Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 344 (CAL)

BANANI NANDI v. STATE OF WEST BENGAL

2002-05-20

AMITAVA LALA

body2002
A. LALA, J. ( 1 ) IN this writ petition, the petitioners challenged the order passed by Registrar, Cooperative Societies, West Bengal on 11th October, 2001. This order is outcome of a direction given by a single Judge of this Court on 17th July, 2001 to that extent by disposing of the writ petition being numbered W. P. No. 9911 (W) of 2001. ( 2 ) IN giving such direction to the Registrar the Court was made it clear that such Registrar should not discharge the function of the Arbitrator. It is significant to note hereunder that a claim before an Assistant Registrar appointed as Arbitrator was pending. Under order impugned the Registrar opined that the original application by the concerned parties under section 95 of the West Bengal Cooperative Societies Act, 1983 is maintainable. The parties are at liberty to raise all the points of law and facts before the Arbitrator excepting the point of maintainability. ( 3 ) THE petitioners become aggrieved by such last part of the order of the Registrar i. e. excepting the point of maintainability. The petitioners contended that the claim before the Assistant Registrar appointed as Arbitrator hereunder is clearly barred by law of limitation. ( 4 ) ACCORDING to Mr. Bhattacharya, learned counsel, appearing for the petitioners led by Mr. Jayanta Kumar Mitra, learned senior counsel, similar point arose before a single Bench as available in the judgment reported in 1999 (1) CLJ 327 (Galaxy Engineers Co-operative Societies Ltd. and Ors. v. State of West Bengal and Ors.) but the single Judge failed to appreciate the same when the Division Bench in Appeal set aside such order on 3rd March, 2000 in an unreported judgment in MAT No. 3158 of 1998. It was held herein that the question of limitation if survive it will hit the jurisdiction and ultimately followed by a nullity. Hence, upon setting aside the order of the Tribunal and the award passed by the Arbitrator the matter was remitted back to the Registrar for considering as to whether the case has been made out for condonation of delay or not. ( 5 ) IN the instant case the single Judge was pleased to direct the Registrar to consider the matter and the Registrar has considered the same and passed an order. ( 5 ) IN the instant case the single Judge was pleased to direct the Registrar to consider the matter and the Registrar has considered the same and passed an order. Therefore, such single Judge has done the same thing which was done by the Division Bench in the unreported judgment. Hence, I fail to understand what is the wrong in it. A case has to be registered before the Registrar, who, in turn, may refer the matter to the concerned Assistant Registrar appointing him as Arbitrator. Therefore, it is a case of reference by the Registrar being the appropriate authority. Hence, it is duty incumbent upon the Registrar to consider whether the matter is referable or not. In other words, whether the referability is barred by law of limitation or not. It has got nothing to do with the domain of the Arbitrator. Arbitrator is free to decide any question including the question whether the claim is barred by law of limitation or not. Such question of limitation cannot be similarly placed with the question of limitation as regards reference. If it is so, there is no other alternative for the petitioners but to submit to the jurisdiction of the Arbitrator. ( 6 ) MR. Saktinath Mukherjee, learned senior counsel, appearing in support of the contesting respondent placed reliance on section 95 (1) and 95 (2) of the Act. According to him, admittedly the disputes amongst the parties are coming within the zone of section 95 (1) of the Act. Embargo, if any, can only be put under section 95 (2) of the Act. There, it has held that everything other than the dispute relating to recovery of money shall be referred to the Registrar within two months from the date on which the cause of action arises. Therefore, there is no limitation as regards reference relating to recovery of money to the Registrar. The Registrar has correctly held so. Therefore, there is no scope of passing any order by this Court. If someone is aggrieved by the award or order of the Arbitrator there is forum for the same which may lead to Cooperative Tribunal. Hence, the submission on the part of the petitioners have no merit. The Registrar has correctly held so. Therefore, there is no scope of passing any order by this Court. If someone is aggrieved by the award or order of the Arbitrator there is forum for the same which may lead to Cooperative Tribunal. Hence, the submission on the part of the petitioners have no merit. He has also drawn my attention to the paragraph 10 of the writ petition as well as the other parts of the writ petition wherefrom I find that the claim is in the nature of money-claim to recover a sum of Rs. 33,00,000/ -. Such dispute is in the nature of civil dispute. Therefore, how the petitioner will be entitled to get an order from the writ Court is best known to them. ( 7 ) IN reply, Mr. Bhattacharya, has drawn my attention to section 50 of the Act. But I find room there that non-obstanti clause in respect of the provisions of the Limitation Act, 1963 is made applicable therein. The other parts are only described about cut off date for the purpose of calculation of the period of limitation which has got nothing to do in respect of the present cause of action. ( 8 ) IN further he wanted to extend the scope and ambit of the writ petition. He contended that the question of limitation is not only the question before the Registrar. But a further question was there whether the claim will be lodged against the cooperative society or the individual member when the petitioners herein have no liability towards the claim of the parties invoked the forum for arbitration. The petitioners are the promoters for the purpose of formation of the cooperative societies and when the cooperative society has already been formed they cease to be the promoters. Therefore, there cannot be any claim against such promoters. Even thereafter they were made parties alongwith the cooperative society which is wrong on the part of the contesting respondents. Such questions cannot be decided by the Arbitrator. ( 9 ) ACCORDING to me, there is a fallacy of such argument. Under section 95 (1) any dispute concerning the business of cooperative society capable of being the subject of civil litigation or any dispute relating to the affairs of the cooperative society which shall be referred in the prescribed manner to the Registrar. ( 9 ) ACCORDING to me, there is a fallacy of such argument. Under section 95 (1) any dispute concerning the business of cooperative society capable of being the subject of civil litigation or any dispute relating to the affairs of the cooperative society which shall be referred in the prescribed manner to the Registrar. It was done in the present case and the Registrar referred the matter to the Arbitrator. Therefore, the Arbitrator will be entitled to finalise all the issues available before him. Even the petitioners are entitled to raise the issue of misjoinder or non-joinder of necessary parties before the Arbitrator. Technically as regards existence of promotership in spite of registration of the cooperative society might have been a very good defence in merit before the Arbitrator but for the same a writ jurisdiction is not the appropriate forum. ( 10 ) THE position of the Arbitrator appointed with the reference of the Registrar under section 95 (1) of the Act is unique one. He is not an Arbitrator under the general law of arbitration nor his function is in the form of a statutory Arbitrator with limited power under various other Acts. Either the Registrar or an Arbitrator in this Act was unfettered right to hear the civil litigation and/or any dispute relating to the cooperative society like Civil Court. Therefore, the domain of such authority in respect of the points of merit and technicality are comparable with Civil Court. This is the intention of the legislature as available from the plain reading of the same. The only difference between the Registrar and the Arbitrator to be appointed therein is whether the matter is governed by section 95 (1) of the Act or not and whether the claim is as regards money or not and whether there is any question of involvement as regards limitation for reference or not. However, in both the counts order of the Registrar is clear and explicit. Therefore, I do not find any reason to interfere with the same. Thus, the writ petition stands dismissed. However, no order is passed as to costs. This order will not prevent the petitioner to raise any dispute either in the merit or in the technicality before the Arbitrator and in such case, point or points to be raised by the petitioners will not be hit by principles of res judicata or analogous thereto. However, no order is passed as to costs. This order will not prevent the petitioner to raise any dispute either in the merit or in the technicality before the Arbitrator and in such case, point or points to be raised by the petitioners will not be hit by principles of res judicata or analogous thereto. Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the learned advocate for the parties within two weeks from the date of putting the requisites. Petition dismissed.