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2010 DIGILAW 498 (CAL)

Balageria Central Cooperative Bank Ltd. v. STATE OF WEST BENGAL

2010-05-06

INDIRA BANERJEE, JAYANTA KUMAR BISWAS, MOHIT S.SHAH

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JUDGMENT 1. This writ petition has been placed before us upon a reference made by a learned Single Judge through the judgment dated 5th March, 2008. The learned single Judge was of the view that there were different views of two Division Benches of this Court with regard to the jurisdiction of the West Bengal Cooperative Tribunal ("the Tribunal" for brevity) constituted under the West Bengal Cooperative Societies Act, 1983 ("the Act" for brevity) for condoning delay in preferring an appeal which was presented beyond the period of limitation. 2. In Egra Thana Cooperative Agricultural Marketing Society Ltd. & Ors. vs. Registrar of Cooperative Societies & Ors., 2003(2) CHN 460 , a Division Bench of this Court held that in view of the provisions of sub-section (2) of section 136 of the Act, which specifically provides that the provisions of the Limitation Act, 1963 shall not apply to an appeal preferred under sub-section (1) of section 136, the Tribunal constituted under the Act has no jurisdiction to condone the delay in preferring an appeal under section 136 (1) of the Act which, read with item No. 11 in the Third Schedule to the Act, provides limitation period of one month from the date on which the order, decision or award of the Arbitrator under section 96 of the Act is communicated. 3. In Contai Cooperative Bank Ltd. & Anr. vs. Sagar Food Products & Ors., 2005(1) WBLR (Cal) 288, another Division Bench of this Court held that the period spent for obtaining certified copy of the award is to be excluded in calculating the period of limitation. 4. At the outset, it needs to be noted that in Contai Cooperative Bank case (supra) the Division Bench rendering the said decision did take into consideration the previous decision in Egra Thana Cooperative Agricultural Marketing Society case (supra) and, therefore, as per the settled legal position, the learned Single Judge was bound by the view taken by the subsequent Division Bench in Contai Cooperative Bank case. 5. On a careful reading of both the decisions it clearly transpires that Egra Thana Cooperative Agricultural Marketing Society Ltd. case (supra) was concerned with the fact situation where the appellant had made an application under section 5 of the Limitation Act for condonation of delay. 5. On a careful reading of both the decisions it clearly transpires that Egra Thana Cooperative Agricultural Marketing Society Ltd. case (supra) was concerned with the fact situation where the appellant had made an application under section 5 of the Limitation Act for condonation of delay. In that case the condonation was NOT prayed for on the ground that if the period requisite for obtaining certified copy of the award challenged in the appeal was excluded, then the appeal was preferred within the limitation period of one month as prescribed in the Third Schedule (Item No. 11) of the Act. On the other hand, in the Contai Cooperative Bank case (supra), the appellant had contended that if the period requisite for obtainil1g certified copy was excluded, the appeal was preferred within the limitation period of one month, and a Division Bench of this Court accepted the said contention after analyzing the relevant provisions of the Act and the Rules. 6. We may now refer to the relevant statutory provisions. Section 136 of the Act reads as under:- “S.136. Appeal.-(1) An appeal shall lie from an order shown in column 2, to the authority shown in column 3, and within the period shown in column 4, of the Third Schedule to this Act. (2) The provisions of the Limitation Act, 1963 (36 of 1963), shall not apply to an appeal referred in sub-section (1)……” Item No. 11 in the Third Schedule to the Act, reads as:- THIRD SCHEDULE Appeals Sl. No. Appeal lies By whom appeal Authority to whom Period of limitation Against may be preferred appeal shall lie 11 An order, Any person To the Cooperative One month from the decision or aggrieved. Tribunal having date on which the award under jurisdiction. order, decision or section 96 award is communicated The relevant provisions of the West Bengal Cooperative Societies Rules, 1987 read as under: Rule 227(4)(d) provides that every memorandum of appeal shall be accompanied by a certified copy of the award or the order complained of. Rule 181 lays down the procedure for applying for and supplying certified copy in the following terms:- “181. Rule 181 lays down the procedure for applying for and supplying certified copy in the following terms:- “181. Certified copy.-(1) A certified copy of an order, decision or award or evidence of the parties shall, on application, be given to a party by the Registrar duly certified by him on payment of a fee of one rupee for every foolscap page or part thereof typed in double spaces. The fee shall be paid in Court-fee stamps. (2) On receipt of an application for certified copy of order, decision or award, the applicant shall forthwith, or on a date to be given to him instantly, be intimated about the requisites required to be supplied by him. (3) If the requisites are not supplied within seven days from the date of intimation, the application for certified copy shall be rejected and thereafter the party may obtain certified copy on filing fresh application. (4) The certified copy shall be supplied, as far as practicable, within two weeks from the date on which the requisites are supplied. (5) It will be for the party applying for certified copy to collect the same and if he wants it to be sent by post, then it shall be deemed to have been delivered to him on the date on which the certified copy is sent by post.” 7. Thus, section 136 of the Act read with Item No. 11 in the Third Schedule to the Act, prescribes the period of limitation for filing appeal to the Tribunal as one month from the date on which the order, decision or award of the Arbitration under section 96 is communicated, without casting any obligation on the Arbitrator to communicate a copy of the award to the parties. On the contrary, the Rules require the aggrieved party to file the memo of appeal before the Tribunal with a certified copy of the award. On a harmonious construction of all the said statutory provisions, the legislative scheme is clear that since the aggrieved party is given time of one month from the date of communication of the order, unless the party actually receives a copy of the award, no appeal can be filed before the Tribunal. 8. At the hearing before us also, it is not the case of the respondents that the award was communicated by the Arbitrator. 8. At the hearing before us also, it is not the case of the respondents that the award was communicated by the Arbitrator. It is the common case of the parties that award was pronounced by the Arbitrator in presence of the learned Advocates for the parties, but the copy of the award was not given to the learned Advocates for the parties. Hence, the aggrieved party could not have preferred the appeal without first obtaining a certified copy of the award and, therefore, the time required for obtaining a certified copy of the award complained of has to be excluded while computing the period of limitation stipulated in section 136(1) read with the relevant entry in the Third Schedule. 9. We are conscious that sub-section (2) of section 136 expressly provides that the provisions of the Limitation Act, 1963 shall not apply to appeals under sub-section (1) thereof and that sub-sections (2) to (4) of section 12 of the Limitation Act, 1963 provide that while computing the period of limitation for an appeal, the time requisite for obtaining certified copy of the judgment and decree/award is to be excluded. However, the view being taken by us does not emanate from the provisions of section 12 of the Limitation Act, but from the language of the relevant entry to the Third Schedule to the West Bengal Cooperative Societies Act, 1983 wherein the limitation begins to run from the date of communication of the order and from the language of Rules 227 (4) (d) and 181 of the West Bengal Cooperative Societies Rules, 1987. 10. We may at this stage also refer to the provisions of section 4 of the Limitation Act which read as under: "4. Expiry of prescribed period when Court is closed.-Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens." If the last date on which the period of limitation as stipulated in section 136(1) of the West Bengal Cooperative Societies Act, 1983 expires, happens to be a Sunday and the appeal is filed on the next working day, i.e., Monday, can the respondent in the appeal be permitted to contend that the appeal should be treated as time barred? He may argue that otherwise section 4 of the Limitation Act will have to be treated as applicable. The Tribunal will hold that the appeal is filed within time, NOT because section 4 of the Limitation Act applies, but because section 12 of the Bengal General Clauses Act, 1899 provides that where any proceeding is directed or allowed to be done or taken in any Court or office within a prescribed period, then if the Court or office is closed on the last date of the prescribed period, the proceeding shall be considered as taken in due time, if it is taken on the next day afterwards on which the Court or office is open. This is nothing but embodiment of a rule of common sense. 11. Similarly, while computing the period of limitation for any appeal, the day from which such period is to be reckoned, (e.g., the date of communication of the award) is to be excluded, not by virtue of sub-section (1) of section 12 of the Limitation Act, but because section 11 of the Bengal General Clauses Act, 1899, embodying a rule of interpretation, provides that it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word "from", and, for the purpose of including the last in a series of days or any other period of time, to use the word "to". These principles are, thus, general principles of computing the period of limitation which principles are otherwise also available, even when the provisions of the Limitation Act, 1963 do not apply. 12. The decision in Contai Cooperative Bank was rendered after taking into consideration the Egra Thana Cooperative case. The Contai Cooperative Bank case provides that the period of limitation as provided in sub-section (1) of section 136 read with the relevant entry to the Third Schedule to the Act is to be computed in light of Rule 227(4)(d) read with Rule 181 of the Rules. On the other hand, Egra Thana Cooperative-Agricultural Marketing Society case deals with a situation where the appeal is found to have been filed beyond the period of limitation as computed in accordance with the principle laid down in Contai Cooperative Bank case. The Tribunal, then, does not have power to condone delay in filing appeal. 13. On the other hand, Egra Thana Cooperative-Agricultural Marketing Society case deals with a situation where the appeal is found to have been filed beyond the period of limitation as computed in accordance with the principle laid down in Contai Cooperative Bank case. The Tribunal, then, does not have power to condone delay in filing appeal. 13. In light of the above discussion, we are of the view that there is no inconsistency between the view taken in Egra Thana Cooperative Agricultural Marketing Society Limited & Ors. (supra) and the view expressed in Contai Cooperative Bank case (supra), which deal with two different fact situations. 14. As far as the case before us is concerned, the award of the Arbitrator was pronounced on 19th March, 2003 in presence of the learned Advocates for the parties. Thereafter, the petitioner made an application for certified copy on 21st February, 2003. The requisites were notified to the petitioner on 6th March, 2003 and the petitioner supplied the requisites within the permissible period of two weeks. Certified copy was, thereafter, made ready for delivery on 6th May, 2003 and the petitioner took delivery of the certified copy on 8th May, 2003. However, the appeal under section 136(1) of the Act came to be filed before the Tribunal on 9th June, 2003 and, therefore, even after excluding the period required for obtaining certified copy, the appeal was not filed within the period of one month or thirty days and in the result the appeal was time barred even after excluding the period requisite for obtaining the certified copy. 15. In view of the above discussion, in the fact situation at hand, the decision of the Court in Egra Thana Cooperative Agricultural Marketing Society Ltd. & Ors. (supra) would apply and the Tribunal did not have the jurisdiction to condone the delay in preferring the appeal. The matter is, therefore, remitted back to the learned Single Judge for hearing the petition in accordance with law after proceeding on the basis that the appeal filed by the writ petitioner before the Tribunal under section 136(1) of the Act was barred by the period of limitation by 4 days and the Tribunal does not have the power to condone the delay the power which may be available to other Tribunals under section 5 of the Limitation Act, 1963. 16. 16. Since the writ petition is pending since 2003, the learned Single Judge before whom the matter may be placed, is requested to hear the petition as expeditiously as possible and preferably within a period of two months from the date on which the matter is placed before the learned Single Judge. 17. The reference is answered accordingly in terms of what we have observed in paras 7 to 13 hereinabove. Mohit S. Shah, CJ, Jayanta Kumar Biswas & Indira Banerjee, JJ.: