the genuineness of the document and real intention of the parties, particularly the intention of respondent No.8 herein, to sell the property in favour of the petitioner herein. It is also relevant to mention that the agreement of sale dated 10th December, 2005 is an unregistered document and actual consideration was not notified in the recital to the said agreement, despite the parties agreeing to complete the sale transaction within three months from the date of execution of the agreement to sale. At this juncture, it is pertinent to mention that neither the petitioner nor the respondent No.8 have produced any document to show the further development regarding execution of the absolute registered Sale Deed, pursuant to the execution of the agreement to sale dated 10th December, 2005 and in furtherance of the compromise in the suit. In that view of the matter, the only inference to be drawn is that the said agreement to sale dated 10th December, 2005 has been executed only to defeat the right of the respondent No.4-Bank.
19 WP NO.3023 OF 2016
11. Though arguments have been addressed by both the parties relating to Section 64 of the Code of Civil Procedure, however, the law is thus well-settled that a contract for sale of immovable property prevails over the subsequent attachment of that property by a creditor. Judgments referred to by the learned Senior Counsel appearing for the petitioner have been considered. However, the execution of such contract/agreement of sale, if any, by the parties before the attachment order passed by the competent authorities, should be tested with the conduct of the parties to the agreement. As mentioned above, after execution of the agreement to sale dated 10th December, 2005, no development had taken place to execute the registered sale deed by the respondent No.8 in favour of the petitioner herein and that apart, the respondent No.8 being a partner of M/s. Kalyani Exporters, defaulted to respondent No.4-Bank, the same was within the knowledge of Respondent No.8 and petitioner. The conduct of the respondent No.8 and the petitioner herein with regard to the disposal of Original Suit No.8257 of 2011 on 13th December, 2012 by way of compromise, would clearly indicate the intention of the parties to defeat the legitimate claim 20 WP NO.3023 OF 2016 of the respondent No.4-Bank. Though an agreement of sale requires no registration, the consequential act of the agreement of sale dated 10th December, 2005, would decide the object of attachment under Section 64 of Code of Civil Procedure. In the instant case, pursuant to the agreement of sale dated 10th December, 2005, neither the petitioner nor the respondent No.8 herein had taken decision to execute the registered Sale Deed. No material is produced to show what efforts are made thereafter to conclude the sale transaction. This would clearly establish the fact that the provision of law contained under Section 64 of the Code of Civil Procedure intends to protect the genuine buyers and they should not be allowed to become the victims of fraud. Though, the agreement of sale stipulates that registered sale deed to be executed within three months, however, there is no material produced by the petitioner nor the respondent No.8 to establish the subsequent events to complete the sale transaction and therefore, the petitioner is not entitled for the benefit of Section 64 of the Code of Civil Procedure in the peculiar circumstances of the case. Incidentally, I find force in the submission made by the learned counsel appearing for 21 WP NO.3023 OF 2016 respondent No.4-Bank with regard to transfer of the consideration of the schedule property mentioned in the agreement of sale. The careful examination of agreement of sale dated 10th December, 2005 would indicate that the sale consideration as per the agreement of sale is Rs.1,325/- per square feet, i.e. Rs. Rs.1,08,98,125/- for 8225 square feet. Recitals in the agreement of sale substantiate that the respondent No.8 has cleared an outstanding amount of Rs.49.00 lakh to Smt. Geeta Manjappa in view of cancellation of agreement between the respondent No.8 herein and the said Smt. Geeta Manjappa; and same would not establish the exact value of the schedule property to be conveyed by virtue of the agreement of sale. I have also noticed from the manuscript shara entered into between the petitioner and the respondent No.8 in the agreement of sale dated 10th December, 2005, wherein the consideration amount is conveyed through huge cash payments and therefore, same would create a doubt in the mind of the Court as regards the execution of the agreement of sale is to defeat the claim of the respondent No.4-Bank, by way of attachment. Therefore, I am of the view that the judgments 22 WP NO.3023 OF 2016 referred to by the learned Senior Counsel appearing for the petitioner in KANCHERLA LAKSHMINARAYANA and in the case of VANNARAKKAL KALLALATHIL SREEDHARAN (supra) are not applicable to the facts on hand as the petitioner has not established the genuineness of the document. The Hon'ble Supreme Court, by referring to Section 64 of Code of Civil Procedure, held that the said provision was intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement of sale which was before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor. However, in the peculiar facts and circumstances of the present case, undoubtedly, the agreement of sale dated 10th December, 2005 is an unregistered document; there is no clear picture about the actual consideration of the sale of the schedule property; recitals of the agreement suggests that the registered Sale Deed has to be executed within three months of the agreement of sale, however, no further action has been taken by either of the parties to the agreement; manuscript in shara indicates payment of huge sum in cash, all these things would 23 WP NO.3023 OF 2016 create a doubt in the mind of the Court relating to the agreement of sale dated 10th December, 2005. The Hon'ble Supreme Court in the case of SALEM ADVOCATES BAR ASSOCIATION, TAMILNADU (supra) at paragraph 25 of the judgment, held as follows:
"25. Section 64, as it originally stood, has been renumbered as Section 64(1). Section 64(1), inter alia, provides that where an attachment has been made, any private transfer or delivery of property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment. Sub-section (2) protects the aforesaid acts if made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. The concept of registration has been introduced to prevent false and frivolous cases of contracts being set up with a view to defeat the attachments. If the contract is registered and there is subsequent attachment, any sale deed executed after attachment will be valid. If it is unregistered, the subsequent sale after attachment would not be valid. Such sale would not be protected. There is no ambiguity in sub-section (2) of Section 64."
12. As regards the arguments advanced by the learned Senior Counsel for the petitioner with regard to applicability of 24 WP NO.3023 OF 2016 Revenue Recovery Act, 1890 is concerned, Section 3 of the said Act provides for recovery of public demands by enforcement of process in other Districts and the language employed in the said provision is plain, clear and unambiguous in terms and cannot be held that same is not applicable to the State of Karnataka, as the said Act is pre-Constitutional Act providing for recovering of certain demands and therefore, the impugned orders passed by the respondent-authorities under the said Act is valid and cannot be faulted with.
13. I have also noticed the order passed by the Division Bench of this Court in Writ Appeal No.105 of 2016 disposed of on 21st July, 2017, whereby, the said order has been passed without going into the merits of the case and leaving open the issue relating to the attachment by the appropriate authorities to be considered in the present writ petition and therefore, the arguments advanced by the learned counsel appearing for the respondent No.4-Bank with regard to applicability of the Revenue Recovery Act is accepted. In the light of the aforementioned discussion, I am of the view that petitioner is 25 WP NO.3023 OF 2016 not entitled for equitable relief under Article 226 of the Constitution of India. I have also noticed the provision contained under Sections 95, 99 and 100 of Maharashtra Co- operative Societies Act, 1960 read with the relevant Rules which provide for Authority to issue attachment order and private transfer of property inter alia order of attachment against the defaulter and Section 98b of the said Act provides for recovery of arrears of land revenue in default of, as well as apprehension in the mind of the creditor, seeking attachment of the property in question, would empowers the creditor to execute such orders passed by the competent authority for realisation of the outstanding due and in that view of the matter, I do not find any acceptable ground urged by the learned Senior Counsel appearing for the petitioner.
14. Yet another ground for dismissal of the petition is that the respondent No.8, being a partner of M/s. Kalyani Exporters, neither challenged the original order passed by the respondent No.4-Bank nor had taken steps to clear the outstanding towards the dues of the respondent No.4-Bank. It is 26 WP NO.3023 OF 2016 also pertinent mention here that publication of auction sale of the schedule property was taken in the Dailies after the round of auction was failed and on that count also, I am of the opinion that the petitioner has not made out a case for interference in the matter. Accordingly writ petition is dismissed as devoid of merits.
SD/-
JUDGE lnn