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2009 DIGILAW 840 (CAL)

Tanmay Das v. Contai Co-operative Bank Ltd

2009-11-27

TAPAN KUMAR DUTT

body2009
Judgment : TAPAN KUMAR DUTT, J. (1.) This Court has heard the learned Advocate for the petitioner and also the learned Advocate for the Contain Co-operative Bank Ltd. authorities. Both the revisional applications have been heard together since the said two revisional cases arise out of the same set of facts. First, C.O. No. 2361 of 2008 is taken up for disposal. Re: C.O. No. 2361 of 2008 (2.) Petitioners case is that the dispute case No. 421 of 2005-06 was filed by the, petitioner against the opposite parties praying for an award directing the Contain Cooperative Bank Ltd. authorities (hereinafter referred to as the said Bank) to make payment of a certain sum of money to the petitioner and also an amount at a certain rate per day which should be paid by the said Bank to the petitioner till the bus in question is returned to the petitioner. The petitioner also claimed interest. The petitioners case is that the petitioner took a certain loan from the said Bank keeping the bus as a security and the petitioner made certain repayments towards loan amount. The petitioners grievance is that the said Bank certainly seized the bus by force and sold the same and the sale proceeds have been adjusted against the claim of the Bank. According to the petitioner, such sale of the bus was absolutely illegal. The Assistant Registrar of the Co-operative society appointed an arbitrator and the said Bank filed a written statement in the said dispute case but such written statement was verified by the person who was the Manager (Operation) and Officiating Secretary of the said Bank. The arbitrator passed an award dated 01.02.2007 awarding a certain sum of money on account of principal claim along with interest. The arbitrator further ordered that if the decreetal amount is not paid with interest and costs on or before a certain date the petitioner shall execute the award for recovery of the decreetal amount. That challenging the said award the said Bank filed an appeal before the West Bengal Cooperative Tribunal being Appeal No. 19 of 2007. The Tribunal by judgement dated 5th December, 2007 allowed the said appeal and set aside the said award dated 01.02.2007 and dismissed the dispute case concerned. That challenging the said judgement dated 5th December, 2007 the petitioner has filed the present application under Article 227 of the Constitution of India. The Tribunal by judgement dated 5th December, 2007 allowed the said appeal and set aside the said award dated 01.02.2007 and dismissed the dispute case concerned. That challenging the said judgement dated 5th December, 2007 the petitioner has filed the present application under Article 227 of the Constitution of India. (3.) The learned Advocate for the petitioner submitted that the written statement filed in the said dispute case was verified by the Manager (Operation) and Secretary (Officiating) of the said Bank and as such the said written statement was not a valid one and no reliance can be placed on such written statement. The said learned Advocate referred to section 23 of the West Bengal Co-operative Societies Act, 1983 (hereinafter referred to as the said Act). The said section 23 states that a registered Co-operative Society shall be a body corporate by its registered name with perpetual succession and a common seal, and with power to acquire, hold and, dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it is constituted. The said learned Advocate submitted that the co-operative society concerned as a body corporate could defend the dispute case but in the present case the officiating secretary filed the written statement and as such the written statement is bad in law. He also referred to Rule 48 (j) of the West Bengal Co-operative Societies Rules, 1987 (hereinafter referred to as the said Rules) in support of his submission. He further referred to Rule 49 (j), and Rule 171 of the said Rules in support of his above submission. (4.) The learned Advocate for the said Bank authorities submitted that under Rule 171 of the said Rules there is no provision for verification of either the written statement or the plaint and as such it is immaterial even if the written statement was verified by the Manager (Operation) and Secretary (Officiating) of the said Bank. His submission was that the written statement in the said dispute case was filed on behalf of the defendant Bank and it was only verified by the said officiating secretary and as such there was no violation of any Rule. His submission was that the written statement in the said dispute case was filed on behalf of the defendant Bank and it was only verified by the said officiating secretary and as such there was no violation of any Rule. He also submitted that in dispute case No. 254 of 2005-06 where the said Bank was the plaintiff, the plaint was of the said bank itself but the verification of the said plaint was done by the Manager (Operation) and Secretary (Officiating) of the said Bank. According to him there is nothing illegal and/or unlawful in the manner in which the written statement in dispute case No. 421 of 2005-06 and the plaint in dispute case No. 254 of 2005-06 were verified and filed. The learned Advocate for the said Bank referred to the provisions of Order 29 Rule 1 of the Code of The Code of Civil Procedure. It will appear from the said provision of law that in suits by or against a Corporation a pleading may be signed and verified on behalf of the corporation by the Secretary or by any Director or other principal officer of the corporation who will be able to depose to the facts of the case. In the present case, the person who verified the written statement was an Officiating Secretary. Thus, such person was discharging the duties and responsibilities of a secretary even though in an officiating capacity. The learned Advocate for the said Bank further referred to the bye-laws of the said bank and relied upon bye-law No. 52 XX which provides that subject to the general control of the Board of Directors, the Secretary i.e. the Chief Administrative Officer shall have the power to institute or defend legal proceedings in law Courts and other places. The said learned Advocate further submitted that since the petitioner is a member of the society concerned he is bound by the bye-laws of the said society and in support of such submission he has referred to the decision reported at 2005(5) SCC 632 (Zoroastrian Cooperative Housing Society Ltd. and Anr. vs. District Registrar, Cooperative Societies (Urban) and Ors. Thus it will appear that the Secretary of the said Bank is a competent person to verify the pleadings of the said Bank before the appropriate authority. vs. District Registrar, Cooperative Societies (Urban) and Ors. Thus it will appear that the Secretary of the said Bank is a competent person to verify the pleadings of the said Bank before the appropriate authority. It is true that in the present case the Secretary was an officiating one but the officiating status of the secretary cannot take away his power to verify the pleadings of the said Bank. The learned Advocate for the petitioner could not place any provision of law before this Court which stipulates that an officiating secretary of a Co-operative Bank is incompetent to verify the pleadings on behalf of such Co-operative Bank. Thus, considering the respective submissions made by the learned Advocates for the respective parties and the materials on record and also the relevant rules and be-laws of the said Bank and also the provisions of Order 29 Rule 1 CPC, this Court is of the view that there has been no irregularity in the verifications of the pleadings on behalf of the said Bank in the aforesaid two dispute cases. (5.) The second point raised by the learned Advocate for the petitioner is that the learned Tribunal could not have passed the impugned judgement since the parties did not adduce any evidence in the case. (6.) The learned Advocate for the said Bank submitted that sufficient opportunity was given to the petitioner to adduce evidence and, in fact, the relevant records were placed before the authority concerned. The materials on record reveal that the petitioner as well as the said Bank had sufficient opportunity to adduce evidence and the records also reveal that certain documents were placed before the authority and on the basis of such document the authority concerned has decided the matter. The learned Advocate for the said Bank referred to section 91 of the Indian Evidence Act, 1872 and also section 141 of the said Act of 1983. The learned Advocate for the said Bank referred to section 91 of the Indian Evidence Act, 1872 and also section 141 of the said Act of 1983. Section 141(1) of the said Act stipulates that a copy of any entry in a book of a Co-operative society regularly kept in the course of its business and in the prescribed manner shall, if certified in the prescribed manner, be accepted in any suit or legal proceedings as a prima facie evidence of the existence of such entry in such book and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry is admissible. The said learned Advocate has also referred to section 4 of the Bankers Books Evidence Act, 1891 in support of his submission that a certified copy of an entry in a Bankers Book shall in all legal proceedings be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible. He has referred to the judgements reported in 2003(6) SCC 595 , Roop Kumar vs. Mohan Thedani, and relied upon paragraphs 19 to 22 of the said reports while making his submission on the true meaning of sections 91 and 92 of the Evidence Act. He also referred to the decision reported at 2004(4) SCC 794 , Parvinder Singh vs. Renu Gautam and Ors. and referred to paragraph 9 of the said reports but it appears that the said decision is hardly of any relevance in the facts and circumstances of the instant case. The said learned Advocate submitted that the relevant ledger was produced by the Bank and such ledger will show that the petitioner did not make the payments according to the terms and conditions contained in the agreement. It appears on a perusal of the materials on record that sufficient opportunity was given to the parties to adduce their respective evidence and in spite of such opportunities if the petitioner has not adduced any evidence the petitioner cannot be allowed to argue the point as raised by his learned Advocate. It also appears that the ledger book concerned was taken into consideration by the authority concerned. It also appears that the ledger book concerned was taken into consideration by the authority concerned. Thus, this Court does not find any merit in the second point raised on behalf of the petitioner. (7.) The third point raised by the learned Advocate for the petitioner was that the appellate authority has made some irrelevant observations in the impugned judgement and for such purpose he referred to some of the observations of the appellate authority appearing at pages 109 and 110 of the application. This Court is of the view that the observations made by the appellate authority in the said pages do not vitiate the impugned judgement as such. (8.) The last point raised by the learned Advocate for the petitioner is that no proceeding was initiated by the said Bank for recovery of the bus but the bus concerned was seized illegally. He further submitted that the subsequent sale of the bus was also illegal. He referred to Rules 204, 205, 206 and 207 of Chapter XIII of the said Rules of 1997 and submitted that such Rules were not followed. The said Rule 204 is with regard to appointment of sale officer, Rule 205 is with regard to the provision for issuance of a notice and/or written demand, Rule 206 is with regard to the provision for application for sale and Rule 207 is with regard to the provision for procedure for sale. The said learned Advocate submitted that none of these Rules were followed by the authority concerned. It will appear from the impugned judgement that the appellate authority has recorded that a xerox copy of the letter dated 21.02.2004 is on record and that the said notice is a demand notice. The said learned Advocate for the said Bank submitted that according to the hypothecation agreement the Bank was entitled to seize and sell the said vehicle if the situation so warranted. The said learned Advocate for the said Bank submitted that according to the hypothecation agreement the Bank was entitled to seize and sell the said vehicle if the situation so warranted. He has referred to a decision reported at 2007 (3) CHN 975 , (Bhanu Pratap Singh vs. State of W.B. and Ors.) where an Honble Division Bench of this Court has been pleased to observe that in a case where a borrower commits undisputed default in payment of instalments and there is a specific stipulation that in the case of default the lender will have the right to take possession of the vehicle, the writ petitioner cannot come up before the High Court for a direction upon the police authority to return the vehicle from the lender who has taken possession of the same for breach of terms of the agreement. The said learned Advocate further referred to a decision reported at 2006(4) CHN 813 , Arindam Basu and Ors. vs. Amal Kumar Bose and Ors., that is, a judgement delivered by a Division Bench of this Court, in support of his submission that since the petitioner committed default in payment of installments the said Bank had the right to take possession of the vehicle concerned and a valuable right had accrued in favour of the said Bank. (9.) The learned Advocate for the opposite party relied upon a decision reported at 2004 (3) SCC 682 . Ranjeet Singh vs. Ravi Prakash. In paragraph 4 of the said reports the Honble Supreme Court has been pleased to observe with regard to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution of India that such jurisdiction was not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like a Court of Appeal. The said learned Advocate also referred to a decision reported at 2009(5) SCC 616 (Radhey Shyam and Ors. vs. Chhabi Nath and Ors.). In paragraph 31 of the said reports the Honble Supreme Court has been pleased to observe that the power under Article 227 has to be very sparingly exercised to keep Tribunals and Courts within the bounds of their authority. vs. Chhabi Nath and Ors.). In paragraph 31 of the said reports the Honble Supreme Court has been pleased to observe that the power under Article 227 has to be very sparingly exercised to keep Tribunals and Courts within the bounds of their authority. Taking into consideration the respective submissions of the learned Advocates for the respective parties and the facts that the authority has taken into consideration the relevant ledger account of the petitioner and the authority has found that from the materials on record it is clear that on several occasions that the said Bank by issuing letters requested the petitioner to repay the outstanding balance but the petitioner kept silent in the matter. The appellate authority has also come to the finding that the petitioner had no intention to repay the outstanding balance of the loan amount and that the arbitrator was not justified in passing the award in dispute case No. 421 of 2005-06. (10.) Considering the judgements reported at 2007(3) CHN 975 and 2006(4) 813 and the facts and circumstances of the instant case this Court does not find any merit in the fourth point raised on behalf of the petitioner. (11.) In view of the discussions made above and particularly keeping in mind the scope of Article 227 of the Constitution of India, this Court is not inclined to interfere with the impugned judgement passed by the appellate tribunal since there is no merit in the present application. The present application under Article 227 of the Constitution of India is, accordingly, dismissed. Re: C.O. No. 862 of 2008 (12.) Now the said CO. No. 862 of 2008 is taken up for disposal. With regard to this matter the relevant Dispute Case is Dispute Case No. 254 of 2005-06 filed by the said Bank against the petitioner and others. In this Dispute Case the said Bank claimed that the said Bank is entitled to get relief against the defendants in the case jointly and severally for realisation of the outstanding claim being the principal amount of Rs.2,14,697/-. The said Bank prayed for an award for encashment of the security deposit for adjustment with the loan account, an award directing the petitioner to pay the said principal amount to the said Bank etc. The said Dispute Case arose out of the same loan transaction which was involved in the Dispute Case No. 421 of 2005-06. The said Bank prayed for an award for encashment of the security deposit for adjustment with the loan account, an award directing the petitioner to pay the said principal amount to the said Bank etc. The said Dispute Case arose out of the same loan transaction which was involved in the Dispute Case No. 421 of 2005-06. In the Dispute Case No. 254 of 2005-06 the arbitrator concerned passed an award directing the petitioner to pay to the said Bank the sum of Rs.2,14,697/- on account of principal amount and interest thereon calculated upto 21.11.2005, costs and also interest at the rate of 14% per annum from 22.11.2005 until the principal amount is realised by the said Bank in full. The arbitrator directed that if the petitioner pays off the entire amount as declared in the said award on or before 31.10.2006 the said Bank shall deliver to the petitioner all documents in its possession but if such payment is not made within the due date the said Bank shall be at liberty to realise the loan together with interest and costs from the petitioner by attachment of the petitioners movable and immovable properties and sell by auction as indicated in the said award being the award dated 10.07.2006. Challenging the said award dated 10.07.2006 the petitioner filed an appeal being Appeal No. 84 of 2006 before the West Bengal Co-operative Tribunal. The Tribunal by judgement dated 5th December, 2007 dismissed the said appeal. The Appellate Tribunal by the impugned judgement dated 5th December, 2007 affirmed the aforesaid award dated 10.07.2006. (13.) The point No.1 raised by the learned Advocate for the petitioner in this case is the same as the point No.1 raised by him in the other case i.e. C.O. No. 2361 of 2008. The only difference is that in this case it was the plaint being verified by the said officiating secretary and in the other case it was the written statement being verified by the officiating secretary. This Court has already held in the other case (C.O. No. 2361 of 2008), as indicated above, that there has been no irregularity in the verification of the pleadings on behalf of the said Bank in the two Dispute Cases. This Court has already held in the other case (C.O. No. 2361 of 2008), as indicated above, that there has been no irregularity in the verification of the pleadings on behalf of the said Bank in the two Dispute Cases. Thus the first point raised by the learned Advocate for the petitioner in this case has already been answered above after a discussion of the relevant submissions made by the learned Advocates for the respective parties. (14.) The second point raised by the learned Advocate for the petitioner is that it will appear from the order dated 05.07.2006 passed by the arbitrator that the petitioners petition for adjournment was rejected and as such the petitioner is aggrieved by such order. It will appear from the copies of some of the orders passed by the arbitrator and as annexed to the revisional application that prior to 05.07.2006 adjournment petitions were filed on behalf of the petitioner on several occasions and on several occasions time was granted by the arbitrator to the parties to appear with proper records and evidence but the petitioner failed to avail of such opportunities. Thus the petitioner cannot be genuinely aggrieved if the petition for adjournment was rejected on 05.07.2006. (15.) The third point raised on behalf of the petitioner is the same as the second point raised on behalf of the petitioner in the other case i.e. C.O. No. 2631 of 2008 to the effect that the learned Tribunal could not have passed the impugned judgement since the parties did not adduce any evidence in the case. This Court has already discussed such point in the other case and has come to the conclusion that there is no merit in such point raised on behalf of the petitioner. It will appear from the award dated 10.07.2006 that the arbitrator has recorded that the petitioner has again and again prayed for adjournments before the arbitrator and such adjournments were granted. The learned Advocate for the petitioner submitted that the arbitrator had acted illegally in rejecting the prayer for adjournment when there was no compulsion to dispose of the proceedings before the arbitrator within six months and such time could be extended. The learned Advocate for the petitioner submitted that the arbitrator had acted illegally in rejecting the prayer for adjournment when there was no compulsion to dispose of the proceedings before the arbitrator within six months and such time could be extended. Since adjournment is a matter of discretion and the arbitrator had earlier granted several adjournments on the petitioners prayer, this Court does not find any substance in the submissions made by the learned Advocate for the petitioner. (16.) The learned Advocate for the petitioner submitted that by order dated 05.07.2006 the arbitrator recorded that both the parties are not interested to submit any argument and in spite of such observation the arbitrator acted illegally in passing the award as no argument was advanced on behalf of the parties and there was no evidence on record to decide the matter. It will appear from the award dated 10.07.2006 that certain records were produced by the said Bank which included the relevant ledger, two demand notices and the reply of the petitioner to the demand notices whereby the petitioner prayed that 15 days time may be granted to the petitioner to pay considerable amount. The arbitrator came to the conclusion from such stand taken by the petitioner that the petitioner has acknowledged his liability to make repayment of the loan. The arbitrator also recorded in his award that the petitioner did not submit any document in support of his case. (17.) The fourth and the last point raised by the learned Advocate for the petitioner is that the arbitrator acted without jurisdiction in directing that in default of payment by the petitioner, the said Bank shall be at liberty to realise the loan together with interests and costs from the petitioner by attachment and by auction sale of the petitioners movable and immovable properties. The said learned Advocate submitted that the arbitrator cannot give such directions with regard to the methods of recovery. In support of such submission he referred to Clause 4 of the second schedule of the said Act of 1983. The learned Advocate for the said Bank has referred to section 98 of the said Act of 1983 while submitting that the arbitrator can order such attachment. (18.) It may be noted that such directions were given by the arbitrator contemplating a situation where the petitioner might fail to make payments in terms of the award. The learned Advocate for the said Bank has referred to section 98 of the said Act of 1983 while submitting that the arbitrator can order such attachment. (18.) It may be noted that such directions were given by the arbitrator contemplating a situation where the petitioner might fail to make payments in terms of the award. Such directions do not affect the main award and/or order passed on the claim made by the said Bank in the said Dispute Case. It is needless to say that if proceedings for recovery of the amount awarded in favour of the said Bank has to be initiated then in that event such proceedings will have to be in accordance with the relevant provisions of law keeping in view the said Act of 1983. (19.) This Court, thus, does not find any substance in the fourth and the last point raised by the learned Advocate for the petitioner. (20.) In view of the discussions made above, this Court does not find any merit in the application being C.O. No. 862 of 2008 which is, accordingly, dismissed. There will, however, be no order as to costs. (21.) Urgent xerox certified copy of this judgement, if applied for by the parties, be given to the parties as expeditiously as possible on compliance of usual formalities. (22.) Let a copy of this order be also kept in the file of C.O. No. 862 of 2008. Appeals dismissed.