S VARALAKSHMI Vs. DISTRICT COOPERATIVE OFFICE

JUDGEMENT

(1.) The petitioner is the wife of one Satyanarayana. It appears, the third respondent availed a loan in an amount of Rs.3,50,000/- from the second respondent for the purpose of dairy business. The petitioner's husband mortgaged the property being a residential house to secure the loan. There was a default in payment of the loan amount. The second respondent bank which is a co-operative bank, governed by the A.P. Mutually Aided Co-operative Societies Act,1995 (for short 'A.P.MAC Act'), filed original petition being O.P.No.8 of 2000 under Section 37 of the said Act before the A.P. Co-operative Tribunal, Hyderabad (hereafter called 'the Tribunal') for recovery of the loan. The said O.P. was filed against the petitioner's husband, her son and herself. Even after receipt of the notice, the petitioner and others did not appear before the Tribunal. Therefore, the Tribunal passed an order directing the third respondent and the petitioner herein to pay a sum of Rs.15,17,641/- together with interest at 6% from the date of the said Award. The Award dated 26-8-2000 became final. After obtaining the order/award of the Tribunal, the second respondent approached the first respondent for executing the award in O.P.No.8 of 2000. But, by a demand notice dated 16-7-2003 the first respondent called upon the petitioner and others to pay an amount of Rs.6,96,143/- with interest at 23% from 1-4-2003 within ten days. The petitioner was also informed that if she fails to pay the amount in execution of the award, the property will be attached. As there was no compliance with the demand notice, dated 16-7-2003, the first respondent issued the notice prior to sale of mortgaged immovable property in Form No.6 under Rule 52(11)(b) and (c) of the A.P. Co-operative Societies Rules, 1964, ('the Rules') calling upon the petitioner to pay an amount of Rs.6,33,172/- with interest at 23% per annum from 1-7-2003. This notice also informs the petitioner and others that if the advice is not heeded, the property mortgaged shall be attached and sold. This notice is challenged in this writ petition. Learned counsel for the petitioner, Sri Y.Srinivasa Reddy, submits that even before receiving the demand notice, the petitioner submitted a representation on 24-5-2003 and without considering the same, the impugned notice was passed. He nextly contends that when the award was passed by the Tribunal under Section 37 of the A.P. MAC Act, resort to execution procedure under Section 70 of the A.P. Co-operative Societies Act, 1964 (' the 1964 Act') read with Rule 52 of the Rules is without jurisdiction. He lastly would contend that the award was passed by the Tribunal for an amount of Rs.3,72,341/- whereas the amount sought to be recovered in execution is Rs.6,31,172/-, which is at variance with the award/decree and, therefore, that cannot be treated as award. He placed reliance on the judgment of the Supreme Court in Rameswar Das Gupta v. State of U.P.1. Before dealing with the question of jurisdiction, the two contentions raised need to be disposed of. The submission that the decree is at variance with the original award cannot be accepted. An award was passed for an amount of Rs.3,75,341/- with future interest at 6% per annum till the date of realization. The award was passed on 26-8-2000. Therefore, there cannot be any surprise if the award amount goes up by another about Rs.3 lakhs. Even if the petitioner has any grievance about the amounts sought to be realized in execution, nothing prevents him to make an application under sub-rule (21) of Rule 52 of the Rules raising this point with a request to properly calculate the amount payable by him. The remedy before this Court cannot be proper to adjudicate this issue. Secondly, the submission that the petitioner's representation was not considered and, therefore, the award cannot be executed in law, is stated only to be rejected. In the application dated 24-5-2003 while raising dispute as to the amount payable by the petitioner to the second respondent bank she requested for waiver of the entire interest component. The counsel for the petitioner did not bring to the notice of this Court any provision of law which enables the first respondent to waive the interest. If the petitioner is aggrieved on this score, she ought to have challenged the award passed by the Tribunal before proper forum. Having not done so, she cannot be heard to say that her representation was not disposed of. For that reason alone, the action initiated by the first respondent cannot be held to be illegal. Learned counsel for the petitioner, Sri Y.Srinivasa Reddy, vehemently contended that no appeal would lie in relation to the execution taken up by the Registrar under Section 70 of the 1964 Act read with the Rules. The question is no more res integra and covered by a judgment delivered by me. In A.Vema Naidu v. Erracheruvupalle Primary Co-operative Society, Chittoor2, after obtaining recovery certificate under Section 71 of the 1964 Act, Erracheruvuripalle PACS initiated execution in accordance with Section 70 read with Rule 52 of the Rules. Those notices were challenged before this Court. A contention was raised that there is no effective efficacious alternative remedy under the 1964 Act to challenge the execution proceedings pursuant to a recovery certificate issued by the Registrar either under Section 71 or under Section 101 of the 1964 Act and/or pursuant to an award passed by the arbitrator (jurisdictional Registrar of Co-op.Societies) under Section 61 of the 1964 Act. After referring to the relevant provisions of the 1964 Act, especially sub-section (2) of Section 70 of the 1964 Act and the Rules as well as the decisions of the Supreme Court in Carl Still G.M.B.H. v. State of Bihar3 and Whirlpool Corporation v. Registrar of Trade Marks, Mumbai4, I have laid down as under.

(2.) It provides for constitution of Co-operative Tribunal and Section 76 of the Act provides that any person aggrieved by any decision passed or order made under various provisions of the Act, inter alia, may file appeal to the Tribunal. An order for execution of a certificate of recovery under Section 71 of the Act and auction notice consequent thereto can only be under Section 70(2) of the Act read with sub-rule (11) of Rule 52 of the Rules. Therefore, the impugned action is clearly appealable under Section 76 of the Act. A reference may be made to Section 76(1) of the Act which reads as under. 76(1). Any person or society aggrieved by any decision passed or order made under Section 6, Section 9A, Section 9B, Section 9C, Section 12A, Section 13, Section 15A, Section 16, Section 17, Section 19, Section 21, Section 21A, Section 21AA, Section 23, sub-section (3) of Section 32, Section 34, Section 34A, Section 60, Section 62, Section 64, Section 66, Section 70, Section 71, Section 73 and Section 117 may appeal to the Tribunal: Provided that nothing in this sub-section shall apply to any order of withdrawal or transfer of a dispute under sub-section (3) of Section 62. It is well-settled that ordinarily when there is effective alternative remedy provided by Statute especially by a Statutory Tribunal duly constituted under the Act, this Court ordinarily does not entertain the writ petition at the initial stages. This Rule, is no doubt, has certain exceptions like, blatant violation of law and rules, violation of principles of natural justice and in cases where the very provision of Statute itself is questioned. {See Whirlpool Corporation V. Registrar Of Trade Marks, Mumbai (1998) 8 SCC 1 = AIR 1999 SC 22}. In the case on hand, none of these things exist. In my considered opinion, there are disputed questions of fact, which require evidence to be adduced by both the parties. The learned counsel for the petitioner, however, lastly submits that auction in one case is scheduled to be held on 22-6-2002 and in another case on 24-6-2002. Pending the appeal before the Cooperative Tribunal that may be filed by the petitioner the Court may stay the auction. Having regard to the provisions of Section 76(6) of the Act read with Rule 11 of the Cooperative Tribunal Appeal Provision Rules, 1994 the request of the petitioner cannot be accepted. There are adequate powers conferred. It is well-settled that when an enactment creates a Statutory Tribunal and entrusts certain matters to be agitated by way of appeal at the first instance and also confers adequate incidental and supplemental powers to stay and suspend the orders, it is not for this Court to interdict the process of the law, in accordance to which, the properties of the petitioner are brought to sale. In view of the above decision, it must be held that the petitioner has an effective alternative remedy and the two issues adverted to hereinabove cannot be gone into at this stage by this Court.

(3.) The submission of the learned counsel for the petitioner that the procedure contemplated under Section 37 of the AP MAC Act is altogether different and, therefore, the procedure for execution of awards/recovery certificates passed under the 1964 Act under Section 71 and Rule 52 of the Rules cannot be followed, is without any basis. The learned counsel submitted that though the provisions of the 1964 Act have been made part of the AP MAC Act by incorporation, when an award is passed under Section 37 by the Tribunal, the same cannot be executed under the 1964 Act. This submission is devoid of any merit. Sections 36 and 37 of the AP MAC Act read as under.