IN THE HIGH comm ore' KARNATAKA AT 3w:GAL:3m2:
DATED THIS THE 2633* DAY OF MARCB,
BEFORE
THE HON'BLE MR. JTJSTICE ASHSK B..>'HIN'CHi£";§F;I§i'
I<£.F.A.No.'@589/2.095 A
cm maxa. xm-1590/2oo«5%
BETWEEN :
In R.F.A. No. 1539/_g00$:% jjj
Mr. Hfla1ioIizJQ1i1_1é<3i:: *
S/0 L.A,.s.IQIfi';s( )I1*,-:;,__ _ __
Aged abeut .
N€).95, No.4'? AC§QS};?fi1"Str(3et,
St. Thomas '-I'ew11_," "
fiaI1galo1'e5-._56ef) 034;.' " .
, tin RA;§é,A.&F%Ng. 159312005;
A V ' ' . AQW Abdul Subban,
Aged aLQ§;:t 3:36" yfiars,
Residiilg 'at-V'_P_'4'::)';:43, Gospel Sweet,
St. 'i~'homa::T'0wn Post,
_ ',I_3anga1o1"'¢_ -~ 560 034.
(By Sri Jose Sabastian, Adv.)
=1-.' ESI'i D. Mohan Salim},
Prop: /5. Shanti Sager,
Carrymg on the business at
N9. 1 13, Banaswadi Main Road,
Appellants
fl
Aithough these appeals are listed fo:r_%I1
taken up these appeals for final of
both the learned Advocates. _
2. Both the appeals Vt':.:3g::tht::r and
are being disposed of by
3. R.F.A. Ne§vs;':««:1:fEs89:,?_2{}C§§i: a.«{¢i'%%L2.59E)/2005 are directed
against two" adefiacaj orders both dated
24.O6.2Qi)5"Vpa§§%.s¢d'\ caf XXVIII Additional City
Civil Judggg »Ha1I_:""4.'{CCH--29), Bangalore in 0.5.
N 0. 16278} 20¢} 16277] 2003 respectively.
in R.F.A. Nos.1589/2005 and
15<;eoj/"moss owners of Plot No. 47 and No.43
Vrgspeciivgiy; carved out of the land at Sy.No.97 of
' Gospel Stmct, St. Thomas Town Post,
Bafigéiéfc - 34.
38%.
5. The respondent No.1 availed of the
from the respondent No.2. The ‘thcét—
respondent No.1 are the joint
Thcy have created equitable _
title deeds, as a security for tho The claim
of the second respondent._..it3 amounts aggegatc
to Rs.4I,36,461/.-. (Riv;-or..$f thirty six
thousand t
6. The. sz’;::ss:éim the following prayms:
a) fof’ a the plaintiff is entitled for
_ the fé§t:1_f11~.of tI1eV’tiocumeI1ts pertaining to the
Atfimntioned in the schedule to the
A pursuance of the MOU/Indemnity
executed by the first respondent in
t favmzttaf the plamtifi’.
AA the second defendant to release the
5 , j:’g:1ooume:nt pertaining to the property mentioned
in the schodulo to the plaint.
:3) For costs and such other reliefs as this Horfbic
Court might doom meet.
REM.
7. The respondent No.2 raised a ‘
maintainability of the suit. it c{;:n1;endc:<':1"'
Court that the gmzvances 0f the 'A
only before the Debt Recovery
juzrisdiction to entsrtainthc: mtsf msttszflfl
8. The Trial Court issue :
in View of the
V. V. of finwzcial
Assets hf’ Interest Act,
2052»? s
It answemdu’ ‘vafs1fesafid’~~~sxtmctsd preliminary issue in the
” and A’ the plaint by its order dated
%%2.am6;2oo5;s [L
Aby the aforesaid orders, these appeals are
Jose Sabastian, the learned Counscfl for the
V submits that the Civil Court: indeed has the
jurisdiction to sntsrtain the suits, as the matter could not
£8}-!.
* “arses Act, 2002) trmtsacting the business of
have been brought up before the Debt Recovery In
support of the submissions, he has relied :.f”f£:iinfb1c
Supreme Court’s decision in the case of
Coop. Bank Ltd. as. United rm:
reported in (2095) 7 sec 2.35.
the said judgment is extracted
’97, above and
adopting’ mm-mrfiz interpretation
of V rei;=3i¥ant statutes and
;4*~5__ofLi§f’ I and Entry 32 ofList
II of of the Constitutian, we
under :
Banks’ established under the
Cooperative Societies Act, 1950 (the
1 %’%T%1{v:c:s?’k;«acz,kk%TjL%%;950; the Andhra Pradesh Cooperative
Act, 1954 (‘the APCS Act, 1954) and the
Masai;-sme Cooperative Societies Act, 2002 (the
banking, do not fall wfihin the meaning of ‘banking
company’ as defined in Section 5(0) of the Banking
Regulation Act, 1949 (the BR Act). Therqfore, the
provisions :3′ the Recovery of flebts Due to Banks
8334
and Financiai Institutions Act, 1993 nine Basis;
by invoking the doctrine of 1110: ix _
applicable to the reeovefiy f; if–..__iffie_:A
oooperatz-uesfiomthair ” ‘ i A ”
11. Drawing support from taken by
the Hon’ble Supreme ‘S.,a_bastian, the leamed
Reconstnxjeigienw Assets and Enforcement of
SeC1J.I’it_1; (‘Securitisation Act’ for short) is
submits that the challenge to the validity of the
Securitisation Act is almady negatived by the Hon”ble
38H.
– ” =«5:xc111ff_9:io1}.___t3r jzhe 621%…. « ‘
If the R138 Act itself does not apply to the
then the question of ousting of the
Court under Section 34 of the S3ééiV111″i!is§1ti(:»I’1jA A+::tV:ud–6e$”:ndt_ AV
arise. Ouster of Civil courts? jurisc1i¢ui¢n ajs;§ravid%e:i%:;n.-Aer X
Section 34 of the secu:~it:sat1o:a fm:t is in of the
matter which the 91; {he Appellate
Tribunal is gxflpov-_;_fi¥.6d V i.’ .’
15. In the ét$~Qpera1ive Bank Ltd.
(supra), the has held that the RDB
Act hasiilp ®–operafive banks. When the
Lcg,is1atuz’e,’m%e;xg11:ist:_Of5.€s wisdom, has made the conscious
te omission of the co-operat:.ive banks
fz_Ӣ;1-3i1 the R338 Act, there is no justification for
Q§)4L§§;~«§iative banks under the pmvisions of R138 Act
mvofing Vthe doctrine of incerporafion. As discussed at
‘ “‘I§:I1gth by the Hcxfble Supreme Court, the reason fur
. igéxtfiuding the comparative banks seems ta be that the: (:0-
., fopera’cive bsmks have comprehensive, self-contained and less
fifili
interpmtation made by the Hozfble Supreme Court. .,
judmmnts relied upon by Sri Vasanth have no = * ._
for the facts of this case.
18. In the result, I allow both t’r1eV_apV1.)eaV1’S..
the orders under appeal. The matt(;_1f{-.:éj’c._V fin the
Trial Court for enquiry anéi :”adj1;(1§,C;1£i€.¥:’; ‘en merits in
accurdanoe with law.
No order as C0fi_5t.$:V. »
Sri Gounscl for the respondent
N032 is permittedwtq filc Vh1_é’ within one week’s time.
Sd/-
Iudge