Sudhatai v. Joint Registrar of Co-operative Societies
2008-12-19
N.KUMAR
body2008
DigiLaw.ai
ORDER Kumar, J. Learned Government Advocate is directed to take notice for first respondent.As no notice was ordered before passing the impugned order to defendants-2 and 3, notice to them is dispensed with. 2. As the question involved is purely a question of law, the matter is taken up for final disposal and disposed of by this order. 3. The petitioners have challenged in this writ petition the. order dated 012.2008 passed by the Karnataka Appellate Tribunal refusing to consider the application for stay filed in the appeal, on the ground that there is delay in preferring the appeal and till the application for condonation of delay is considered and disposed of, it has no jurisdiction to consider the application for stay. 4. The second respondent Harikant Credit Souharda Sahakari Limited, filed a dispute seeking recovery of a sum of Rs.11,65,150-00 against the first petitioner, the principal borrower. The second, petitioner is the surety. The Joint Registrar of the Co-operative Societies referred the dispute to the Assistant Registrar of Cooperative Societies, Chikkodi. The grievance of the petitioners is that the Assistant Registrar of the Co-operative Societies, without issuing any notice to the petitioners, without conducting any enquiry and without application of mind, proceeded to allow the dispute and passed an award directing payment of Rs.1l,65,150-00 to the second respondent with further interest at 17% on Rs.10,00,0001- from 01.07.2007 till the date of payment. The passing of the award was not intimated to the petitioners. When the petitioners were served with notice in Form No.8 seeking the sale of the landed properties, the petitioners enquired and came to know about the exparte award.After obtaining the certified copy of the award, the petitioners preferred an appeal under Section 46 of the Karnataka Souhardha Sahakari Act, 1997 before the Karnataka Appellate Tribunal. In the said appeal, they filed an application under Regulation 13 of the Karnataka Appellate Tribunal Regulations, seeking an order of interim stay of the award. They also filed an application under Section 5 of the Limitation Act, for condoning the delay in preferring the appeal. The appeal came up for admission before the Karnataka Appellate Tribunal. The Tribunal relying on the judgment of this Court in the case of Sri Prakash K. Srivastava Vs. Sri Krishnappa, WP.
They also filed an application under Section 5 of the Limitation Act, for condoning the delay in preferring the appeal. The appeal came up for admission before the Karnataka Appellate Tribunal. The Tribunal relying on the judgment of this Court in the case of Sri Prakash K. Srivastava Vs. Sri Krishnappa, WP. No. 17830 of 2007 diposed of on 17-9-2008, held that the delay application is to be considered before consideration of admission of the appeal. Therefore, without considering the interim application filed for stay of the award, emergent notice was ordered on the application for condonation of delay.Aggrieved by the said order, the petitioners are before this Court. 5. In Sri Prakash K. Srivastavas case, this Court has observed as under: ".. It is relevant to note, the review petition has been filed by the 1 5t respondent after the lapse of nearly years and application for condonation of delay also has been filed. Neither the Division Bench nor the Full Bench of the Karnataka Appellate Tribunal has considered the application for condonation of delay. Without considering the application for condonation of delay, the Division Bench and also the Full Bench have proceeded to consider the matter for admission, which is not correct.Therefore, the impugned orders at Annexures-J and K cannot be sustained in law. The delay application needs to be considered first before proceeding further. Therefore the impugned orders cannot be sustained in law." 6. A careful reading of the aforesaid order makes it clear that the question, whether the application for stay in an appeal filed beyond time can be taken up for consideration without condoning the delay in preferring the appeal, did not arise for consideration in the aforesaid case. All that has been said in the aforesaid judgment is, without considering the application for condonation of delay, the Tribunal cannot consider the matter for admission. The delay application needs to be considered first, before proceeding further. That is the law and there cannot be any quarrel with that proposition of law. 7. The appeal in question is covered by the provisions contained in the Karnataka Appellate Tribunal Regulations, 1979 for short herein after referred to as "the Regulations". Chapter III deals with Presentation of Appeals and Petitions and their Registration. According to Clause (vi) of Regulation 4, the memorandum of appeal should state how the appeal or petition is in time.
7. The appeal in question is covered by the provisions contained in the Karnataka Appellate Tribunal Regulations, 1979 for short herein after referred to as "the Regulations". Chapter III deals with Presentation of Appeals and Petitions and their Registration. According to Clause (vi) of Regulation 4, the memorandum of appeal should state how the appeal or petition is in time. If the appeal or petition is filed after expiry of period of limitation, it shall be accompanied by an application for condonation of delay supported by an affidavit. Clause 9( e) of the Regulations provides that, on presentation of appeal or petition as above, the Registrar shall examine or cause to be examined to see ifit is filed within the time prescribed under the statute, rules or regulations and any other law for the time being in force applicable to such appeal or petition.Clause (f) of Regulation 9 which is relevant, reads as under: "If the appeal or petition is made after the expiry of the period of limitation, the Registrar shall place the same before a Member or Bench. The Member or Bench if satisfied prima facie, that the appellant or petitioner was prevented by sufficient cause from presenting the same within the period prescribed by law, keep the question of limitation open and admit the appeal or petition." 8. How an appeal filed beyond time is to be considered is set out in the said Regulation. It provides for consideration of an application for condonation of delay at two- stages. The first stage is before admission of the appeal. When the appeal papers are placed before the Tribunal along with the application for condonation of delay, the Tribunal, if satisfied prima facie, that the appellant or petitioner was prevented by sufficient cause from filing the appeal in time, keep the question of limitation open and admit the appeal or petition. Therefore, consideration of the application for condonation of delay before admission is a must. It can be considered ex-parte, ie., in the absence of the respondents, before ordering notice to him. If the Tribunal is prima facie satisfied about the sufficiency of the cause for delay, it can admit the appeal, without condoning the delay, keeping open the question of limitation to be decided after hearing the respondents. It cannot condone the delay without hearing the respondents.
If the Tribunal is prima facie satisfied about the sufficiency of the cause for delay, it can admit the appeal, without condoning the delay, keeping open the question of limitation to be decided after hearing the respondents. It cannot condone the delay without hearing the respondents. The consideration of the application for condonation of delay is a condition precedent before admitting the appeal but not condoning the delay. No order condoning the delay is required to be passed before admitting the appeal.Therefore, an appeal could be admitted keeping open the question of limitation.Once the appeal or petition is so admitted, the Tribunal gets jurisdiction to consider the application for stay and pass appropriate interim orders. The principle underlying this provIsion is two fold.Firstly, a valuable right accrued to the opposite party on account of delay is not deprived without hearing him. Secondly, persons who may be the victims of violation of principles of natural justice or any other illegality, in passing of the impugned order are not made to suffer and their interest is protected by grant of interim orders. It is to be remembered that the orders which are challenged before the Karnataka Appellate Tribunal are all quasi judicial orders. The experience has shown that many of these orders are passed in violation of principles of natural justice or contrary to express provisions of law. Therefore, this provision has been enacted consciously, to mitigate the inconvenience and injustice done to such aggrieved persons. 9. The second stage is after admission of the appeal. The respondent after service of notice may enter appearance and contest the appeal or petition on all grounds available to him including the ground of limitation. It is open to him to file objections to the application for condonation of delay. As the question of limitation is kept open at the time of admission, the Tribunal has to consider the question of limitation on merits along with the appeal on merits and pass appropriate orders. If the respondent is able to satisfy that the cause shown for delay in preferring the appeal does not constitute sufficient cause, it is open to the Tribunal to dismiss the appeal as barred by time. 10. Therefore, the aforesaid Regulation provides for admission of appeal filed beyond time keeping Npen the question of limitation.
If the respondent is able to satisfy that the cause shown for delay in preferring the appeal does not constitute sufficient cause, it is open to the Tribunal to dismiss the appeal as barred by time. 10. Therefore, the aforesaid Regulation provides for admission of appeal filed beyond time keeping Npen the question of limitation. When a specific Regulation is made providing for admission of the appeal in the aforesaid manner, the general principles which are applicable either under the provisions of the Code of Civil Procedure or under any other law cannot be pressed into service to decide the rights of the appellants in an appeal filed before the Karnataka Appellate Tribunal. The maintainability of the appeal or petition and its admission, have to be decided strictly in accordance with the Regulations. Therefore, the Karnataka Appellate Tribunal was in total error in refusing to consider the application for stay solely on the ground that until the application for condonation of delay is decided, it has no jurisdiction to entertain the appeal. Accordingly, I pass the following: ORDER (1) Writ petition is allowed. (2) The impugned order is set aside.