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2013 DIGILAW 1174 (KAR)

A. Shambandhan v. Mysore Merchants Co-operative Bank Limited, Mysore

2013-10-01

B.S.PATIL

body2013
ORDER B.S. Patil, J. Petitioner is calling in question the order dated 10.05.2013 passed by the Karnataka Appellate Tribunal (for short, 'the Tribunal') dismissing the appeal filed by him in Appeal No.101/2013 produced at Annexure-A. 2. Petitioner borrowed loan from the 1st respondent. As he was a defaulter, a dispute was raised by the 1st respondent-bank under Section 70 of the Karnataka Co-operative Societies Act, 1959. An award was passed by the Arbitrator on 15.06.2001. Aggrieved by the same, petitioner filed an appeal before the Tribunal, which was allowed on 16.06.2008 and the matter was remanded for fresh consideration to the arbitrator. In the meanwhile, the bank initiated proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the Act'), and the property was brought for sale. The sale of the mortgaged property was conducted on 26.03.2005. 3. Petitioner challenged the sale in W.P. No. 11075/2006 before this Court, which came to be dismissed on 24.04.2005. Petitioner has lost before the Debts Recovery Tribunal also. After remand, the Deputy Registrar of Co-operative Societies disposed of the proceedings vide his order dated 22.01.2013 recording the fact that the loan amount had been fully recovered and the dispute did not survive for consideration. This order was again challenged before the Tribunal by filing the present appeal No.101/2013. This appeal came up for consideration before the Single Member of the Tribunal on 10.05.2013. The Single Member of the Tribunal has dismissed the appeal as not maintainable on the ground that the amount payable to the bank had been fully realized by sale of the mortgaged property in terms of the provisions of the Act and therefore, it was wholly unnecessary to entertain the appeal. Aggrieved by this order, the present writ petition is filed. 4. The main contention urged by the learned Counsel for the petitioner is, that as per Section 6(2) of the of the Karnataka Appellate Tribunal Act, 1976, read with Regulation 34 of the Karnataka Appellate Tribunal Regulations, 1979, the question regarding maintainability of appeal before the Tribunal was required to be examined by a bench of two members of whom one shall be a District Judge and that a single member of the Tribunal cannot dismiss the appeal presented before him on the ground that it was not maintainable. 5. 5. Learned Additional Government Advocate makes available the order issued by the Chairman of the Tribunal on 10.05.2002, to contend that in exercise of the powers conferred under Section 6(2) of the Karnataka Appellate Tribunal Act, 1976, the Chairman has issued an order making it clear that a Single Member of the Tribunal can reject the defective appeals presented. 6. On careful perusal of the provisions contained under Section 6(2) of the KAT Act, it is clear that a Single Member of the Tribunal can exercise the powers of the Tribunal in respect of the following matters: (i) admission of an appeal or revision petition; (ii) admission of an appeal or revision petition presented after the expiry of the period allowed by law; (iii) stay orders pending disposal of an appeal, revision, reference or other proceedings; (iv) any matter of an interlocutory character in appeals, revisions, references or other proceedings; (v) such other matters and subject to such conditions as may be prescribed. 7. Sub-section (1) of Section 6 of the KAT Act makes it clear that the powers of the Tribunal in all matters relating to appeals, revisions and other proceedings shall subject to the provisions of sub-sections (2) & (3) be exercised by a Bench of two members, of whom, one shall be a District Judge. In sub-section (3) of Section 6, it is made clear that the Bench hearing any matter relating to the Department of Co-operation, shall consist of District Judge and a Co-operation member. Sub-section (2) of Section 6 is made subject to any special or general orders that may be issued in this behalf by the Chairman, which may authorize a single member to exercise the powers of the Tribunal. In exercise of his power, the Chairman has issued an order dated 10.05.2002 clothing the Single Member with the power to reject the appeal or a proceeding filed with defects. 8. Regulation 34 of the KAT Regulations, 1979, read as under: "34. The hearing of an appeal or petition shall generally be on the entire case. However the Bench may direct the parties to address arguments in regard to limitation, maintainability or such other grounds when it considers that the matter can be disposed of on such grounds only." 9. 8. Regulation 34 of the KAT Regulations, 1979, read as under: "34. The hearing of an appeal or petition shall generally be on the entire case. However the Bench may direct the parties to address arguments in regard to limitation, maintainability or such other grounds when it considers that the matter can be disposed of on such grounds only." 9. A conjoint reading of the provisions under Section 6(2) of the KAT Act and Regulation 34 of the KAT Regulations and the order dated 10.05.2002 of the Chairman makes it clear that a Single Member of the Tribunal is not clothed with the power to dismiss the appeal holding that the same was not maintainable. The order issued by the Chairman on 10.05.2002 makes it clear that a Single Member can reject defective appeals presented. The defective appeals presented cannot be interpreted to include dismissal of the appeal holding that they were not maintainable. The question whether an appeal is not maintainable or not, depends on several facts including in certain cases interpretation of certain legal provisions. 10. In the instant case, it is apparent that the appeal is filed before the Tribunal challenging the order passed by the Deputy Registrar of Cooperative Societies. The same is maintainable. The question whether the appeal could be entertained because of parallel proceedings which had been initiated by the bank invoking the provisions of the Securitisation Act resulting in the sale of mortgaged property does not lie in the realm of maintainability of the appeal. It is, rather, in the realm of the usefulness of consideration of such appeal. The question would be whether the appeal had been rendered infructuous or that what would be the effect of the judgment to be rendered by the Tribunal, in case the appellant succeeds. In other words whether any effective relief could be granted to the appellant-petitioner herein. The said question is a larger question which has to be considered while examining the merits of the matter. 11. As per the order issued by the Chairman of the Tribunal, the Single Member is not clothed with the power to decide such question. Section 6(2) of the Appellate Tribunal Act does not enable him to examine such aspect of the matter. 11. As per the order issued by the Chairman of the Tribunal, the Single Member is not clothed with the power to decide such question. Section 6(2) of the Appellate Tribunal Act does not enable him to examine such aspect of the matter. Therefore, the Counsel for the petitioner is right and justified in contending that the dismissal of the present appeal by the Single Member is not in accordance with the provisions of the Act. Therefore, the order passed by the Single Member of the Tribunal deserves to be set aside. 12. Accordingly this writ petition is allowed. The impugned order is set aside. The matter is remanded to the Tribunal with a direction to hear afresh by a bench consisting of two members. Writ Petition is allowed.