Lakshmana Moolya P. vs Deputy Registrar,Co-operative Society

B.S. Patil, J.—This writ petition is filed challenging the order dated 30-9-2013 passed by the Karnataka Appellate Tribunal (for short, ''the Tribunal'') allowing the appeal filed by the 4th respondent herein - Praveen Chandra. The dispute lies in a short compass. Therefore, the matter is taken up for final disposal, particularly, because there is an interim order of stay which operates against the 4th respondent whose election now as Director of the 2nd respondent-Belthangady Primary Co-operative Agricultural and Rural Development Bank, has been held valid.

Petitioner and the 4th respondent contested the election to the Managing Committee of the 2nd respondent-Bank for the period 2010-2011 to 2014-2015. Election was held on 20-3-2010 from the borrowers constituency. 4th respondent was declared as Director of the 2nd respondent-Bank. Election of the 4th respondent was challenged by the petitioner by raising a dispute u/s 70 of the Karnataka Co-operative Societies Act, 1959.

The Deputy Registrar of Co-operative Societies, Mangalore, set aside the election holding that on his own admission 4th respondent was not a borrower and that there was no document to show that he had any property in his name based on which he could have availed the loan. This order dated 25-3-2011 was challenged before the Tribunal in Appeal No. 290 of 2011.

The Tribunal set aside the order passed by the Deputy Registrar and remanded the matter. An observation was made in the course of the order stating that though there was delay of 70 days in challenging the election the Deputy Registrar without condoning the delay had passed the order impugned before the Tribunal. The Tribunal further found that there was no opportunity of cross-examination afforded to the 4th respondent herein.

After remand, the Deputy Registrar again passed an order setting aside the election reiterating the findings that the 4th respondent was not a borrower and that he was not eligible to contest the election from the borrowers constituency. This was again challenged before the Tribunal. The Tribunal, by the impugned order has set aside the order passed by the Deputy Registrar and has dismissed the dispute. Aggrieved by the same, petitioner is before this Court.

Learned Counsel appearing for the petitioner submits that the Tribunal has wrongly brushed aside the admission made by the 4th respondent in his evidence that he had not availed the loan in individual capacity. It is further pointed out by him that no documents were produced by the 4th respondent to show that he owned any property and that he had any share in the property that was mortgaged.

Learned Counsel appearing for the 4th respondent strongly refutes these contentions and takes me through the mortgage deed - Annexure-R3 produced along with statement of objections and the Encumbrance Certificate produced at Annexure-R4. He has also taken me through the findings recorded by the Deputy Registrar that the 4th respondent was A-category member of the Society. In addition, he has contended that though there was delay of 70 days and although the Tribunal while remanding the matter had pointed out that the Deputy Registrar had not condoned the delay, even after remand, without condoning the delay the dispute was allowed illegally.

Having heard the learned Counsel for both parties, I find that the Tribunal has examined the matter in great detail. It has perused the evidence of the 4th respondent including the cross-examination. It has come to the conclusion that his evidence examined in totality would not disclose that he had indeed admitted that he was not at all a borrower. His stand was that he had not borrowed loan independently but was a borrower along with his maternal uncle Nabhiraja Shetty. The Tribunal has refused to attach too much importance to the solitary statement made in the cross-examination wherein the 4th respondent has stated that the loan was not taken personally by him. This appreciation of evidence of the 4th respondent in the light of the documents such as mortgage deed and the Encumbrance Certificate which are produced along with the statement of objections at Annexures-R3 and R4 cannot be characterised as perverse and illegal.

The registered mortgage deed makes it clear that the 4th respondent along with his uncle have mortgaged the property together. In the Encumbrance Certificate, name of the 4th respondent is shown as the person having right over the property along with his uncle. In fact, the 4th respondent has represented his uncle by virtue of the power of attorney executed by him while entering into the loan transaction with the Bank. Thus, he has availed the loan in his dual capacity, namely, as a power of attorney holder of his uncle and in his individual capacity as well. The Tribunal has referred to the stand taken by the Bank in the written statement wherein it has made it clear that the 4th respondent was also a member of the Bank and he had jointly availed the loan along with Nabhiraja Shetty.

Therefore, findings recorded by the Tribunal which are based on appreciation of evidence cannot be interfered with by this Court as they are not shown to be perverse or illegal. In addition, as rightly contended by the learned Counsel for the petitioner though there was delay of 70 days in raising the dispute challenging the election of the 4th respondent, the Deputy Registrar has not condoned the delay either by passing a separate order or in the course of the order impugned before the Tribunal. Thus, it is clear that without condoning the delay, the Deputy Register has embarked upon examination of the merits of the matter that too in an election dispute raised belatedly before him by the defeated candidate. On this ground also, the Tribunal was right and justified in setting aside the order passed by the Deputy Registrar. Hence, I do not find any merit in this writ petition. The same is therefore dismissed.