K. Sambasiva Rao v. Sai Co-operative Urban Bank Limited, Hyderabad
2003-04-17
V.V.S.RAO
body2003
DigiLaw.ai
V. V. S. RAO, J. ( 1 ) THIS revision petition under article 227 of the Constitution of India is filed against the order of the A. P. Cooperative tribunal, Hyderabad ( the Tribunal for brevity) in I. A. No. 1242 of 2002 in C. T. A. No. 195 of 2002, dated 16-12-2002. By the impugned order, the Tribunal, while suspending the award dated /-9-2002 passed by the second respondent, imposed a condition that the petitioner should deposit a sum of Rs. 2,50,000/- with the first respondent bank. The said order was passed purporting to exercise power under Section 76 of the A. P. Co-operative Societies Act, 1964 ( the Act ) read with Rule 11 of the A. P. Co-operative Tribunal (Procedure) Rules, 1994 ( the Rules for brevity ). ( 2 ) THE petitioner appeared as party- in-person and made submissions for a considerable length of time. His case is as follows: ( 3 ) THE petitioner availed an amount of Rs. 3,50,000/- as a loan from the first respondent bank in April, 1999. He paid an amount of Rs. 1,19,000/- till 2002. According to him, in March 2002, the first respondent promised to reschedule the payment of loan and accordingly he paid an amount of rs. 20,000/- in March 2002, Rs. 10,000/- and rs. 5,000/- in April and May 2002 respectively. In spite of this, now it is alleged, the first respondent bank approached the second respondent for an award for recovery of the amount. After receiving notice from the second respondent, the petitioner appeared before the second respondent, who, according to the petitioner, earlier promised to give time for repayment of loan and also asked the petitioner to pay an amount of Rs. 5,000/ -. Accordingly, the petitioner paid the said amount to the first respondent bank which allegedly promised to withdraw their case under sub- section (3) of Section 62 of the Act before the second respondent. Be that as it is, an ex pane award was passed on 7-9-2002 by the second respondent for an amount of Rs. 5,04,538/- in spite of the petitioner making a request for adjournment by telegram dated 5-9-2002. Having come to know that an ex pane award was passed, the petitioner made an application to set aside the same on 10-10-2002. However, the same was not received.
5,04,538/- in spite of the petitioner making a request for adjournment by telegram dated 5-9-2002. Having come to know that an ex pane award was passed, the petitioner made an application to set aside the same on 10-10-2002. However, the same was not received. Therefore, he filed an appeal under Section 76 of the Act before the Tribunal. ( 4 ) ALONG with the appeal, the petitioner also filed an application being I. A. No. 1242 of 2002 seeking interim suspension of the award dated /-9-2002 passed by the second respondent. By the impugned order, the Tribunal suspended the award subject to the petitioner paying an amount of rs. 2,50,000/ -. Challenging the same, the petitioner filed a writ petition before this court being W. P. No. 25818 of 2002 and the same was dismissed. The petitioner also alleges that he filed a writ appeal against the same and the same is yet to be numbered. ( 5 ) IN the meanwhile, it appears, the first respondent bank initiated execution proceedings under Rule 52 of the A. P. Cooperative societies Rules, 1964 and a notice was published proposing to sell the property mortgaged to the first respondent. Therefore, he filed the present revision petition. The party-in-person, Sri K. Sambasiva Rao, submits that the second respondent committed an error in not accepting the application to set aside the ex parte award though he has got powers. Secondly, he would contend that when the property is mortgaged, there is adequate security for the first respondent bank to recover the loan amount and, therefore, a conditional order passed by the tribunal is wholly unjustified. According to him, Rule 11 of the Rules, has no application. He also placed reliance on various decisions of the Supreme Court in Kumaraswamy Pillai v. Subramonia Iyer, AIR 1955 SC 152, ganga Dhar v. Shankar Lal, AIR 1958 SC 770 and Murarilal v. Devkaran, AIR 1965 sc 225 . These decisions deal with "clog on mortgage" and are relied on by the party-in- person in support of his contention mat when there is a clog on mortgage the mortgagee cannot demand further security from the mortgagor.
These decisions deal with "clog on mortgage" and are relied on by the party-in- person in support of his contention mat when there is a clog on mortgage the mortgagee cannot demand further security from the mortgagor. ( 6 ) AT the outset, this Court is of the opinion that as the petitioner s writ petition being W. P. No. 25818 of 2002 against the same impugned order was already dismissed, by reason of principles of res judicata, this revision petition is not maintainable. It is now well settled that the doctrine of res judicata is applicable to proceedings under Article 226 of the constitution (See Satyadhyan v. Smt. Deorajin Debt, AIR 1960 SC 941 , Dayarao v. State of U. P. , AIR 1961 SC 1457 and amalgamated Coalfields v. Janapada Sabha, air 1964 SC 1013 ). ( 7 ) SECONDLY, after perusing the order passed by the learned Tribunal, I am of the considered opinion that the order was passed strictly in accordance with law. Under sub-section (6) of Section 76, the tribunal constituted under sub-section (1) of section 76 of the Act, is empowered to pass such interim order pending decision on appeal. Further, the Tribunal is required to follow the procedure contained in the Rules. Rule 11 thereof reads as under: 11. Application for interim suspension order :where a parry seeks the interim suspension of the impugned order, he shall file a separate application for the same. Every such application shall be supported by an affidavit in respect of applications for stay or suspension of the impugned orders passed by the departmental authorities, specially relating to misappropriation of amounts and sanction of benami loans, no interim orders in the nature of stay or suspension for a specified period shall be issued unless the applicant produces a cash deposit of not les than 50% of the amount involved in the impugned order or furnishes security of equal value as directed by the Tribunal. ( 8 ) A plain reading of Rule 11 would show that the Tribunal is competent to order stay or suspension of the impugned awards passed by the departmental authorities only subject to the applicant producing or depositing not less than 50% of the amount involved in the impugned award or furnishes security of equal value as directed by the tribunal.
The exercise of discretion to pass an order of stay or suspension is conditional to the Tribunal ordering cash deposit of not less than 50% or furnishing security of equal value. The Tribunal is not vested with the absolute discretion to pass orders without there being any conditional order. It is also well settled that when a judgment and decree for payment of money is impugned in appeal, the appellate Court is competent to suspend or stay the decree of the lower court by imposing conditions. Indeed, as per sub-rule (3) of Rule 5 of Order XLI of the code of Civil Procedure, 1908, no order of stay of execution of the decree of the lower court can be passed under sub-rule (1) or sub-rule (4) of Rule 5 unless the Court is satisfied that sufficient security has been given by the applicant for a due performance of the decree. ( 9 ) VARIOUS Rules are prescribed requiring the appellant/applicant to deposit half of the decretal amount. Sub-rule (5) of rule 5 of Order XLI of CPC further makes it clear that unless the appellant deposits or furnishes security as required under sub-rule (3), the appellate Court shall not make an order staying execution of the decree. Therefore, the order passed by the tribunal does not require any interference under Article 227 of the Constitution of india. It is well settled that the power conferred under Article 227 of the constitution is not intended to correct errors of law and errors of fact. It is mainly intended to see that the lower Court and lower Tribunal act within their jurisdiction and within parameters of law (See Satyanarayan v. Mallikarjun, AIR 1960 SC 137 , Mohd. Yunus v. Mohd. Mustaqim, AIR 1984 SC 38 , Roshan deen v. Preeti Lai, AIR 2002 SC 33 , sadhana Lodh v. National Insurance Co. Ltd. , 2003 0 AIR (SCW) 930 ). ( 10 ) IT is also well settled that a Tribunal constituted under a statute is required to function and exercise powers within the four corners of law. It would exceed its jurisdiction by passing orders which it is not competent to do so (See Union of India v. Paras Laminates (P) Ltd. , AIR 1991 SC 696 = (1990) 4 SCC 453 ).
It would exceed its jurisdiction by passing orders which it is not competent to do so (See Union of India v. Paras Laminates (P) Ltd. , AIR 1991 SC 696 = (1990) 4 SCC 453 ). ( 11 ) IN this case, the impugned order was passed by the Tribunal strictly in accordance with Section 76 of the A. P. Cooperative societies Act, 1964 read with rule 11 of the A. P. Co-operative Tribunal (Procedure) Rules, 1994. This revision petition is wholly misconceived and is abuse of process of law. Therefore, the same is liable to be dismissed, especially admittedly when the petitioner filed a writ appeal against the order of the learned single Judge in W. P. No. 25818 of 2002. ( 12 ) IN the result, for the above reasons, the revision petition is dismissed with exemplary costs quantified at Rs. 2,000/ -.