Benaka Souradha Credit Co-operative Society Ltd. , Rep. by its Secretary, Vijayalakshmi v. The Assistant Garrison Engineer
2010-01-25
A.N.VENUGOPALA GOWDA, MANJULA CHELLUR
body2010
DigiLaw.ai
Judgment :- (This Writ appeal is filed u/S 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition No.19526/2009 (CS-DAS) dated 15.07.2009.) Challenge in this appeal is to the order passed by the learned Single Judge rejecting the writ petition with costs. In the writ petition, the appellant had prayed for issuing a direction to the 1st respondent and compel him to recover the loan amount by attaching the salary of 2nd respondent, as per the attachment warrant issued by a Recovery Officer. 2. Briefly stated, the facts which have led to the filing of the writ petition are as follows: The Appellant is a Co-operative society, registered under the Karnataka Co-operative Societies Act, 1959 (for short ‘the Act’). It had advanced loan to one Smt. Geetha. The 2nd respondent was one of the sureties to the said loan. To realize the loan amount, appellant filed a petition under S.70 of the Act against the loanee and the sureties. An award was passed under S.71, which was put into execution by filing a recovery petition under S.101 of the Act, wherein, the executing authority issued a warrant of attachment of salary in exercise of the power under Rule 37(1) of the Karnataka Cooperative Societies Rules, 1960 (for short ‘the Rules’), directing the 1st respondent to withhold Rs.2,000/- per month from the salary of the 2nd respondent and remit to the society. Alleging that the 1st respondent did not give effect to the salary attachment warrant and discharge the statutory duty under sub-section (2) of S.34 of the Act, the writ petition was filed seeking the said reliefs. 3. Sri. B.S. Nagaraj, learned advocate appearing for the appellant contended that the 2nd respondent has executed the agreement under S.34 of the Act and hence the 1st respondent had a duty to give effect to the salary attachment warrant issued by the Recovery Officer. Since the 1st respondent failed in its duties, the writ petition was filed to direct the 1st respondent to act in accordance with S.34(1) & (2) of the Act, which was not correctly considered by the learned Single Judge and as a result, on a wholly erroneous view of the matter, the writ petition was rejected and hence interference is called for. Learned counsel placed reliance on the decision in the case of K.G. Rajashekara Vs.
Learned counsel placed reliance on the decision in the case of K.G. Rajashekara Vs. The State of Karnataka (ILR 2008 Karnataka 4048). 4. We have perused the writ appeal papers. The point for consideration is: Whether the writ petition is maintainable? 5. Appellant has obtained an award for recovery of Rs.36,069/- along with interest against the 2nd respondent and others. 2nd respondent is employed under the 1st respondent. To recover the award amount, appellant initiated recovery proceedings. The procedure for execution of the awards passed under the Act is provided under Rules 33(A) to 49 of the Rules, 1960. The Recovery Officer, exercising authority under Rule 37(1), issued the salary attachment warrant to the 1st respondent to attach Rs.2,000/- per month from the salary of the 2nd respondent and remit the amount to the society. Alleging that the 1st respondent has not given effect to the salary attachment warrant, the writ petition is filed to direct the 1st respondent to give effect to the salary attachment warrant. 6. In the case of Rajashekara (supra), the contention raised was that, when once an award under S.70 of the Act is obtained, the society cannot invoke S.34 of the Act. Negativing the contention, it was held that, there is no prohibition for a creditor to invoke S.34(1) and (2), eventhough an award is obtained against the judgment debtor. The ratio of the decision has no application to the point which has arisen for consideration in this appeal. 7. Provision contained under S.109 of the Act is relating to the offences and penalties. Sub-section (4) thereunder is with regard to the offence by the employer who without sufficient cause fails to make the deduction under sub-section (2) of S.34, or fails to pay to cooperative society the amount deducted, within a period of fourteen days from the date on which such deduction is made. An offence thereunder is punishable with imprisonment or with fine. If the 1st respondent, without sufficient cause has failed to deduct from the salary of 2nd respondent the amount in terms of the attachment warrant, the 1st respondent can be prosecuted before the jurisdictional Court, which can penalize him for the offence under sub-section (4) of S.109 of the Act. 8.
If the 1st respondent, without sufficient cause has failed to deduct from the salary of 2nd respondent the amount in terms of the attachment warrant, the 1st respondent can be prosecuted before the jurisdictional Court, which can penalize him for the offence under sub-section (4) of S.109 of the Act. 8. Thus, it is clear that the statute itself provides for a just procedure as a remedy in case of failure to give effect to an award or a decision or order made under the Act and the Rules. It is well settled position of law that, if the Act provides for a thing to be done in a particular manner, then, it has to be done in that manner alone and not otherwise. Sub-section (4) of S.109 of the Act enables the society to prosecute the defaulter for the offence committed. Such power has been conferred by the Legislature with an object that the orders passed under the Act and Rules are obeyed and if breached, should be dealt with in the manner provided under the Act itself. 9. It is appropriate in this connection to notice the decision in the case of K. Jagdish Ponraj & Others Vs. A. Muniraju & Others, reported in 2009 (1) KCCR 521 (DB) wherein it has been held as follows: “9. The provision under Order 39 Rule 2A(1) relates to the consequence of disobedience or breach of injunction. The remedy available in case of disobedience or breach of injunction is provided therein itself, which in our view, has been made to provide a speedy inexpensive and effective forum and to avoid multiplicity of litigation before different forums. The Legislative policies and intendment should necessarily weigh with us in giving meaningful interpretation to the provision”. (Emphasis supplied) 10. In the case of Thansingh Nathmal & Others Vs. The Superintendent of Taxes, Dhubri & Others, AIR 1964 SC 1419 , the Constitutional Bench of the Hon’ble Supreme Court, with regard to the impressibility of by –passing of statutory remedy, has held as follows: “The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so.
But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Report to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up”. (Emphasis supplied by us) 11. In the instant case, the appellant has obtained the salary attachment warrant. If the same has not been given effect to, 1st respondent can be penalized, in the manner provided under sub-section (4) of S.109 of the Act. A writ petition cannot be entertained to direct the 1st respondent to give effect to an attachment warrant passed by a Recovery Officer. That would certainly avoid multiplicity of litigation before different forums. The Recovery Officer or the appellant, can secure the enforcement of salary attachment warrant by initiating the penalty proceedings as noticed supra. Hence, in our considered opinion, the writ petition is not maintainable and the appellant in the ordinary circumstances has to have recourse to the provision contained under S.109 of the Act. 12.
The Recovery Officer or the appellant, can secure the enforcement of salary attachment warrant by initiating the penalty proceedings as noticed supra. Hence, in our considered opinion, the writ petition is not maintainable and the appellant in the ordinary circumstances has to have recourse to the provision contained under S.109 of the Act. 12. Since we do not find any exceptional case having made out by the appellant pointing out that, the statutory remedy provided under Sub-section (4) of S.109 of the Act is not efficacious to deal with the situation, we do not find any error having been committed by the learned Single Judge in rejecting the petition on the ground that, the appellant cannot convert the writ court into an executing court to execute the salary attachment warrant issued by the Recovery Officer. Appellant cannot bye-pass the alternate remedy prescribed in the Act. Hence, the learned Single Judge is justified in rejecting the writ petition. 13. However, the imposing of cost of Rs.2,000/-, when the writ petition is being rejected at the preliminary hearing stage, does not appear to be correct. We set aside only that part of the impugned order. In the result, subject to the said modification, the writ appeal lacks merit and shall stand dismissed. Ordered accordingly.