SRI. VARDHAMAN v. GUNJAL
Case Details
- 1 - NC: 2025:KHC:11409 WP No. 44514 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 44514 OF 2018 (CS-RES) BETWEEN 1. SUSHEELA S W/O G RUDRAPPA AGED ABOUT 40 YEARS 2. SRI RUDRAPPA G S/O LATE V GANGAIAH AGED ABOUT 55 YEARS DEAD BY LR’S 2(a) SWAPNA RANI D/O LATE RUDRAPPA .G. AGED ABOUT 28 YEARS 2(b) SNEKA RANI D/O LATE RUDRAPPA .G. AGED ABOUT 28 YEARS ALL ARE R/AT 108 2ND CROSS, 3RD MAIN NAGENDRA BLOCK BENGALURU-560 050 ...PETITIONERS (BY SMT. LAKSHMI IYENGAR., AND SRI. VENKATARAMANA K.S., ADVOCATE ) AND 1. THE UNIFIED SOUHARDA CREDIT CO OP LTD NO.1580/9, 22ND MAIN ROAD 5TH A CROSS, BSK 1ST STAGE 2ND BLOCK, SBM COLONY BENGALURU-560 050 Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11409 WP No. 44514 of 2018 BY ITS SECRETARY 2. THE ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES (U/RULE 441) KARNATAKA STATE SOUHARADA CO-OPERATIVE SOCIETIES FEDERATION COURT, BENGALURU-560055. 3. THE RECOVERY OFFICER ASST. REGISTRAR OF CO OPERATIVE SOCIETIES AND RECOVERY OFFICER (U/RULE 441) KARNATAKA STATE SOUHARADA CO OPEARATIVE SOCIETIES FEDERATION BENGALURU-560 055
Legal Reasoning
4. SRI B.S. ANIL KUMAR S/O B. SOHAN RAJ AGED ABOUT 55 YEARS R/AT 1109, 2ND FLOOR, 8TH CROSS, ASHOK NAGAR BANGALORE-560020. 5. SHIVARAJ KUMAR AGED ABOUT 31 YEARS R/O NANGE GOWDA NO. 108, 2BD CROSS, III MAIN, NAGENDRA BLOCK, SBM COLONY, BANGALORE-560050. RESPONDENTS …IMPLEADING APPLICANT (BY SRI. CHANDRASHEKAR H.S., ADVOCATE FOR R1; SRI. YOGESH D. NAIK., AGA FOR R2 & R3; SMT. SUNITHA M., ADVOCATE FOR R4 SRI. VARDHAMAN V. GUNJAL., ADVOCATE FOR IMPLEADING APPLICANT IN I.A.4/19) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A DIRECTION OR WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DTD 27.7.2018 IN CO-OPERATIVE APPEAL - 3 - NC: 2025:KHC:11409 WP No. 44514 of 2018 NO.59/2018 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL, BENGALURU VIDE ANNEXURE-G AND CONSEQUENTLY AWARD DTD4.4.2017 IN DISPUTE NO.JRD/KA.RAA.SOU.SAM.SA.NI/TR- 335/2016-17 PASSED BY THE R-1 VIDE ANNEXURE-F AND ETC. THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 07.03.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ CAV ORDER 1. The Petitioners are before this Court seeking for the following reliefs: a. b. c. Issue a direction or writ in the nature of certiorari, quashing the impugned order dated 27.7.2018 in Co- operative Appeal No.59/2018 passed by the Karnataka Appellate Tribunal, Bengaluru vide consequently Award dated Annexure-G and Dispute 4.4.2017 No.JRD/Ka.Raa.Sou.Sam.Sa.Ni/TR-335/2016-17 passed by the R1 vide Annexure-F in Issue such other direction which the Hon’ble Court deems fit under the circumstances of the case, in the interest of justice and equity. Issue a writ in the nature of certiorari quashing the Sale Certificate dated 22.11.2018 registered as Document No. BSG-1-05968-2018-19 stored in C.D.No.BSGD338 in the office of Sub-Registrar, Basavanagudi, Bengaluru vide Annexure-M. 2. The petitioners had borrowed a loan of Rs.20,00,000/- from Respondent No.1-Bank by mortgaging their property bearing site No.45, BDA - 4 - NC: 2025:KHC:11409 WP No. 44514 of 2018 No.108, 2nd Cross, Nagendra Block, Banashankari 3rd Stage, Bengaluru. Thereafter, they had borrowed a further amount of Rs.12,00,000/- on 18.03.2014 and a further amount of Rs.15,00,000/- on 29.03.2015, the said amount was not paid within time. There being a default in payment Respondent No.1-Bank had initiated proceedings before the Joint Registrar of Bengaluru. 3. Subsequently, the said dispute was transferred to the Assistant Registrar of Co-operative Societies. The petitioners did not file their objections, the Respondent No.2 passed an award on 29.02.2016, directing the petitioners to make payment of an amount of Rs.56,22,064/- together with interest at 17% per annum along with 2% penal interest. 4. The petitioners had challenged the said award before the Karnataka Appellate Tribal in Co-operative Appeal No.59 of 2018, which came to be dismissed vide order dated 27.07.2018. The petitioners had also approached this Court in WP No.9461-62 of - 5 - NC: 2025:KHC:11409 WP No. 44514 of 2018 2018 challenging the said award prior to filing the appeal before the Karnataka Appellate Tribunal. The petitioners are before this Court, challenging the order passed by the Karnataka Appellate Tribunal in Appeal No.59 of 2018 dismissing this said appeal on 27.07.2018. 5. When the matter was pending, the property was auctioned with the Respondent No.4 being declared the successful bidder. However, thereafter the petitioner and the Respondent No.4 had entered into a compromise with the petitioner agreeing to buy the said property from Respondent No.4, in pursuance of which a sale deed has been executed by Respondent No.4 in favour of the petitioner. 6. The sale having taken place, there was a dispute as regards the amount received by the Bank in excess of the amount owed by the petitioners. Hence, this Court vide its order dated 23.4.2024 had appointed an Amicus to assist the Court in regard to the calculation. The Amicus took the assistance of - 6 - NC: 2025:KHC:11409 WP No. 44514 of 2018 S.N.Kumar & Associates, Chartered Accountant who have tabulated the details and a memo to that effect has been filed by the Amicus on 26.06.2024. 7. In terms of certification of the said Chartered Accountant, it is clear that the amount received by way of auction was the sum of Rs.80,00,000/-. The amount due by the petitioners was a sum of Rs.66,44,173/- and as such, the Bank was holding an amount of Rs.13,55,827/- in excess which is required to be refunded to the petitioners. 8. Though it is only this aspect which remains to be considered in the present matter. Sri.Chandrasekhar.H.S., learned counsel for the respondent No.1-Bank, insisted, that the matter be taken up for hearing contending that he had not been heard at all. 8.1. His submission is that there is a large scale suppression by the petitioners, the petitioners have defrauded the Bank as also abused the process of the Court. His submission is that by - 7 - NC: 2025:KHC:11409 WP No. 44514 of 2018 filing WP No.9461-62 of 2018, the petitioner has challenged the auction notice dated 15.2.2018. On 7.3.2018, this Court had granted a stay for a period of six weeks, subject to the petitioner's depositing a sum of Rs.20,00,000/- with the respondent No.1-Bank. The said amount not having been deposited, the interim order stood vacated, without placing the same on record the petitioner had challenged the award by filing an appeal before the Karnataka Appellate Tribunal in Co-operative Appeal No.59 of 2018. 8.2. The said fact of a conditional order having been passed in WP No.9461-62 of 2018, was not brought to the notice either the Karnataka Appellate Tribunal or to this Court in the present matter. Therefore, the petitioners have clearly abused the process of law and have sought to obtain orders to their benefit by suppressing material fact. - 8 - NC: 2025:KHC:11409 WP No. 44514 of 2018 8.3. Even at the time of auction, the petitioners had agreed to make payment of sum of Rs.78,71,000/- on or before 02.11.2018 and a cheque also had been issued in that regard. The cheque was dishonoured on presentation, and no payment was made by the petitioners of the aforesaid amount. 8.4. Thus, he submits that the petitioners are given to misleading the Court and/or abusing the process of the Court. The petitioners have been making empty promises which have not been acted upon at any point of time. On that basis, he submits that none of the claims of the petitioners could be considered, and the above petition is required to be dismissed. 9. Heard Smt.Lakshmi Iyengar., learned Senior counsel appearing for the petitioners, Sri.Chandrasekhar.H.S., learned counsel appearing for the respondent No.1-Bank, Sri.Yogesh D.Naik., learned AGA for respondents No.2 and 3, - 9 - NC: 2025:KHC:11409 WP No. 44514 of 2018 Smt.Sunitha M., learned counsel appearing for respondent No.4, and Sri.Vardhaman G.Gunjal., learned counsel appearing for impleading Applicant. Perused papers. 10. As aforesaid, what remains for consideration is as regards the amount in excess held by the Bank. Since now a sale has occurred, the amount has been remitted to the respondent No.1-Bank and this Court had appointed an Amicus to ascertain the amount which is held by Respondent No.1-Bank in excess of the amounts due to it. 11. The submissions made by Sri.Chandrasekhar.H.S., learned counsel on behalf of respondent No.1-Bank does not deter from the above situation. The auction having been carried out and the sale having been confirmed in favour of the auction purchaser, the Respondent No.1-Bank having received the amounts there will be no purpose in going back in time, to ascertain as to who has committed any fault or who - 10 - NC: 2025:KHC:11409 WP No. 44514 of 2018 has defrauded, when the interest of the Respondent No.1-Bank has already been taken care of by the auctioning of the property and the Respondent No.1- Bank has received more than the amount which was due to it. 12. The submission made by Smt.Lakshmi Iyengar., learned Senior counsel appearing for the petitioners is that the petitioners was desperate to try and save the property of the petitioners, and if there is any default committed by them, the same may be condoned. 13. Accepting the said submission of the learned Senior counsel, though the actions on part of the petitioners are not sustainable in law, considering that the properties of the petitioner had been auctioned without condoning the said actions, the apology is accepted, subject to the petitioner's making payment of a sum of Rs.50,000/- as cost to the Karnataka State Legal Services Authority on account of the petitioner's having sought to mislead this Court and - 11 - NC: 2025:KHC:11409 WP No. 44514 of 2018 the Karnataka Appellate Tribunal as indicated supra and pointed out by Sri.Chandrasekhar.H.S., learned counsel for the respondent No.1-Bank. 14. At the cost of reiteration, what remains is only the settlement of accounts. The Amicus having utilized the services of a Chartered Accountant and a memo of calculation having been filed, it is seen that Respondent No.1-Bank is holding an amount of Rs.13,55,827/- in excess of the amount owed by the petitioners. The Respondent No.1-Bank has also filed a memo of calculation on 28.3.2024 indicating that what was due and payable by the Bank was sum of Rs.11,20,772/- as on 28.3.2024. A Chartered Account has been appointed by this Court having examined the records and having certified the amounts due to be Rs.13,55,827/-, I am of the considered opinion that it would be for the Respondent No.1-Bank to make payment of the aforesaid amounts as certified by the chartered accountant to the petitioners. - 12 - NC: 2025:KHC:11409 WP No. 44514 of 2018 15. In that view of the matter, I pass the following; i. ii. iii.
Decision
ORDER The writ petition is allowed. The Respondent No.1-Bank is directed to make payment of a sum of Rs.13,55,827/- to the petitioners within a period of 30 days from the date of receipt of a copy of this order after deducting a sum of Rs.50,000/- thereof. The said deducted sum of Rs.50,000/- shall be paid by Respondent No.1-Bank to the Karnataka State Legal Service Authority on behalf of the petitioners as costs imposed hereinabove, within the aforesaid period of 30 days. SD/- (SURAJ GOVINDARAJ) JUDGE SR List No.: 2 Sl No.: 1