G. Narasimhappa vs The Asst. Registrar of Co-operative Societies and Others

M.P. Chandrakantharaj Urs, J.-These two petitions are posted for hearing as they are connected matters.

In writ petition No. 675 of 1985 the petitioner has suffered an award made by an arbitrator in proceedings under Section 70 of the Karnataka Co-operative Societies Act. The Assistant Registrar-arbitrator to whom it was referred decreed the claim of the respondent co-operative Bank. The petitioner in the other writ petition is the co-operative society.

The petitioner who suffered the decree, aggrieved by the award presented an appeal to the Karnataka Appellate Tribunal and the Tribunal has set aside the entire award inter-alia on the ground that the co-operative society could not have maintained the dispute under Section 70 and it would be open to the co-operative society to initiate surcharge proceedings against the petitioner who was appellant before the tribunal and recover the money through such proceedings. Aggrieved by that order the petitioner has challenged the correctness and legality of the view taken by the tribunal.

In the other petition, namely, Writ petition No. 15608 of 1985, the society hay asked for a writ of mandamus to the Assistant Registrar of Co-operative Societies, Hospet, to consider its application under Section 103 of the Karnataka Co-operative Societies Act and dispose of the same as he is duty bound to do so.

Section 103 of the Act provides for nothing more than attachment of property before award or order. In the instant case the award has been passed and if it is executable the executing authority has all the powers under Section 101 and therefore question of directing the attachment before award does not arise and on that ground alone the petition filed by the co-operative society must fail.

Even otherwise a Division Bench of this Court in the case of Gurusangappa v Sangameshwara Primary School Teachers Co-operative Society Ltd., (ILR 1986(2) Karnataka 1095) has affirmed, in no uncertain terms, the view taken by a learned Single Judge of this Court that after the amendment of Sections 69 and 70 of the Act by Act No. 19 of 1976 (brought into effect on 20-1 1976), amounts due by a member of the committee of management whether in terms of Section 69 or otherwise may be recovered either by raising a dispute or initiating surcharge proceedings under Section 69 of the Act. It follows therefrom that if once the cooperative society decides to recover the amount from its ex-president, the petitioner in writ petition 675 of 1985, then they must abide by the award. It was not open to the tribunal to set aside the award on the ground that only surcharge proceedings was the procedure and proceedings under Section 70 of the Act. The dispute itself was raised after the amendment Act came into force and therefore dispute was maintainable and the tribunal was clearly in error in holding otherwise. Therefore, the order of the tribunal must be set aside and the matter remanded to consider the appeal of the petitioner in regard to the amount decreed by the award on merits.

Accordingly rule and is made absolute in writ petition No. 675 of 1985 and Writ Petition No. 15608 of 1985 is dismissed for the reasons I have given, as not maintainable.

Writ petitions dismissed.