- 1 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA WRIT PETITION NO. 15929 OF 2024 (CS-RES) BETWEEN: JOYAN JOHN LEWIS SO JOHN BAPTIST LOWLS AGED ABOUT 38 YEARS, R/AT J J. VILLA, THOMSON ROAD, SANTEKATTE POST, KAKKUNJE, UDUPI - 576 105 REP. BY HIS FATHER AND POWER OF ATTORNEY HOLDER JOHN B. LEWIS, S/O LATE THOMAS LEWIS, AGED ABOUT 71 YEARS SENIOR CITIZEN BENEFIT NOT CLAIMED …PETITIONER (BY SRI. RAJASHEKAR .S., ADVOCATE) AND: 1. THE STATE OF KARNATAKA DEPARTMENT OF CO-OPERATION, 1ST FLOOR, VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI, BENGALURU - 560 001 REP. BY ITS PRINCIPAL SECRETARY. 2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES AND RECOVERY OFFICER, KUNDAPUR SUB-DIVISION, KUNDAPUR, UDUPI - 575 003 3. THE SALE OFFICER, BADAGABETTU CREDIT CO-OPERATIVE SOCIETY LTD, HEAD OFFICE AT CHETANA COMPLEX, Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 MISSION COMPOUND, UDUPI - 576 101. 4. BADAGABETTU CREDIT CO-OPERATIVE SOCIETY LTD, HEAD OFFICE AT CHETANA COMPLEX, MISSION COMPOUND, UDUPI-576 101, REP. BY ITS MANAGER, (REGISTERED UNDER CO-OPERATIVE SOCIETIES ACT,1969) 5. M/S. NISSI INFINITY PROMOTERS AND DEVELOPERS, A PARTNERSHIP FIRM, HAVING ITS OFFICE AT SHOP NO.B1 AND B2, D. NO.6-2-53, 6-2-53 (1), MANDAVI COURT, COURT ROAD, UDUPI-576 101 REP. BY ITS PARTNERS, (REGISTERED UNDER PARTNERSHIP ACT) 6. MACQUIN MONTEIRO, S/O LATE JOSEPH MONTAIRO, AGED ABOUT 38 YEARS, R/AT RYANA APARTMENTS, FLAT NO.303, GOPALPURA, 1ST CROSS, SANTHEKATTE, UDUPI TALUK, UDUPI DISTRICT-576105 PARTNER OF M/S. NISSI INFINITY PROMOTERS AND DEVELOPERS. 7. P. RAMESH PRABHU, S/O LATE RAGHAVA PRABHU, AGED ABOUT 73 YEARS, R/AT "PRASANNA HOUSE", MUDARANGADI, UDUPI TALUK, UDUPI DISTRICT-574 113 PARTNER OF M/S NISSI INFINITY PROMOTERS AND DEVELOPERS. 8. SHYAM K POOJARY, S/O KORAGA POOJARY, AGED ABOUT 73 YEARS, R/AT GOKUL HOUSE, GOPALPURA, 1ST MAIN CROSS, 1ST LANE, SANTHEKATTE POST, UDUPI TALUK, - 3 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 UDUPI DISTRICT - 576 105 PARTNER OF M/S. NISSI INFINITY PROMOTERS AND DEVELOPERS, …RESPONDENTS (BY SRI. YOGESH .D. NAIK, AGA FOR R1 & 2 SRI. MAHESH R. UPPIN, ADVOCATE FOR R3, 4, R5 UNCLAIMED, R7 & 8 - SD/- V/O DT.11/7/2025, NOTICE TO R6 IS HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 07.06.2024 PASSED BY THE 2ND RESPONDENT IN EXECUTION NO.64/2022-23 PURSUANT TO THE DISPUTE NO.19/2020-21 ON THE CLAIMS PETITION FILED UNDER RULES 38 (5) (A) AND 41 OF KARNATAKA CO-OPERATIVE SOCIETIES RULES. 1960 VIDE ANNEXURE- A. AND ETC., THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL ORDER The petitioner has approached this Court seeking issuance of writ in the nature of certiorari to quash the order dated 07.06.2024 passed by respondent No.2 in Execution No.64/2022-23, pursuant to Dispute No.19/2020-21 on the claim petition filed by the petitioner under Rules 38(5)(a) and - 4 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 41 of Karnataka Co-operative Societies Rules, 1960 produced as per Annexure-A. 2. Heard Sri. Rajeshekar S, learned counsel for the petitioner, Sri. Yogesh D Naik, learned Additional Government Advocate for respondent Nos.1 and 2 and Sri. Mahesh R Uppin, learned counsel for respondent Nos.3 and 4. Notice issued to respondent No.5 is returned unserved as addressee left. Learned counsel for the petitioner submits that respondent Nos.6 to 8 are the partners of respondent No.5 - Company. However, none of them have appeared before the Court or represented by the advocate. Perused the materials on record. 3. Learned counsel for the petitioner contended that the partnership by name M/s Nissi Infinity Promoters and Developers came to be constituted on 24.06.2011 between the petitioner and respondent No.6 for the purpose of carrying on business. The deed of partnership is produced as per Annexure- B. The said partnership was re-constituted on 22.07.2011 and again on 15.12.2015. The deed of re-constitution of partnership firm dated 15.12.2015 is produced as per Annexure-C. - 5 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 4. Learned counsel further contented that there was difference of opinion between the partner of respondent No.5 firm. A registered partition dated 27.01.2016 came to be entered into between the parties. The property that were allotted to the share of Mrs. Jennifer Caran D'Souza, are shown in schedule-B as the residential complex by name 'The Icon' situated at Moodabidri Village, Udupi Taluk. As per the terms of partition deed, flat Nos.406 and 502 are allotted to the share of the petitioner. 5. Learned counsel further contented that respondent No.5 had availed loan from respondent No.4 - Society for development of the partnership firm. The said loan was not repaid, and therefore, respondent No.4 has initiated recovery proceedings. Respondent No.6 has agreed to repay the loan. However, the cheque issued by him came to be dishonored and the criminal proceedings were initiated in that regard. Inspite of that, respondent No.6 has not cleared the loan. In the meantime, a Memorandum of Understanding was entered into on 15.09.2021 produced as per Annexure-G, according to which, flat No.406 in 'A' block, 'B' wing and flat No.502 'A' block - 6 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 in 'B' wing, which are described in the schedule, were agreed to be allotted to the share of the petitioner. In the Memorandum of Understanding and also in the re-constitution of partnership deed, it was made clear that the liability of the partnership firm shall be cleared by the continuing partners. The re-constitution of the partnership deed dated 27.09.2021 is produced as per Annexure-H. 6. Learned counsel further contended that respondent No.4 filed Execution Case No.64/2022-23 before respondent No.2 and sought for auction of the properties belonging to respondent No.5. Flat Nos.406 and 502 fully described in the petition were also brought for sale. On coming to know about the sale, the petitioner has filed a claim petition under Rule 41 of the Karnataka Cooperative Societies Rules, 1960 claiming the property as his exclusive properties. The legal notice dated 19.05.2023 was issued to the partners in that regard. The claim made by the petitioner before respondent No.2 was rejected and various properties including the petition schedule properties were brought for auction as per Annexure-K. Therefore, he prays for quashing the order rejecting the claim - 7 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 and the issuance of paper publication as per Annexure-K for auctioning the petitioner schedule properties. 7. Per contra, learned counsel for respondent No.4 by filing additional statement of objections and affidavit contended that initially the partnership was constituted on 27.01.2016 as per Annexure-D. Flat Nos.406 and 502 referred to as item Nos.1 and 2 in the 'A' block, 'B' wing in Annexure-K was allotted to the share of the petitioner under the said partition deed dated 27.01.2016. Respondent No.5 including the petitioner and its other partners applied for loan with respondent No.4 as per Annexure-R1 on 29.07.2016. Therefore, it is clear that only after partition and allotting flat Nos.406 and 502 i.e., schedule properties, the petitioner along with other partners applied for loan. Annexure-R2 is the deposit of title deeds executed by the partners including the petitioner, in favour of respondent No.4 on 09.08.2016. Annexure-R3 is the promissory note dated 29.07.2019 executed by the petitioner along with other partners. Therefore, he prays for dismissal of the petition. - 8 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 8. In the light of rival contentions urged by learned counsel for both parties, the point that would arise for my consideration is: "Whether the petitioner has made out any grounds to allow the petition?" My answer to the above point is in 'Negative' for the following: REASONS 9. My attention was drawn by learned counsel for respondent No.4 to Annexure-R6, the dispute raised before the Assistant Registrar of Co-operative Societies, in which the petitioner is also one of the party, arrayed as respondent No.2. On consideration of rival contentions of parties as referred to above and on consideration of materials on record, it is clear that the petitioner is also one of the party to the loan documents and party to the dispute before respondent No.2 in the dispute that was raised under Section 70 of the Karnataka Co-operative Societies Act, 1959. Under such circumstances, the contention of the petitioner that he was not a party to any of the loan documents or that all the liabilities of the - 9 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 partnership firm was agreed to be repaid by other partners, cannot be accepted. 10. Learned counsel for respondent No.2 has filed an affidavit to the effect that item No.4 in 'A' block 'B' wing and item Nos.3 and 4 in 'B' block 'A' wing were already sold and they are not available to recover the outstanding amount. Learned counsel for respondent No.4 specifically submits that item Nos.1 and 2 in 'B' block 'A' wing and item Nos.1 and 2 in 'A' block 'B' wing are available for auction. 11. Learned counsel for the petitioner prays for a direction to respondent No.4 to first auction flat Nos.107 and 207 i.e., item Nos.1 and 2 in the 'B' block 'A' wing to release the outstanding which is only about 28 lakhs and thereafter, if the amount is not sufficient to clear of the dues, respondent No.4 can proceed against flat Nos.406 and 502 i.e., Sl.Nos.1 and 2 in 'A' block 'B' wing mentioned in Annexure-K. 12. Learned counsel for respondent No.4 however, submits that when the petitioner is a party to the loan documents and he mortgaged the property by deposit of title deeds and he is also party before respondent No.2 in the - 10 - HC-KAR NC: 2025:KHC:47926 WP No. 15929 of 2024 dispute, he is not entitled for any such relief. I do find considerable force in the contention by respondent No.4 in that regard. Hence, the petitioner is not entitled for any relief. Accordingly, I answer the above point in the negative and proceed to pass the following: ORDER The petition is dismissed. SD/- (M G UMA) JUDGE PNV CT:VS List No.: 2 Sl No.: 2