IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 10281 of 2007 Between: Mr.Kaza Subramanya Sastry, s/o late Mr.K.R.K.Murthy, r/o H.No.24-138/10, Anand Bagh, Malkajgiri, Hyderabad-500 047. ..... PETITIONER AND 1 LIC HOusing Finance Ltd., 3rd Floor, Mytrivanam (Huda) Ameerpet, Hyderabad represented by its Authorised Officer Sri P.Anil Kumar, s/o P.Narsing Rao, r/o Hyderabad. 2 Smt.R.Ramadevi, H.No.1-1-336/71, Vivekanagar, Chikkadpally, Secunderabad. 3 Sri R.V.S.Chandrasekhara Rao, s/o Mr.R.Subba Rao, H.No.1-1-336/71, Vivekanagar, Chikkadpally, Secunderabad. 4 LIC Housing Finance Limited, represented by its Managing Director, 3rd Floor, Mytrivanam (Huda), Ameerpet, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ or order or direction more particularly one in the nature of writ of mandamus declaring the proceedings in Crl.M.P.No.26 of 2007 on the file of Chief Metropolitan Magistrate, Cyberabad filed by R1 in respect of the residential building D.No.No.24-91/2 (Old) H.No.24- 138/10 (new) situated at Anandbagh, Malkajgiri, Ranga Reddy District bounded by East:Neighbour, North:45 ft.wide South:Neighbour house and West:Neighbours house of thepetitioner being the violative of principles of natural justice and violative of Articles 14, 21 and 300(A) of the Constitution of India and pass such further or other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.VENKATA RANGADAS KANURI Counsel for the Respondent No.: MR.S.SIVA SHANKER WRIT PETITION NO : 17239 of 2004 Between: Khaza Subramanyam Shastry, s/o late K.R.K.Shastry, r/o H.No.24-138/10, Anandbagh, Malakajgiri, Hyderabad. ..... PETITIONER AND 1 The Registrar and Commissioner, Co.operative Societies, M.J.Road, Hyderabad. 2 The Arbitrator/Divisional Co.operative Officer, Golkonda Division, M.J.Road, Hyderabad. 3 G.Bhikshapathi, Sri Bharathi Co.operative Urban Bank Limited, Street No.5, Himayathnagar, Hyderabad. 4 Sri Bharathi Co.operative Urban Bank Limited, Street No.5, Himayath Nagar, Hyderabad-29, rep., by CEO or his nominee 5 Mr.R.V.S.Chandra Sekhar, s/o R.Subba Rao, D.No.1-1-336/71, Viveknagar, Chikkadapally, Hyderabad. 6 Deputy Registrar of Co.operative Societies/Divisional Co.operative Officer/Golkonda Division, Hyderabad. 7 The Chairman, A.P.Co.operative Tribunal, Chandravihar Complex, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to call for the records and issue a writ or order or direction more particularly one in the nature of writ of certiorari and quash the impugned order of the 7th respondent dt.21-9-2004 passed in I.A.No.758/2004 being illegal, arbitrary and violative of the principles of natural justice and consequently direct the 7th respondent to entertain the appeal of the petitioner in C.T.A.Sr.No.3511/2004 Counsel for the Petitioner: MR.VENKATA RANGADAS KANURI Counsel for the Respondent No.: GP FOR COOPERATION WRIT PETITION NO : 16101 of 2005 Between: Mr. Kaza Suramanya Sastry, S/o. K.R.K. Murthy, R/o. H.No.24-138/10, Anandag, malkajgiri, Hyderabd - 500 047. ..... PETITIONER AND 1 The Co-Operative Sub-Registrar/Sub Divisional Co-Op- Officer/Arbitrator, Office of the Divisional Co-Opertive-Officer, Golkonda Division, Hyderabad. 2 Sri Bharathi Co-Operative Urban Bank Ltd., Street No.5, Himayath Nagar, Hyderabad-29, rep. by CEO or his Nominee. 3 Mr. R.V.S. Chandra Sekhar, D.No.1-1-336/71, Viveknagar, Chikkadpally, Hyderabad. 4 Mr. K.B.Siva Kumar, S/o.K.R.K. Murthy, R/o. 24-138/10/4, Anandhabagh, Malkajgiri, R.R.District. 5 Mr. K.V. Ramana Babu, S/o. K.R.K. Murthy, R/o. 24-138/10/1, Anandabagh, malkajgiri, R.R.District. 6 Union of India, rep. by its Secretary Ministry of - Economic Affairs, New Delhi. 7 State of A.P., rep. by its Secretary Department of Co- Operation, Secretariat, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of Mandamus, declaring, that the award dt. 20.7.2002 of the 1st respondent issued under Section 62(4) of the A.P.Co-Operative societies Act 7 of 1964 in A.R.c.No.134/2002 - C.U.V/G.D is illegal, arbitrary, is patently and inherently without jurisdiction, null, void and inoperative and consequently declare that all the consequential proceedings pursuant to the award dt. 20.7.2002 in a.R.C.No.134/2002-CUV/GD are null and void and pass. Counsel for the Petitioner: MR.VENKATA RANGADAS KANURI Counsel for the Respondent No.: GP FOR COOPERATION The Court made the following : COMMON ORDER: 1. The dispute in these three writ petitions is in respect of house bearing No.24-91/2(old) 24-138/10 (new) situated at Anandbagh, Malkajgiri, Hyderabad. 2. The background facts in nutshell leading to filing of these three writ petitions by Kaza Subrahmanya Sastry are: Kaza Subrahmanya Sastry availed a loan of Rs.3,50,000/- from Sri Bharathi Cooperative Urban Bank Limited, Himayathnagar, Hyderabad. B.Shiva Kumar, K.V.Ramana Babu and R.V. Chandrasekhar stood as co- obligants to the loan availed by Kaza Subrahmanya Sastry. B.Shiva Kumar is owner of house bearing No.26/170/43 admeasuring 222 square yards situated in Safilguda, Malkajgiri, Hyderabad. Whereas Kaza Subrahmanya Sastry is the owner of the house bearing No.24-91/2 (old) 24-138/10 (new) situated at Anandbagh, Malkajgiri, hyderabad admeasuring 222 square yards. Kaza Subrahmanya Sastry committed default in repayment of the loan amount. Sri Bharathi Cooperative Urban Bank Limited initiated proceedings under section 61 of APCS Act 7 of 1964 for recovery of loan amount of Rs.4,92,566/- with interest thereon. The Arbitrator passed an award on 20.7.2002 u/s 62(4) of APCS Act 7 of 1964. In realization of the award amount, Senior Inspector and Sales Officer conducted the sale of house bearing No.24-91/2 (old) 24-138/10 (new) situated at Anandbagh, Malkajgiri, Hyderabad owned by Kaza Subrahmanya Sastry. Before confirmation of sale, Kaza Subrahmanya Sastry filed Claim Petition No.2 of 2003 in E.P.No.320 of 2003 on the file of Deputy Registrar of Cooperative Societies, Golconda Division, Hyderabad under rule 52(14)(1) of A.P. Cooperative Societies Rules, 1964 to set aside the sale conducted on 27.10.2003. He challenged the sale on the ground of material irregularity, mistake and fraud both in publishing and conducting the sale. The claim application filed by Kaza Subrahmanya Sastry ended in dismissal on 31.12.2003. The relevant portion of the order passed in the claim petition reads as under: “ …Though all the notices were acknowledged by the petitioner, he failed to repay the amount due to the bank as demanded. The auction record of the 1st respondent shows that the auction held on 27.10.2003 is in accordance with the provisions of APCS Rules 1964 in respect of house property bearing No.24-91/2 (old) 24-138/10 (new) situated at Anandbagh, Malkajgiri, Hyderabad belonging to the petitioner herein i.e. the principal borrower of the bank and tht the market value assitance report dt.16.10.2003 manifests the value of the subject property as Rs.7,91,856/- hence the allegation of under sale is not tenable. The other allegation of the petitioner that the 4th respondent is a guarantor to the loan availed by him and got the property sold and that he himself purchased the property is not tenable since on perusal of the record of the bank it is crystal clear that the 4th respondent has not stood as guarantor/surety to the loan availed by the petitioner. In view of the above discussion the claim petition filed by the petitioner is dismissed.” Matter did not rest there. The auction purchaser viz., R.V. Chandrasekhar Rao raised loan from LIC Housing Finance Limited by offering the property purchased by him in the auction as a security. He committed default in payment of loan. Thereupon, LIC Housing Finance Limited initiated proceedings under the provisions of Securitisation Act, 2002. The LIC Housing Finance Limited approached the Chief Metropolitan Magistrate, Hyderabad for assistance in taking possession of the secured asset under section 14 of the Act. The learned Chief Metropolitan Magistrate took the petition on file as Crl.M.P.No.26 of 2007 and proceeded to appoint an Advocate Commissioner to take possession of the property and handover the same to LIC Housing Finance Limited. 3. Kaza Subrahmanya Sastry filed W.P.No.10281 of 2007 assailing the order-dated 2.5.2007 passed by the Chief Metropolitan Magistrate in Crl.M.P.No.26 of 2007. He also filed an appeal before the A.P. Cooperative Tribunal, Hyderabad assailing the award passed by the Arbitrator. Since there was delay in filing the appeal he moved an application being I.A.No.758 of 2004 under section 76(3) of APCS Act, 1964 to condone the delay of 64 days. The Cooperative Tribunal, on considering the material brought on record and on hearing learned counsel for the parties did not find any valid ground to condone the delay in filing the appeal and thereby proceeded to dismiss the delay condonation petition by an order dated 21.9.2004. I deem it appropriate to refer the relevant portion of the order passed by the Cooperative Tribunal, which reads as under: “ It is undisputed fact that after the sale auction the brothers of petitioner filed claim petition claiming as joint property and same petition was dismissed before confirmation of sale. Therefore, the petitioner is having knowledge about the dismissal of claim petition filed by his brothers and also knowledge about confirmation of sale. As the petitioner has failed to file the medical prescriptions or medical certificate in support to his ill health during the proposed delay days, it is not proper to believe that the petitioner was suffering with ill health during the proposed delay period. Hence, there is no justifiable ground to condone the proposed delay. In the result, this petition is dismissed. No costs.” Assailing the order passed in I.A.no.758 of 2000, he filed W.P.No.17239 of 2004. 4. Kaza Subrahmanya Sastry filed W.P.No.16101 of 2005 questioning the very award passed by the Arbitrator. Thus, the petitioner in all the three writ petitions is one and the same. At the cost of repetition, I may state that Kaza Subrahmanya Sastry is the owner of house bearing No.24-91/2 (old) 24-138/10 (new) situated at Anandbagh, Malkajgiri, Hyderabad and the same property is put to auction for realization of the award amount and in the said auction R.V.S.Chandrasekhar Rao purchased the property and sale in his favour came to be confirmed. 5. For the sake of convenience the parties are hereinafter referred to as they are arrayed in W.P.No.16101 of 2005. 6. The petitioner is the borrower having availed a loan of Rs.3,50,000/- from R2-Bank. R2 initiated proceedings under section 61 of APCS Act 7 of 1964 for recovery of the amount from the petitioner. The arbitrator passed an award on 20.7.2002 under section 62(4) of A.P.C.S. Act 7 of 1964 for Rs.4,92,566/- together with interest from 1.1.2002 till the date of realization of the entire amount. The relevant portion of the award reads as under: “ Under Section 62(4) of the APCS Act 7 of 1964 an Award is hereby issued for recovery of an amount of Rs.492566/- together with interest from 1.1.2002 till the realization of the entire loan amount. The defendant has failed to repay the said amount by 30.9.2002 . The movable and immovable properties may be attached to recover the suit amount.” 7. The petitioner assailed the award passed by the Arbitrator on the following grounds: Firstly, the arbitrator has no jurisdiction to adjudicate the claim and that it is the Debt Recovery Tribunal, which has jurisdiction to adjudicate claim of Sri Bharathi Cooperative Urban Bank Ltd. Secondly, R2-Bank obtained the award by playing fraud and misrepresentation. In view of the Supreme Court Judgment in GREATER BOMBAY COOP. BANK LTD. v. UNITED YARN TAX (P) LTD.[1] wherein it has been held that Cooperative Banks established under State Cooperative Societies Act or the Multi State Cooperative Societies Act, 2002, transacting the business of banking, do not fall within the meaning of ‘banking company’ as defined in Section 5[c] of the Banking Regulation Act, 1949 and therefore, the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, are not applicable to the recovery of debts dues by the cooperatives from their members, the first ground urged by the petitioners is liable to be rejected. 8. Learned counsel appearing for the petitioner submits that R2-Bank initiated proceedings under section 61 of APCS Act 7 of 1964 before the arbitrator against the petitioner and three others, but the arbitrator passed an award against the petitioner alone which is contrary to the pleadings of R2-Bank. In a way, he submits that R2 bank claimed an award against the mortgaged property and whereas the arbitrator proceeded to pass an award against the property which is not mortgaged. In support of his submissions, he placed reliance on the decision of Supreme Court in S.P.CHENGALVARAYA NAIDU V. JAGANNATH[2], wherein the Supreme Court held that a litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the court as well as on the opposite party. It is further held that a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. He further submits that since the loan availed by the petitioner from R2-bank has been secured by mortgage of title deeds in respect of immovable property, the R2-Bank has to proceed against the mortgaged property. In support of his submission, reliance has been placed on the decision of the Supreme Court in UNION BANK OF INDIA V. MANKU NARAYANA[3], wherein it has been held that the decree in execution is a composite decree, personally against the defendants and also against the mortgaged property, the decree holder has to proceed against the mortgaged property first and then proceed against the guarantor. Coming to the facts of the case on hand, the award is very clear that the decree is not against the property and it is a decree against the petitioner in person which can be executed either against the petitioner in person or against his property. Therefore, the cited decision ha no application in the facts and circumstances of this case. Even otherwise the proposition of law laid down in the cited case is no more good law in view of the Supreme Court decision in STATE BANK OF INDIA V. MS.INDEX PORT REGISTERED AND OTHERS[4] wherein it has been held as follows: “ 22. THE decree for money is a simple decree against the judgment- debtors including the guarantor and in no way subject to the execution of the mortgage decree agains the judgment-debtor No. 2. If on principle a guarantor could be sued without even the principal debtor there is no reason, even if the decretal amount is covered by the mortgaged decree, to force the decree-holder to proceed against the mortgaged property first and then to proceed against the guarantor. It appears the above quoted observations in Manku Narayana's case (AIR 1987 SC 1078) (supra) are not based on any established principle of law and/ or reasons, and in fact, are contrary to law. It, of course, depends on the facts of each case how the composite decree is drawn up. But if the composite decree is a decree which is both a personal decree as well as a mortgage decree, without any limitation on its execution, the decree holder, in principle, cannot be forced to first exhaust the remedy by way of execution of the mortgage decree alone and told that only if the amount recovered is insufficient, he can be permitted to take recourse to the execution of. the personal decree. For a simple mortgage decree as prescribed in Form No. 5 of Appendix D of the Code of Civil Procedure it could be so because the decree provides like that. It is only when the sum realised on sale of the mortgaged property is insufficient then the judgment-debtor can be proceeded with personally. But the observations of the Court in Manku Narayana's case (AIR 1987 SC 1078) (supra) that even if the two portions of the decree are severable and merely because a portion of the decretal amount is covered by the mortgage decree, the decree-holder, per force has to proceed against the mortgaged property first are not based on any principle of law. With all due respect to the learned Judges, in the light of the observations made by us earlier, we are constrained to observe that Manku Narayana's case (AIR 1987 SC 1078) (supra) was not correctly decided.” 9. Learned counsel relied on heavily on the summons issued by the arbitrator in support of his contention decree has been sought for against the petitioner and three others and whereas decree has been granted against the petitioner alone. No doubt, the summons is stated to be addressed to four individuals including the petitioner. But what is material is the award passed by the arbitrator. It is explicit from the award that the petitioner entered appearance through a counsel and admitted the suit claim and thereupon the arbitrator proceeded to pass the award. The award does not indicate that it has been passed against the property. What is stated in the award is that the moveable and immovable properties are liable to be attached for recovery of the suit amount. Therefore, the contention of the petitioner that R2-Bank obtained award by playing fraud or misrepresentation has no substance. 10. Learned counsel appearing for the petitioner submits that the sale of the house property has been effected without there being any attachment and therefore sale is in clear violation of Rule 52(10) of A.P. Cooperative Societies Act and Rules, 1964 (for short Act). To buttress his submissions, he refers to Rule 52(10), which reads as under: “ Immovable property shall not be sold in execution of a decree unless such property has been previously attached. Provided that where the decree has been obtained on the basis of a mortgage of such property, it shall not be necessary to attach it.” 11. Per contra, learned counsel appearing for 3rd respondent-auction purchaser submits that after the award has been passed by the arbitrator R2-Bank initiated proceedings for execution of the decree under Rule 52 of the Act and got the property attached. He further submits that the petitioner filed application to set aside the sale and the said application ended in dismissal. Therefore, the petitioner cannot be permitted to contend that the property has been put to sale without there being attachment as provided under Rule 52 of the Act. He drew my attention to the order passed in the Claim Petition No.2 of 2003 by Deputy Registrar of Cooperative Societies, Divisional Cooperative Officer, Golconda Division, Hyderabad on 31.12.2003. It is evident from the order that the petitioner filed Claim No.2 of 2003 to set aside the auction of the house conducted on 27.10.2003 on the ground of material irregularity, mistake and fraud both in publishing and conducting the sale. The said claim petition ended in dismissal on 31.12.2003. The relevant portion of the order reads as under: “ Upon verification of claim petition, counter, loan record of the bank and record of the Sale Officer and upon hearing of the arguments advanced by the counsel for the Bank and 4th respondent, I arrive at the conclusion that the petitioner have defaulted to repay the amounts due to the 3rd respondent Bank and the bank failed to dispute u/s 61 of APCS Act in which the petitioner also participated. An award dt.20.7.2002 in ARC.No.134/2002-CUB/GD was passed directing the petitioner to pay an amount of Rs.4,92,566/- together with interest from 1.1.2002 and on failure the bank initiated Execution proceedings. Form No.7 Under Rule 52(11)(d) of the Rules was issued by the sale officer to the petitioner on 31.7.2003. This authority issued notice in form No.8 and 9 putting the subject property to sale on 27th October. Though all the notices were acknowledged by the petitioner, he failed to repay the amount due to the bank as demanded. The auction record of the 1st respondent shows that the auction held on 27.10.2003 is in accordance with the provisions of APCS Rules 1964 in respect of house property bearing No.24.138/10(24.91/2) belonging to the petitioner herein i.e. the principal borrower of the bank and tht the market value assistance report dt.16.10.2003 manifests the value of the subject property as Rs.7,91,856/- hence the allegation of under sale is not tenable. The other allegation of the petitioner that the 4th respondent is a guarantor to the loan availed by him and got the property sold and that he himself purchased the property is not tenable since on perusal of the record of the bank it is crystal clear that the 4th respondent has not stood as guarantor/surety to the loan availed by the petitioner.” The petitioner did not chose to question the order passed in Claim Petition NO.2 of 2003 and thereby that order rejecting the contentions of the petitioner with regard to material irregularity in conducting the sale reached finality. 12. It is contended by learned counsel appearing for the petitioner that the petitioner has a right to challenge the sale certificate dated 31.1.2004 under Rule 52(14)(vi) of the Act by way of an appeal under section 76 of the Act within 90 days from the date of issuance of sale certificate. At this juncture I deem it appropriate to refer Rule 52(14)(v) and (vi) of the Act, which reads as under: “ (v) After the confirmation of any such sale, the said Registrar shall grant a certificate of sale bearing his seal and signature to the purchaser. Such certificate shall state the property sold and the name of the purchaser, and it shall be conclusive evidence of the fact of purchase, in all courts and tribunals where it may be necessary to prove it and no proof of the seal or signature of the Registrar of the district shall be necessary unless the authority before whom it is produced shall have reason to doubt its genuineness. (vi) An order made under Clause (v) of this sub-rule shall, subject to an appeal under Section 76 of the Act within 90 days from the date of the order, be final and shall not be liable to be questioned in any suit or other legal proceedings. A plain reading of the above referred Rule indicates that the aggrieved party can question the sale certificate by way of an appeal under section 76 of the Act. Indeed the petitioner filed an appeal questioning the sale certificate dated 31.1.2004 before the A.P. Cooperative Tribunal at Hyderabad. Since there was a delay in filing the appeal he moved I.A.No.758 of 2004 under section 76(3) to condone the delay of 64 days in filing the appeal. Learned Tribunal proceeded to dismiss the application on the ground that the petitioner failed to offer sufficient reasons. 13. It is contended by learned counsel appearing for the petitioner that there is some miscalculation with regard to the number of days in filing the appeal before the Tribunal and therefore the order impugned in the W.P.No.17239 of 2004 is liable to be quashed and consequently I.A.No.758 of 2004 is to be allowed. 14. Sri P.R.Prasad, learned counsel appearing for the 3rd respondent- auction purchaser submitted that the petitioner has not offered sufficient reasons for the delay in filing the appeal and therefore the learned Tribunal is justified in dismissing the delay condonation application. He would further submit that the writ petitions are liable to be dismissed on the ground of laches on the part of the petitioner. In support of his submissions, he placed reliance on the following decisions of the Supreme Court: (1) RAMLAL V. REWA COALFIELDS LTD[5] (2) SWAIKA PROPERTIES (P) LTD. STATE OF RAJASTHAN[6] (3) SHIV DASS V. UNION OF INDIA[7] (4) A.P.STEEL RE-ROLLING MILL LTD. V. STATE OF KERALA[8] (5) CHAIRMAN & MD, BPL, LTD. V. S.P.GURURAJA[9] (6) CHERIPALLI MADAR V. ASSISTANT DIVISION ENGINEERS[10] 15. The petitioner pleaded his ill-health as a ground to condone the delay in filing the