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2004 DIGILAW 107 (AP)

Holy Family Education Society v. A. P. Vardhaman (Mahila) Co-operative urban Bank Ltd. , Hyderabad

2004-02-03

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD Sri Bankatlal mandhani, the Counsel representing the revision petitioner and Sri K. Gopala Krishna murthy, the Counsel representing the first respondent. ( 2 ) THE first respondent, the A. P. Vardhaman (Mahila) Co-operative Urban bank Limited, Ramkote, Hyderabad represented by its Managing Director- the plaintiff in ARC No. 703 of 1999 filed CMP no. 552 of 2004 to vacate the interim order dated 16-9-2003 in C. M. P. No. 3096 of 2003 in CRP No. 669 of 2003 and pass such other appropriate orders. A reply affidavit was also filed to the vacate application. Both the counsel made elaborate submissions and also made a request to dispose of the main c. R. P. itself and that is how the main C. R. P. was heard by this Court and the same is being disposed of. ( 3 ) M/s. Holy Family Education society represented by its President sri P. German Reddy and others moved this Court under Article 227 of the constitution of India questioning the award dated 28-10-1999 passed by the second respondent-the Co-operative Sub-Registrar (Arbitrator) in ARC No. 703 of 1999. The learned Counsel representing the revision petitioners had raised the principal ground that the A. P. Vardhaman (Mahila) Cooperative urban Bank Limited (here-in-after in short referred to as bank ) for the purpose of the convenience cannot invoke the jurisdiction of the Co-operative Sub-Registrar (Arbitrator) under Sections 61 and 62 of the a. P. Co-operative Societies Act, 1964 inasmuch as the claim of recovery exceeds rs. 10,00,000/- and hence the Tribunal under the Recovery of Debts Due to Banks and financial Institutions Act, 1993 alone has got exclusive jurisdiction to entertain such claim especially in the light of the definitions of banking company in Sections 5 (b) (c) of the Banking Regulations Act, 1949 and also in view of the clear language of Section 56 of the said Act dealing with the Act to apply to Co-operative Societies subject to modifications. The learned Counsel pointed out that no doubt certain proceedings were with drawn and a CRP as against an objection raised under Section 47 of the code of Civil Procedure also was dismissed at the stage of admission. The learned Counsel pointed out that no doubt certain proceedings were with drawn and a CRP as against an objection raised under Section 47 of the code of Civil Procedure also was dismissed at the stage of admission. But this crucial point relating to the inherent lack of jurisdiction of the Co-operative Sub-Registrar (Arbitrator) to entertain the dispute under sections 61 and 62 of the A. P. Co-operative societies Act, 1964 had not been specifically adverted to. The Counsel with all vehemence had taken this Court through all the factual aspects commencing from the passing of the award till date. The learned Counsel also placed strong reliance in Ferozi Lal Jain v. Man Mal, AIR 1970 SC 794 , Smt. Kaushalya Devi v. K. L. Bansal, AIR 1970 sc 838 and Sibapada Roy Chowdhury v. Sudhangsu Kumar Sen, AIR 1980 Cal. 90 . Incidentally, the learned Counsel also had canvassed that the very award made by the co-operative Sub-Registrar (Arbitrator) cannot be said to be an award on consent and no reasonable opportunity was afforded and in fact the award was made in contravention of the procedure specified under Rule 49 (4) of the A. P. Co-operative societies Rules, 1964. The Counsel also would maintain that at any rate since it is a question of inherent lack of jurisdiction to make an award, the said question can be raised at any time and hence the mere dismissal of the prior writ petitions as withdrawn or dismissal of the CRP, would not come in the way of this Court in adjudicating this principal question raised in the present C. R. P. The learned Counsel also had explained in detail all the other factual details well narrated in the grounds raised in the present CRP. ( 4 ) PER contra Sri K. Gopala Krishna murthy, the learned Counsel representing the first respondent submitted that the chronology of events commencing from the date of making of the award till date would clearly go to show that this is simply an abuse of process of law and nothing more. The learned Counsel also submitted that the award, in fact, was made on the admission made by the principal borrower which would amount to a consent award. The learned Counsel also submitted that the award, in fact, was made on the admission made by the principal borrower which would amount to a consent award. The Counsel also would maintain be that as it may an attempt was made to file an appeal with an application to condone the delay and yet another attempt was made questioning the said order and two other attempts were made by filing writ petitions raising the self same grounds which had been withdrawn without even reserving liberty and subsequent thereto yet another objection was raised under section 47 of the Code of Civil Procedure read with 151 of Code of Civil Procedure which had been dismissed and the same was questioned by way of C. R. P. wherein the first question which had been raised is the self same question and again by filing the present C. R. P. under Article 227 of the constitution of India, the said question is being raised. The Counsel submitted that, in the facts and circumstances of the case, the said question of inherent lack of jurisdiction need not be gone into, since definitely the remedy of the party if any is elsewhere to question the order already made in the C. R. P. which had been dismissed by this Court. The learned Counsel also had submitted that in the light of the peculiar facts and circumstances, it is definitely a fit case where exemplary costs are to be awarded. ( 5 ) HEARD both the Counsel and also perused the material available on record, several other factual details narrated in the grounds of the CRP filed under Article 227 of the Constitution of India and the details furnished in the affidavit filed in support of the application and also in the Counter filed in support of the vacate application need not be dealt with in detail, for the reason that in the light of several prior proceedings, I am of the considered opinion that all these factual aspects, in detail, need not be repeated again. However, in short compass, the factual matrix may be narrated as hereunder: ( 6 ) IT is not in controversy that the revision petitioners had suffered the award in ARC 703 of 1999 on the file of the Co-operative Sub-Registrar (Arbitrator) and the same was made on consent made by the first petitioner herein-the principal borrower. However, in short compass, the factual matrix may be narrated as hereunder: ( 6 ) IT is not in controversy that the revision petitioners had suffered the award in ARC 703 of 1999 on the file of the Co-operative Sub-Registrar (Arbitrator) and the same was made on consent made by the first petitioner herein-the principal borrower. The question whether as against such a consent award, whether an appeal would lie or not need not to detain this court any longer for the reason that this question may not be very relevant for disposal of this C. R. P. No doubt the Counsel representing the revision petitioner had submitted that the other parties had not admitted the claim and at any rate the said award was made in contravention of rule 49 (4) of the A. P. Co-operative Societies rules, 1964, and hence appeal can be maintained. I am not inclined to express any opinion on this aspect since the same is not relevant for the present purpose. The question which had been seriously canvassed is that the Co-operative Sub-Registrar (Arbitrator) has no jurisdiction to entertain a claim exceeding Rs. 10,00,000. 00 of a Co-operative Bank under Sections 61 and 62 of the A. P. Co-operative Societies act, 1964 in view of the specific bar imposed by virtue of Sections 17 and 18 of the recovery of Debts Due to Banks and financial Institutions Act, 1993. I had carefully gone through the orders made in w. P. No. 8507 of 2001, W. P. No. 19143 of 2001 and W. P. No. 26057 of 2001 and also CRP No. 5230 of 2002. It is really surprising to note that whatever may be the context, the same ground was agitated. In fact, in the affidavit filed in support of the writ petitions, the same grounds now raised in the present CRP had been specifically stated, but for reasons best known, the writ petitions were withdrawn and consequently they were dismissed without reserving any liberty whatsoever. It is also pertinent to note that at a stage, an objection was raised by moving an application under Section 47 read with Section 151 of the Code of Civil procedure which resulted in dismissal and the same was carried by way of CRP no. It is also pertinent to note that at a stage, an objection was raised by moving an application under Section 47 read with Section 151 of the Code of Civil procedure which resulted in dismissal and the same was carried by way of CRP no. 5230 of 2002, wherein the self same question was raised, as the first question and in view of the facts and circumstances, the said CRP also was dismissed with exemplary costs. ( 7 ) HAVING failed in all these attempts whether the petitioners can be permitted to raise the self same question by moving this court under Article 227 of the Constitution of India. The stand taken by the learned counsel for the revision petitioners is that inasmuch as it is a question of inherent lack of jurisdiction at any stage of the proceedings, the same can be raised and hence the petitioners are not precluded from raising this question, the principal question, to the effect that the very award made is without jurisdiction, 1 am not inclined to accept with the said contentions, since the remedy of the petitioners definitely is elsewhere, but not before this Court by moving yet another CRP under Article 227 of the Constitution of India. In the light of the withdrawal of the prior writ petitions without reserving any liberty wherein the self same grounds had been raised and also when an attempt was made to raise the self same ground, as the first ground in the c. R. P. No. 5230 of 2002 which had been already dismissed, invoking the jurisdiction of this Court again under Article 227 of the constitution of India raising the self same ground is definitely abuse of process of law. If such repeated attempts on the part of litigants are permitted the parties who had obtained the decrees or awards, as the case maybe, may not be able to enjoy the fruits of the decrees or the awards at all. Such obstructive and delaying tactics on the part of the judgment debtors may have to be deprecated. In the light of the conduct of the revision petitioners referred supra, I am thoroughly satisfied that it is a fit case where exemplary costs are to be awarded. ( 8 ) ACCORDINGLY, the CRP shall stand dismissed and the revision petitioners shall pay Rs. 25,000. In the light of the conduct of the revision petitioners referred supra, I am thoroughly satisfied that it is a fit case where exemplary costs are to be awarded. ( 8 ) ACCORDINGLY, the CRP shall stand dismissed and the revision petitioners shall pay Rs. 25,000. 00 by way of exemplary costs to the A. P. Vardhaman (Mahila) Co-operative urban Bank Limited, the first respondent in the CRP. Note : The Exemplary Costs have to be paid to the first respondent by the as per the court order dated 3-2-2004.