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2013 DIGILAW 820 (CAL)

Himadri Roy v. Contai Co-operative Bank Ltd.

2013-11-08

ASIM KUMAR MONDAL

body2013
Judgment : Asim Kumar Mondal, J. This is an application under Article 227 of the Constitution of India challenging an order and judgment being Order No. 17 dated January 11th, 2012 passed by the learned Judge, West Bengal Co-operative Tribunal at Calcutta in an unregistered appeal No. 13 of 2009 arising out of judgement and award dated February 10th, 2009 passed by the learned Arbitrator, Co-operative Development Officer, Purba Midnapur – II, Contai in A.R.C.S. Dispute Case No. 116-2008-09. The proforma opposite parties No. 2 Smt. Minati Jana, No. 3 Munmun Jana and No. 4 Amit Kumar Jana applied for loan to purchase a luxury bus before the opposite party No. 1 Contai Cooperative Bank Ltd. Purba Midnapur. It is alleged that the loanee failed to pay the loan amount to the opposite party No. 1 Contai Cooperative Bank Ltd. in accordance with the terms and conditions of the said loan sanctioned. The opposite party No. 1 thereafter filed a dispute case being No. 116 of 2008-2009 before the Arbitrator, Cooperative Development Officer, Purba Midnapur – II. The petitioner No. 1 Himadri Roy, petitioner No. 2 Smt. Chandra Roy and petitioner No. 3 Sri Bhaskar Mitra stood as a guarantor of the said loan. The fact of non-payment of loan amount in time before the opposite party No. 1 was beyond the knowledge of the petitioner. No correspondences were made either by the debtor or by the bank. On receipt of notice from learned arbitrator the petitioners No. 1 and 3 namely Himadri Roy and Sri Bhaskar Mitra executed a power of attorney in favour of petitioner No. 2 Smt. Chandra Roy appointing to deal with the aforesaid case, revision appeal or execution case etc. The petitioner No. 1 Himadri Roy resides in Dubai for his job and petitioner NO. 3 resides at Bagnan and busy in his job. The petitioner No. 2 Smt. Chandra Roy became very much ill and completely unable to look after the matter as such she could not appear before the learned arbitrator on October 20th, 2012. She sent a letter on October 3rd, 2008 on behalf of the petitioner including herself and the said letter was received by the arbitrator. The petitioner No. 2 Smt. Chandra Roy became very much ill and completely unable to look after the matter as such she could not appear before the learned arbitrator on October 20th, 2012. She sent a letter on October 3rd, 2008 on behalf of the petitioner including herself and the said letter was received by the arbitrator. On October 15th, 2008 the petitioner No. 2 by the aforesaid letter requested the learned arbitrator to drop the proceeding as they were dark about the seizure of the Luxury Bus and also sale of the same and the non-payment of EMIS and/or dues of the bank till receiving the summons of the case. The learned Arbitrator in spite of receipt of the aforesaid letter passed an ex-parte order of award on February 10th, 2009 and petitioners came to know about such award as and when they received the copy of the award in the third week of February, 2009. Thereafter in the fourth week of February, 2009 the petitioner No. 2 Smt. Chandra Roy contacted her lawyer in the first week of March, 2009 in order to prepare and to file appeal. The petitioner No. 2 in the meantime felt seriously ill and advised by the doctor not to move any where and to take complete bed rest for two months. As a result the petitioner could not contact with her lawyer and finally after recovery from illness she preferred the appeal before the learned Tribunal along with an application under Section 5 of the Limitation Act which was registered as un-registered appeal No. 13 of 2009. The learned Tribunal after hearing both sides has been pleased to dismiss the unregistered appeal on contest without cost vide order dated January 11th, 2012. Being aggrieved by and dissatisfied with the said order, the appellants have preferred the present revisional application on the grounds that the learned Tribunal was erred in holding that no Co-operative Societies and the Tribunal does not have the power to condone delay. Further that the learned tribunal also erred in holding that Limitation Act has no application in West Bengal Co-operative Societies Act. Further that the learned Tribunal failed to appreciate that Tribunal has got power as an appellate Court as like as the Civil Court under Order 41 Rule 3A of the Civil Procedure Code. Further that the learned tribunal also erred in holding that Limitation Act has no application in West Bengal Co-operative Societies Act. Further that the learned Tribunal failed to appreciate that Tribunal has got power as an appellate Court as like as the Civil Court under Order 41 Rule 3A of the Civil Procedure Code. Finally as alleged that the learned Tribunal failed to consider the extreme unavoidable circumstances for which the appeal could not file after expiry of stipulated period. Mr. Milan Nandy appeared on behalf of the petitioners and submits that as the Limitation Act, 1963 applies so far as the Tribunal concerned under the Co-operative Societies Act, the Tribunals are constituted to hear the appeals and as such should have also the power to condone the delay in terms of the provisions of Order 41 Rule 3A of Civil Procedure Code such power has been sought to be curtailed under Section 136(2) of the West Bengal Co-operative Societie4s Act, 1983. It is also argued and submitted that when two inconsistent provisions are in the statute, such interpretation as would finally decide the maintainability of action in appeal should be accepted. Learned Tribunal failed to exercise its discretionary power to condone the delay for filing an appeal before the Tribunal under the provisions of Section 146 and 147 of the Cooperative Societies Act. It is also argued and submitted that the learned Tribunal has failed to appreciate that the situation was beyond control of the appellant and as such the application for certified copy could not file earlier and though it was ready for delivery on August 14th, 2009 but same could not collected before September 7th, 2009. Mr. Nandy also submits that learned Tribunal has passed the impugned order whimsically and mechanically without applying his judicial mind. So, the impugned order should be considered as wholly illegal, improper and incorrect and as such warrant interference by this Court. In reply Mr. Asim Kr. Roy appeared on behalf of the opposite parties submits that the Co-operative Tribunal has no power to condone delay in preferring an appeal which has constituted under a special act and as such the provisions of special law could prevail over the general rule law in case of inconsistency. It is also submitted that the Limitation Act would have no application besides, having been specially executed by the statute. Mr. It is also submitted that the Limitation Act would have no application besides, having been specially executed by the statute. Mr. Roy relied upon a decision of Division Bench of this Court in C.O. No. 971 of 2000 with C.O. No. 4 of 2001 with C.O. No. 5 of 2001 with C.A.N. NO. 2618 of 2001 and C.A.N. No. 2619 of 2001 reported in 2003(2) CHN 460 . In the instant revisional application the moot question is as it appears from the submissions of the learned counsels for the parties that as to whether there is any application of provisions under Section 5 of the Limitation Act in an appeal preferred under the provisions of West Bengal Co-operative Societies Act before the West Bengal Co-operative Tribunal. It appears from the citation relied upon by the learned Counsel Mr. Roy appearing on behalf of the opposite parties that there is a difference of opinion of two Hon’ble Judges of this Court and the matter was referred to the Hon’ble Division Bench in dissolving the differences after considering the submissions advanced by learned counsels for the parties as well as in view of the provisions under Section 135 (2) of the West Bengal Co-operative Societies Act of the provisions under Order 41 Rule 3A of the Civil procedure Code. The Hon’ble Division Bench of this Court held that the provisions of Order 41 Rule 3A of the Civil Procedure Code has confer no power to appellate Court to condone the delay in preferring an appeal and the power to condone the delay in preferring the appeal does not emanate from the provisions of Order 41 Rule 3A of the Code but from the provisions of Section 5 of the Limitation Act. Further that the Hon’ble Division Bench of this Court held in said case that the provisions of Section 135(2) of the Cooperative Societies Act has confers no power to the learned Tribunal as the appellate court has provide in Order 41 of the code, but in view of the provisions of Section 136(2) of the said act it appears to have been intention of the legislature that the provisions of the Limitation Act, 1963 could not apply a proceeding before the learned Tribunal. On plain reading of Section 147(1) of the West Bengal Co-operative Society Act, 2006 an appeal shall lie as shown in Column No. 2 to the authority shown in column NO. 4 within the period in column NO. 5 of the third schedule of this Act. (2) The provisions of the Limitation Act, 1963 shall not apply to an appeal preferred in Sub-section (1) and (3) when an appeal is presented after the expiry of the period of limitation specified there in the third schedule to this Act. It shall be accompanied with an application for condonation of delay setting forth the facts on which the appellant relates to specify the appellate authority that he had sufficient cause for not preferring an appeal within such time. If, after hearing the counsels the appellate authority is satisfied that the appellants had sufficient cause for not preferring the appeal within such time then it may condone the delay and may proceed to deal with the appeal. So, in view of the provisions as referred above it is clear that the co-operative tribunal has got no power to entertain an application under Section 5 of the Limitation Act in preferring the appeal presented after the expiry of period of limitation specified in the act. In the instant case, the present appeal was preferred under the provisions of third schedule serial No. 8 that is an order, decision or award under Section 103 before the authority under column No. 4 i.e. the cooperative tribunal and the period of limitation under column NO. 5 is one month from the date on which certified copy of the order, decision or award is applied provided that the period of delay in filing an application for certified copy shall be taken into account in computing the period of one month. Admittedly the appeal was preferred after six months of expiry of period of limitation. The Tribunal has held that there is a huge delay in filing the memo of appeal. Nothing transferred in the impugned judgment as well as in the present revisional application as to the facts and circumstances of the illness alleged in the petition supported by any documents which could established the extreme necessity for a favourable consideration of the application accepting the explanation of delay. Nothing transferred in the impugned judgment as well as in the present revisional application as to the facts and circumstances of the illness alleged in the petition supported by any documents which could established the extreme necessity for a favourable consideration of the application accepting the explanation of delay. It is the settled law that there is no application of the provisions of Section 5 of the Limitation Act for preferring any appeal before co-operative Tribunal but Tribunal may consider after hearing counsels as to whether the facts and circumstances explaining the delay is satisfactory and sufficient for not preferring the appeal in time. The power of co-operative Tribunals under section 147(3) of the Act is a discretionary power and as there is a huge delay in preferring the appeal and such has not been accepted by the learned Tribunal, the order impugned cannot be said to be illegal, improper or incorrect. Considering all aspects and also considering the submissions of the learned counsels for the parties and as well as the facts and circumstances of the case of the petitioner and the provisions under Sections 135, 136(2), 146 as well as 147, I have no hesitation to hold that there is nothing to interfere into the order impugned. As a result the revisional application is liable to be dismissed having no merits. Hence the revisional application is dismissed without cost. The order impugned remain uninterfered.