WP/26840/2008 of Lopinti Venkata Srinivasu , Srinivasu (Hindu) Vs The Deputy Registrar of Co-operative Societies on 30 December 2015

Conclusion

ORDER:

Heard learned counsel Ms. G. Sindhu, representing on behalfof Sri K. Chidambaram, learned counsel for the petitioners.

The Writ Petition is filed questioning the auction notice dated31.10.2008 issued by the 1[st] respondent-Deputy Registrar ofCooperative Societies, Bhimavaram, proposing to auction the houseproperty in 60 Sq.Yards of site situated in H.No.45-3-28, AssignmentNo.13119 of Velamagudem Village, Palakol Municipal Area of WestGodavari District, for recovery of Rs.2,19,591/-.

It is the case of the petitioners that the 1[st] petitioner is son andpetitioners 2 and 3 are the daughters of one late Ganeswara Rao. Late Ganeswara Rao alleged to have borrowed a sum of Rs.50,000/-from the 2[nd] respondent-Bank vide Loan No.4292, dated 09.12.1997by mortgaging the property in question and as he failed to pay thesaid amount an Award No.222 of 2000-2001 was made under Section71 of the Cooperative Societies Act (in short “the Act”) on25.04.2001, for a sum of Rs.2,06,194/-. It is the contention of thepetitioners that at the time when the mortgage was made thepetitioners were minors and as a matter of fact petitioners’ father hadonly 1/5[th] share in the property on account of the registered partitiondeed No.2546/1987, dated 22.07.1987, and the property is ancestralproperty, and the petitioners themselves are the shareholders in theproperty. In that view of the matter, even assuming the petitioners’father had borrowed money, he could not have mortgaged the entireproperty for the loan as petitioners’ father has only 1/5[th] share in thesaid property. Learned counsel for the petitioners also submits that O.S.No.397 of 1998 was filed by one P. Antharvedi against theirfather and a decree came to be passed in the said suit and inE.P.No.75 of 1999 the property was sought to be brought on sale andthe attachment was ordered, thereafter, they filed a claim petition inE.A.No.5 of 2000 basing on the partition deed and the E.P. wasstalled and the property was not brought to sale by the Junior CivilJudge, Palakollu by raising the attachment. Raising these groundslearned counsel urged that the auction notice may be set aside anddeclare that the respondents do not have any right to auction theproperty.

Sri Polisetti Radha Krishna, learned counsel appearing for therespondent-bank by making a reference to the counter affidavit wouldsubmit that the petitioners’ father borrowed a amount of Rs.50,000/-on 09.12.1997 and executed a bond to pay said sum in 35instalments with interest as applicable. The petitioners’ father beingnatural guardian had executed mortgage bond on behalf of thepetitioners as a whole and as such the mortgaged bond executed bythe petitioners’ father is valid. As a matter of fact, petitionersthemselves on attaining the majority have acknowledged the debtdue to the Bank, therefore, the 2[nd] respondent has every right totake appropriate legal remedies against the petitioners and proceedagainst the schedule property on which the respondent-bank has gotfirst charge by virtue of mortgage bond No.4522/97, dated02.12.1997. Further, he submitted that the auction which wasproposed through the impugned notice was not conducted and evenas on date the execution proceedings have not been proceeded.

Having considered the rival submissions, I am unable topersuaded with the arguments of the learned counsel for thepetitioners on account of the fact that the petitioners being minors at

a relevant point of time the bank cannot proceed against themortgage property. Even assuming that the petitioners have anyindependent right in the property by virtue of the partition deed dated22.07.1983, it is for them to make a claim before the authorisedofficer / sale officer under Rule 52 of the A.P. Cooperative Rules,which is self-contained code to consider the objections of the naturewhich the petitioners seek to raise in the present writ petition. Butthe petitioners have directly approached this Court without availingthe opportunity provided under the Act. Allowing of the petitioners’claim petition in E.A.No.5 of 2000 has also no relevance except tothe extent that the petitioners have independent interest in theproperty. Further, the petitioners, after attaining the majority, did notchoose to assert their right within the time prescribed, by questioningthe mortgage made by their father. It is not being disputed that theAward dated 25.04.2001 was made in exercise of the statutory powerunder Section 71 of the Act. In that view of the matter, there are nomerits in the writ petition. However, considering the fact that thevery auction, proposed to be conducted, has not been conducted, thewrit petition is disposed of by giving liberty to the petitioners to raiseall their contentions, including the one which they raised in thepresent writ petition, before the sale officer under Rule 52 of theCooperative Societies Rules. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.

Date:30.12.2015Ssv

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JUSTICE CHALLA KODANDA RAM