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Nirmal Kumar Banerjee Vs. Panihati Co-operative Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1408 of 1973
Judge
Reported inAIR1977Cal246,81CWN453
ActsWest Bengal Co-operative Societies Act, 1940 - Section 133A(2); ;Limitation Act, 1963 - Sections 12(2) and 29(2)
AppellantNirmal Kumar Banerjee
RespondentPanihati Co-operative Bank Ltd. and ors.
Appellant AdvocateK.P. Sinha and ;Parimal Das, Advs.;G.N. Roy and ;Biren Chakraborty, Advs.
Respondent AdvocateBhabesh Ch. Mitter and ;J. Islam, Advs. for Opposite Party No. 1
Cases ReferredJijibhoy N.. Surty v. T. S. Chettyar
Excerpt:
- .....whereof were applicable to the case that subject to the provisions of lim. act in force at the time, no appeal shall be filed before the board after the expiry of 90 days. it was held that in hearing an appeal under the act, the court must guide itself by the provisions of the lim. act in force for extension and computation of the period of limitation. the court considered the provisions of section 29 (2) of the lim. act, 1908 and held that this section goes to show that unless excluded by the jagirs act or ryotwari act, section 12 of the lim. act would be applicable to appeals filed before the board of revenue under any of the provisions of these acts. mr. sinha also referred to the case of d. p. mishra v. kamal narayan sharma, reported in : [1971]1scr8 in which the court was.....
Judgment:

Salil Kumar Datta, J.

1. This Rule is directed against order dated 20-7-1972 passed by the Assistant Registrar of Co-operative Societies, 24-Parganas (North) as the Co-operative Tribunal rejecting the petitioner's appeal on the ground of limitation. It appears that there were certain disputes between the petitioner and others and the co-operative bank and an award was passed by a Board of Arbitrators in dispute case No. 342 of 1969-70 in respect of the said dispute. The award was made on 11-12-1971 and was communicated to the petitioner on 21-12-1971. The appeal petition against the award was filed on 16-2-1972. The appellate authority, the Co-operative Tribunal, was of the opinion that under Section 134 of the Bengal Co-operative Societies Act, 1940 read with the Fourth Schedule thereof an appeal was to be filed within a month from the date of communication of the award to the person aggrieved. As this appeal was filed out of time beyond one month from date of communication, it was barred by limitation and was summarily rejected. This Rule is against this order. After the dismissal of the appeal, the petitioner filed a review petition against the order to the Government of West Bengal and the same was also rejected on March 30/31, 1973 by the Deputy Secretary, Co-operative Department of the Government. Both these orders are the subject-matter of the challenge in this Rule.

2. Mr. Sinha appearing for the petitioner submitted that the appellate authority was in error in dismissing the application on the ground of limitation as the petitioner had applied for certified copy of the reasons of the award on 27-12-1971 and the copies were available to him on 24-1-1972. Accordingly, the petitioner was entitled to an exclusion of the time so taken under provision of Section 12(2) of the Lim. Act, 1963. There is no dispute that if the time for copy is taken into account, the appeal would be in time.

3. The first consideration is whether the provisions of Lim. Act, 1963 apply to proceedings before tribunals under the Act. Mr. Mitter appearing for the cooperative bank has referred to various decisions in support of his contention that the provisions of Lim. Act ihave no application to the proceeding under the Bengal Co-operative Societies Act. He has referred to the decision in K. Venkate-swara Rao v. Bekkam Narasimha Reddy reported in : [1969]1SCR679 in which the court held that the Lim. Act cannot apply to proceedings like an election petition in the High Court inasmuch as the Representation of the People Act is a complete and self contained Code which does not admit of the introduction of the principles or the provisions of law contained in the Lim. Act. Lim. Act, 1963 states in its preamble that the Act is for consolidation and amendment of the law of limitation of suits and other proceedings and for other purposes connected therewith. Section 29(2) of the Act is in the following terms :

'Where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.'

4. On perusal, the section would indicate that where a provision of the period of limitation prescribed in any special or local law was different from the period under the Lim. Act, such period shall be deemed to be the provision for the purpose of limitation as if such period was the period prescribed by the Schedule to the Act. It further provides that for the purpose of determining any period prescribed for any suit, appeal or application by any specialor local law, Sections 4 to 24 inclusive shall apply, only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Accordingly, if there is any specific provision excluding the operation of those sections in any local or special law those sections will cease to apply to matters in connection therewith. It was accordingly held in the decision of K. V. Rao that in view of the provisions of Section 86(1) of the Representation of the People Act, the provi-. sions of the Lim. Act would not be applicable.

5. Mr. Mitter relied on the case of Nityanand v. Life Insurance Corporation of India, reported in : (1969)IILLJ711SC where the Court was considering the scope of Article 137 of the Lim. Act, 1963. It was laid down there that this Article only contemplated applications before the court as it was included in the Third Division of the Schedule to the Lim. Act of 1963 which related to applications only before the Court. Accordingly, provisions of Sections 4 and 5 of the Lim. Act were inapplicable to such applications before Labour Courts and the Scheme of the Lim. Act is that it only deals with applications to Courts, Mr. Mitter also referred to the decision in Bando Bana.ii v. Bhaskar Balaji, AIR 1972 Mys 311 in which it was held that in order to attract Section 29(2), the proceedings initiated under a special or local law must also be those which are legally capable of being instituted before a court only. In coming to this decision, the court relied on the decision in Joshi's case, we have just referred to. The next case referred to is Capstan Meter (India) Ltd. v. State of Rajasthan, reported in AIR 1974 Raj 63. in which it was held that, in an application under Section 18 of the Land Acquisition Act, provisions of Section 12(2) have no application because it was neither an appeal nor an application for review. In R. T. Chinnavenkatesh v. Senior Regional Transport Officer and Licencing Officer of Mysore-4, : AIR1976Kant69 , it was held that Section 29(2) of the Lim. Act does not say that the provisions of the Lim. Act would be applicable to appeals filed under a taxing statute. Hence it is not possible to apply by analogy the principle underlying Section 5 of the Lim. Act to appeals filed under Section 15 of the Karnataka Motor Vehicles Taxation Act (35 of 1957). In this decision, the court found that the provisions of the Lim. Act would be applicable only if it was stated in the relevant section that it would apply to taxing statute.In Lakshmi Chand v. State of Rajasthan, , it was held that the provisions of Section 5 of the Lim. Act would be applicable only to appeals and applications filed in a court of law within the strict sense of the term and cannot be invoked in cases of applications and appeals presented before the Tribunals which are not courts of law but are statutory bodies performing quasi-judicial functions.

6. Mr. Sinha referred us to the decision in Maloji Rao v. State of Madhya Pradesh reported in : [1969]3SCR901 in which the court condoned the delay in filing the appeal on exclusion of the time taken for obtaining the copy of the judgment. It was provided in Section 34 of the Ryotwari Act provisions whereof were applicable to the case that subject to the provisions of Lim. Act in force at the time, no appeal shall be filed before the Board after the expiry of 90 days. It was held that in hearing an appeal under the Act, the court must guide itself by the provisions of the Lim. Act in force for extension and computation of the period of limitation. The Court considered the provisions of Section 29 (2) of the Lim. Act, 1908 and held that this section goes to show that unless excluded by the Jagirs Act or Ryotwari Act, Section 12 of the Lim. Act would be applicable to appeals filed before the Board of Revenue under any of the provisions of these Acts. Mr. Sinha also referred to the case of D. P. Mishra v. Kamal Narayan Sharma, reported in : [1971]1SCR8 in which the court was considering a case under the Representation of the People Act. It was held there that the period of limitation provided therein was a special law within the meaning of Section 29(2) and the period when the court was closed could be excluded in computing the period of limitation prescribed in Section 177-A when the High Court is to hear the appeal as an appeal from original decree. In the case of Magnuram v. Delhi Municipality, reported in : 1976CriLJ179 , it was held that under Section 29(2) of the Lim. Act, 1963, unless there is express exclusion Section 5 could be availed of for the purpose of extending the period of limitation by special or local law, if there was sufficient cause for not presenting the application in Court within the period of limitation. In Sunit Paramanik v. Santipur Industrial Co-operative Society Ltd., : AIR1973Cal364 a bench decision of this Court considered Section 29(2) of the Lim. Act, 1963. It was held that by reason of the provisions of Sub-section (2) of Section 29 of the Lim. Act, 1963, the period of limitation prescribed by the Co-operative Societies Act is to be deemed to be the period of limitation prescribed by the Lim. Act and the provisions of Sections 4 to 24 would apply to the said period. In Treasury Building Co-operative Society Ltd. v. Sukumar Ganguly, (1975) 79 Cal WN 573, it was held that provisions of Section 29(2) of the Lim. Act, 1963 would apply to the period of limitation prescribed under the Bengal Co-operative Societies Act and the provisions of Sections 4 to 34 of the Lim. Act will be applicable for computing the period of limitation in maintaining a suit under the Co-operative Societies Act.

7. A review of the decisions indicate that the provisions of the Lim. Act, 1963 are applicable to suits, appeals and applications before the courts. These provisions in respect of the period of limitation can be modified by any special or local law for such proceedings before any court and unless expressly excluded, the provisions of Sections 4 to 24 inclusive will be applicable in all these proceedings. In respect of proceedings before the Tribunals and authorities other than courts, the provisions of the Lim. Act would be applicable if they are expressly or implied-ly extended to such proceeding, by the special or local law. Under Section 29(2), of the Lim. Act, 1963, the provisions of Section 3 will apply with such modifications as may be provided in such special or local law and unless expressly excluded the provisions of Sections 4 to 24 inclusive shall also apply to such proceedings.

8. Under the provisions of Section 133-A (2) of the Bengal Co-operative Societies Act, 1940 the Tribunal shall hear the appeals under the Act as specified in its Sch. 4 and shall exercise all the powers conferred under the appellate court by Order 41 in the First Schedule to the C. P. C. In respect of such appeals the Tribunal called the Co-operative Tribunal, in exercising the powers of the appellate court, will be governed by the provisions of the Lim. Act which are applicable to courts and accordingly Section 29(2) of the said Act in respect of the provisions relating to appeals will be applicable when such application has not been expressly excluded by the Bengal Co-operative Societies Act save as regards the period of limitation for filing the appeal. The Tribunal accordingly will have the power to and will entertain an appeal subject to the provisions of Section 12(2) of the Lim. Act, 1963 excluding the period for obtaining copy of the aware and its reasons sought to be apoealec from. The Supreme Court also held thatwhen the Lim. Act has been made applicable, the provisions under Section 29(2), unless otherwise excluded, shall be applicable to tribunals like the Board of Revenue as was held in the decision in Maloji Rao's case reported in : [1969]3SCR901 . For all these reasons, we accept the contention raised by Mr. Sinha and hold that the provisions of Section 29(2) would be applicable to appeals under the West Bengal Co-operative Societies Act, 1940 also as held in Sunit Pramanik's case : AIR1973Cal364 .

9. Mr. Mitter has next contended that there was no rule that certified copy of the reasons of the award was to be annexed with the Memorandum of Appeal. Accordingly, the petitioner is not entitled to avail of the time that was required for obtaining the certified copy. It may be that the certified copy is not required to be filed along with the appeal. But when reasons for the award have been given, a person aggrieved is entitled to know the findings against him to consider Ms future cour.se of action whether to file an appeal or other steps should be taken and, for such purpose, copy of the reasons was necessary to him which could only be obtained from the certified copy thereof. It was held Jijibhoy N.. Surty v. T. S. Chettyar, 32 Cal WN 845 : (AIR 1928 PC 103), by the Privy Council that Section 12 of the Lim. Act is unrestricted in its scope and is a positive enactment. It does not make the exclusion of the time requisite for obtaining the certified copies of the judgment and decree dependent upon these documents being required to be annexed to the Memorandum of Appeal by the rules of the C. P. C. or the rules as amended by the High Court. In computing the period of limitation therefore such time shall always be excluded whether these documents are necessary to the presentation of the appeal or not. This ruling conclusively lays down that whether it is necessary that certified copies of the reasons of the award should be annexed to the Memorandum of Appeal or not, time requisite for obtaining the certified copies of these documents shall have to be excluded as plainly provided in Section 12(2).

10. Mr. Mitter has further contended that reasons of the award do not form any part of the award and, accordingly, the time taken for obtaining the certified copy thereof should not be excluded from computation of the period of limitation. According to Mr. Mitter, it was not necessary for an aggrieved party to look intothe reasons that might be the basis of the award. He could simply file an appeal by stating that he was aggrieved by the award. This contention in our opinion, cannot be accepted by us, as it should always be open to the aggrieved party to know the reasons on which some findings are arrived at against him. Accordingly, for all these reasons, we are of the view that the time requisite for obtaining the certified copy of the entire award should be excluded for computing the period of limitation under Section 12(2) of the Lim. Act in respect of an appeal under the Bengal Co-operative Societies Act, 1940.

11. As we have already indicated, there is no dispute that if such time is taken into consideration, the appeal is well within time, as provided in Section 134 read with 4th Schedule, Item 7 of the Bengal Co-operative Societies Act, 1940. The appellate authority was, therefore, in error in exercise of its jurisdiction in rejecting the appeal on the ground of limitation.

12. For all these reasons, the impugned order of the Assistant Registrar rejecting the appeal cannot be sustained and is set aside. The other consequential orders are also set aside as they are based on the order rejecting the Memorandum of Appeal.

13. The Rule is, accordingly, made absolute. We direct that the appeal be registered and be disposed of in 'accordance with law. There will be no order as to costs. Let the records be sent down at once.

H.N. Sen, J.

14. I agree.


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