ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)

1. The petitioner is before this Court seeking the following prayer.

“I. Quash the impugned order passed by Karnataka Appellate Tribunal, Bangalore dated 29-10- 2024 in Co-operative Appeal No.40/2021 (Annexure-C).

II. Pass such other orders as this Hon’ble Court deems fit under the facts and circumstances of the case including the award of costs in the interest of justice and equity.”

2. Heard the learned counsel Sri. Vijay M. Malali appearing for the petitioner, learned AGA Smt. Nandini Somapur representing respondent Nos.1 to 3 and the learned counsel Sri. R.H. Angadi for respondent No.4.

3. The petitioner is a Co-operative Society registered under the Karnataka Co-operative Societies Act. The respondent No.4 is said to be the member of the society and has borrowed a loan of ₹33,51,671/-. The respondent No.4 committing default of the loan leads the society to the Assistant Registrar of Co- operative Society seeking auction of the property that was mortgaged. The Assistant Registrar of the Co-operative Society allows the petition in favour of the present petitioner, which is challenged by the respondent before the Karnataka Appellate Tribunal. The Karnataka Appellate Tribunal despite granting of several adjournments and the respondent not appearing before the Appellate Tribunal, remits the matter back to the hands of the Assistant Registrar of Co-operative Society for a fresh consideration. The society feeling aggrieved by the said order is before this Court in the subject petition.

4. The learned counsel appearing for the petitioner submits that the respondent No.4 did not appear before the Tribunal despite 40 adjournments being granted. Notwithstanding the same, the delay of filing the appeal which was six years before the Tribunal is condoned without any reasons and an order of remand is passed. Therefore, it requires interference and closure of the proceedings at the hands of this Court is the submission of the learned counsel by the petitioner.

5. Per contra, the learned counsel Sri. Pranav appearing for the respondent would vehemently refute the submission in contending that the property mortgaged towards the loan comes into possession of the respondent No.4 only in the year 2007 and the loan is granted in 2007 before the sale of the property into the hands of the respondent. Therefore, a property that was not in his possession could not have been the subject matter of mortgage is the submission.

6. The learned counsel submits that the Tribunal noticing the fact that it was the signature of the respondent No.4 was not the one that was found in the records has remitted the matter back to the hands of the Assistant Registrar of the Co- operative Society for a fresh consideration. He would submit that the fresh consideration must happen, as the respondent No.4 has not at all availed the loan by mortgaging the property.

7. In the light of the aforesaid submission, the order of the Tribunal requires to be noticed and the order is rendered with cogent reasons. The reasons are as follows:

“7. Point No.1: We have examined the Trial Court records with regard to the contention of the appellant that the appellant had not received any communication of passing of the impugned award from the Arbitrator as required under rule 31(7) (a) of KCS Rules, 1960 which is mandatory as per the decision of Hon'ble High Court of Karnataka reported in ILR 1988 KAR page-2528.

In the Trial Court records, there is no document to establish that such a notice of intimation of passing of the impugned award as required u/r 31 (7) (a) of KCS Rules, 1960, is served to the appellant and hence we are of the opinion that the appellant herein had no knowledge of the award till the execution proceedings were filed in the year 2018. Since he had contested the execution petition which had subsequently led to the attachment of his property on 07.02.2020 and later due to Covid-19 restrictions in place, and in view of the