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1984 DIGILAW 393 (MAD)

Committee of the Peoples Co-operative Bank Ltd. No. 386 reptd. by its President,P. Kolusiah Pillai v. Thew Joint Registrar of Co-operative Societies, Tirunelveli Region, Tirunelveli

1984-09-17

DAVID ANNOUSSAMY, V.RAMASWAMI

body1984
Judgment Ramaswami, J. The Peoples Co-operative Bank Limited (hereinafter referred to as ‘the Co-operative Bank) Nagercoil is a Society deemed to be registered under the provisions of the Tamil Nadu Co-operative Societies Act 1961, (for short ‘the Act’). It is an insured Co-operative Bank within the meaning of section 73-T of the Act. It was registered as No.82 under the deposit Insurance and Credit Guarantee Corporation Act, 1961 (Central Act XLVII of 1961 ) as amended by Act LVI of 1968. In his proceedings Re.No.62139/80, B-2 dated 4th November, 1980 the Joint Register of Co-operative Societies, Tirunelveli Region (who is deemed to be the Registrar for the purpose of the Act) issued a notice to the Co-operative Bank proposing to dissolve its Committee under section 72(1) of the Act and to appoint a special Officer to manage the affairs of the Co-operative Bank on the ground that the Committee of the Co-operative Bank is not functioning properly, that it has failed to discharge the legitimate duties cast upon it under the By-laws and that the Committee has wilfully disobeyed the By-laws and instructions from the department and that it was necessary to take such an action with a view to safeguard the interests of the members and creditors and to develop the business of the Bank. The members of the Committee were called upon to make their representations, if any, within 15 days of the date of receipt of the notice. Except the President the other six Committee members did not file any representation objecting to the dissolution. Of course, the President filed his representations objecting to the dissolution of the Committee. Before final orders could be made, W.P.No.695 of 1981 was filed by the President of the Co-operative Bank praying for the issue of writ of certiorari to quash the notice dated 4th November, 1980. The only point that was raised against the validity of the notice was that since the Co-operative Bank is an insured Co-operative Bank within the menaing of section 72-T of the Act no action for dissolution of the Committee is possible without prior sanction of the Reserve Bank of India and since admittedly, there was not such prior sanction of the Reserve Bank of India in this case, the whole proceedings initiated are without jurisdiction. The respondent contended that action was taken under section 72 of the Act and that the section specifically enables the Registrar to take action for dissolving the Committee if it is not functioning properly or if it wilfully disobeys the order or wilfully fails to comply with the lawful order or direction issued by the Registrar and that power is not, in any way, affected by the provisions of section 73-T of the Act which contemplates a different situation and an additional jurisdiction to the Registrar. Following an earlier decision of this court in the Committee of Tirukoilur Co-operative Urban Bank Ltd., Tirukoilur by President N.Vadivelu v. Joint Registar Co-operative Societies, South Arcot Region, Cuddalore). W.P.No.6505 of 1980 (judgment dated 9th December, 1980), the learned judge who heard the writ petition dismissed the same holding that the powers of the Registrar under section 72 of the Act is independent of his power under section 73-T and that the notice issued does not suffer from want of any jurisdiction. In W.P. No.6505 of 1980, which was a decision of a single judge it was held that section 73-T of the Act confers an additional power to the Registrar and that it does not in any way militate against or dilute the power available to the Registrar under section 72. This view of the learned judges is canvassed in this writ appeal. 2. In order to understand the scope of section 72 and section 73-T of the Act it is necessary to trace the legislative history. Chapter IX-D in which section 73-T finds a place was introduced by Tamil Nadu Act 37 of 1979. It may be mentioned that the Parliament enacted a Deposit Insurance and Credit Guarantee Corporation Act, 1961 and that Act came into force on 1-1-1962. The Act was intended to insure all deposits in commercial banks including State Bank and its subsidiaries. Under Chapter II, a Corporation by name the Deposit Insurance Corporation was established. Section 10 provides that the Corporation shall register every existing banking company as an insured bank. Banking Company was originally defined as meaning “a bank which transacts the business of banking in India”. This Act was further amended by Act 56 of 1968 in order to enable the Co-operative Banks also to get the benefits of the provisions of the Deposit Insurance and Credit Guarantee Corporation Act 1961. Banking Company was originally defined as meaning “a bank which transacts the business of banking in India”. This Act was further amended by Act 56 of 1968 in order to enable the Co-operative Banks also to get the benefits of the provisions of the Deposit Insurance and Credit Guarantee Corporation Act 1961. It defined “elegible Co-operative Bank” as meaning “a co-operative Bank the law for the time being governing which provides that: (iii) If so required by the Reserve Bank in public interest or for preventing the affairs of the bank being conducted in a manner detrimental to the interests of the depositors or for securing the proper management of the bank, an order shall be made for the supersession of the committee of management or other managing body by whatever name called) of the bank and the appointment of an administrator therefor for such period or periods not exceeding 5 years in the aggregate as may from time to time be specified by the Reserve Bank.” The rest of the definitions is not necessary for the purpose of this case and therefore, we are not extracting the same. Correspondingly the definition of an Insurance Bank was also amended including an eligible Co-operative Bank for the time being registered under the provisions of the Act as also an Insured Bank. Section 13-A , which was introduced by Act 56 of 1968 enabled an eligible Co-operative Bank to register itself as one of the insured banks and get the benefits of those Acts. However, as may be seen from the provisions and the definition of eligible co-operative bank, which we have extracted above, if a Co-operative bank is to get the benefit of insurance the law applicable to that bank shall contain a provision incorporating that portion which we have extracted above and also some other provisions which give certain powers to the Reserve Bank over the insured banks. In order to enable the Co-operative Banks which are registered under the Co-operative Societies Act of 1961 or deemed to have been registered under the Act, to come within the Act the Tamil Nadu legislature amended the said Act by inserting section 73-T in Act 37 of 1979. The relevant portions of: section 73-T read as follows: 73-T. Order for winding-up, division, amalgamation, supersession of committee, etc. The relevant portions of: section 73-T read as follows: 73-T. Order for winding-up, division, amalgamation, supersession of committee, etc. of insured co-operative bank not to be made without sanction or requisition of Reserve Bank of India: Notwithstanding anything contained in this Act, in the case of an insured co-operative bank: (i) an order of the winding-up or division or amalgamation or transfer of assets and liabilities of the bank or an order sanctioning a scheme of compromise or arrangment or reconstruction (including reorganisation) of the bank may be made only with the previous santion in writing of the Reserve Bank of India; (iii) an order for the winding-up of the bank shall be made by the Registrar if so required by the Reserve Bank of India in the circumstances referred to in section 13-D of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (Central Act 47 of 1961) (iii) if so required by the Reserve Bank of India in the public interest or for preventing the affairs of the bank being conducted in a manner detrimental to the interests of the depositors or for securing the proper management of the bank, an order shall be made by the Registrar for the supersession of the committee and the appointment of an administrator therefor for such period or periods, not exceeding five years in the aggregate, as may, from time to time be specified by the Reserve Bank of India, and the administrator so appointed shall, after the expiry of his term of office, continue in office until the day immediately preceding the date of the first meeting of the new committee; (iv) No appeal, revision or review shall lie against an order referred to in clause (i), (ii) or (iii) made with the previous sanction in writing or on the requisition of the Reserve Bank of India and such order or sanction shall not be liable to be called in question in any manner..” There were some minor further amendments by Tamil Nadu Act 67 of 1979 which need not detain us. 3. Before the amendment of the Act by insertion of section 73-T , the Registrar of Co-operative Societies had the power to supersede the committee under section 72, if in his opinion, the Society was not functioning properly or wilfully disobeys or wilfully fails to comply with any lawful order or direction issued by him. 3. Before the amendment of the Act by insertion of section 73-T , the Registrar of Co-operative Societies had the power to supersede the committee under section 72, if in his opinion, the Society was not functioning properly or wilfully disobeys or wilfully fails to comply with any lawful order or direction issued by him. Under section 85 the Registrar was empowered, if he is of opinion after an enquiry had been held under section 65 or an inspection has been made under section 66 or section 67 or on receipt of application made by not less than 3/4th of the members of the registered society, that society ought to be wound up, to wind up the company. A reading of these two provisions in just a position with that in section 73-T(i) and (ii) would show that in the case of an insured Co-operative Bank if a case has been made out for winding up under section 85 of the Act and the Registrar is of opinion that it ought to be wound up, he has to obtain the prior sanction of the Reserve Bank under Clause (i) before making such a winding-up order. But the ‘real source of power is not in section 73-T but it is in section 86 and only an additional requirement of a previous sanction- by the Reserve Bank is needed in the case of a winding-up taken under section 85. However, clause (ii) of section 73-T enables the Reserve Bank itself to require the Registrar to wind up the company in the circumstances referred to in section 13-D of the Deposit Insurance and Credit Guarantee Corporation Act, 1961. So, if the Reserve Bank wanted to take action, the conditions to be fulfilled for requiring the Registrar to wind up are thus found in section 13-D of Central Act 47 of 1961. But if the Registrar wants to wind up the Company on his own, he is to be satisfied about the conditions provided in section 85 of the Act. As already stated, if it was not an insured Co-operative Bank, if the Registrar is satisfied with the conditions specified in section 86 of the Act, he may wind up the Co-operative Bank, but in the case of insured Co-operative Bank an additional condition is to be satisfied, namely the prior sanction of the Reserve Bank has to be obtained. As already stated, if it was not an insured Co-operative Bank, if the Registrar is satisfied with the conditions specified in section 86 of the Act, he may wind up the Co-operative Bank, but in the case of insured Co-operative Bank an additional condition is to be satisfied, namely the prior sanction of the Reserve Bank has to be obtained. Similarly Clause (iii) of section 73-T of the Act also enables the Reserve Bank to require the Registrar to supersede the committee on being satisfied that it was necessary so to do in public interest or for preventing the affairs of the bank being conducted in a manner detrimental to the interests of the depositors or for securing the proper management of the bank. It may be that these conditions overlap those conditions mentioned in section 72. But the satisfaction about the existence of those conditions in order to invoke section 73-T of the Act is the satisfaction of the Reserve Bank and not that of the Registrar, whereas section 72, refers to the satisfaction of the Registrar independently. While section 73-T made a distinction so far as winding up is concerned by fettering the Registrar to get the previous sanction of the Reserve Bank in case he wants to take action under section 85 it did not provide for any such fetter in the Registrar when he wants to take action under section 72. The section only reserves the power to the Reserve Bank itself to direct action to be taken for supersession of the committee and it did not fetter the powers of the Registrar for taking suo motu action under section 72 without reference to the Reserve Bank. The only fetter on the Registrar under section 72 , if at all is that which is provided under section 72, (6) itself which requires that before taking any action under sub- section (1) of that section the Registrar shall consult the financing bank to which the society is indebted. Probably that was considered to be sufficient safeguard for retaining the power of the Registrar for supersed-ing the Committee and not requiring the previous sanction of the Reserve Bank itself. Whatever be the reason, on a plain reading of these provisions we are of the view that the power of the Registrar under section 72 is not fettered in any way by the provisions of section 72-T (iii). Whatever be the reason, on a plain reading of these provisions we are of the view that the power of the Registrar under section 72 is not fettered in any way by the provisions of section 72-T (iii). The non obstante clause in the opening paragraph of the section only means that it reserved the powers of the Reserve Bank to direct the supersession notwithstanding anything contained in section 72 and it could not be taken to mean that the power of the Registrar under section 72 is taken away. We are, therefore, of the view that the notice issued by the Registrar in this case was well within his jurisdiction and it does not call for any interference. 4. The writ appeal accordingly fails and it is dismissed. But there will be no order as to costs. Appeal dismissed.