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Shri Sunit Pramanik Vs. Santipur Industries Co-operative Society Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 966 of 1972
Judge
Reported inAIR1973Cal364,77CWN118
ActsLimitation Act, 1963 - Section 29(2); ;Bengal Co-operative Societies Act, 1940 - Sections 4, 12(2), 134 and 134(1)
AppellantShri Sunit Pramanik
RespondentSantipur Industries Co-operative Society Ltd. and anr.
Appellant AdvocateMahindra Nath Ghose and ;Krishna Dulal Mukherjee, Advs.
Respondent AdvocateK.B. Roy and ;B.C. Chakraborty, Advs.
Excerpt:
- .....of the limitation act lays down inter alia that where any special or local law prescribes for an appeal 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 appeal 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.5. it is clear, therefore, that by reason of sub-section (2) of section 29 of the limitation act of 1963, the period of limitation prescribed by the co-operative societies act, which we have referred to above, shall be.....
Judgment:

Sankar Prasad Mitra, J.

1. This is an application under Article 227 of the Constitution. An Arbitrator (Shri B. Chartterjee, Inspector of Co-operative Societies, Santipur Development Block (Fulia), Nadia), appointed under the provisions of the Bengal Co-operative Societies Act, 1940, gave his judgment and award in Dispute Case No. 108N of 1969-70 on the 3rd January, 1971. The petitioner's case is that the Arbitrator issued a gist of the award on April 10, 1971.

The petitioner received the said gist on the 16th April, 1971. Then the petitioner applied on the 23rd April, 1971, to the Assistant Registrar of Co-operative Societies, Nadia, for a certified copy of the judgment and award. The Assistant Registrar by a letter dated the 24th August, 1971, requisitioned stamps for supply of the certified copy of the judgment and award. On the following day, namely, the 25th August, 1971, the petitioner deposited the requisite stamps for the certified copy. The petitioner received the certified copy on the 11th September, 1971. The petitioner sent the memorandum of appeal on the 26th September, 1971, to the Assistant Registrar of Co-operative Societies, Nadia. The Puja Vacation intervened thereafter and continued till the 4th October, 1971. The Office of the Assistant Registrar received the memorandum of appeal on the 5th October, 1971.

2. Section 134 of the Bengal Cooperative Societies Act makes provisions for appeals. It runs thus:

'134. (1) An appeal shall lie from an-order shown in column 2 of the Fourth Schedule to the authority shown in column 3 and column 4 thereof.

(2) Save as provided in this Act, no appeal shall lie against any order, decision or award passed in accordance with this Act, and every such order, decision or award shall be final.'

Serial No. 7 in the Fourth Schedule to the Act provides for the appeal we are concerned with in this application. The period of limitation for this appeal is 'one month from the date on which the order, decision or award was communicated to the person aggrieved.'

3. In the instant case, in view of the relevant provisions in the Fourth Schedule, the appeal, on the facts stated by the petitioner, should have been filed within one month of the 16th April, 1971. But the petitioner did not send the memorandum of appeal till the 26th September, 1971. The questions that arise, are whether the petitioner is entitled to exclude the period taken in obtaining a certified copy of the award; and when the office of the Appellate Authority remained closed. If the petitioner had the right to claim exclusions of the said period, the petitioner's appeal was within time. If those rights did not exist, the appeal was barred by limitation.

4. In our opinion, the appeal was not barred. Sub-section (2) of Section 29 of the Limitation Act lays down inter alia that where any special or local law prescribes for an appeal 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 appeal 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.

5. It is clear, therefore, that by reason of Sub-section (2) of Section 29 of the Limitation Act of 1963, the period of limitation prescribed by the Co-operative Societies Act, which we have referred to above, shall be deemed to be a period of limitation prescribed by the Limitation Act. And the provisions of Sections 4 to 24 of the Limitation Act would apply to the said period.

6. Now Section, 4 of the Limitation Act says inter alia that where the prescribed period for any appeal expires on a day when the Court is closed, the appeal may be preferred on the day when the Court re-opens. In the Explanation to this section, it is stated that a Court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.

7. When we apply these provisions of Section 4 to the facts before us, we find that the period between the 26th of September, 1971 and the 4th of October, 1971 (both the dates inclusive) was a period when the office of the appellate authority was closed. And the appeal could be preferred on the 5th October, 1971, when the appellate authority's office reopened after the Puja Vacation.

8. We now come to Section 12 of the Limitation Act. Sub-section (2) of this section provides inter alia that in computing the period of limitation for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the order appealed from shall be excluded.

9. In the instant case, the period between the 23rd April, 1971, and the 11th September, 1971, has to be excluded for purposes of computing limitation as the time taken for obtaining a copy of the award.

10. If, therefore, the two periods mentioned above, namely, the period during which the office of the appellate authority was closed and the time taken for obtaining a copy of the award be excluded, then, on the facts pleaded by the petitioner, the petitioner's appeal was within time.

11. Mr. Roy, appearing for the opposite party No. 2, has drawn our attention specifically to the starting point of the period of limitation in this case. He says that time begins to run from the date on which the award is communicated to the person aggrieved. In the present case, according to Mr. Roy, the person aggrieved was present when the award was pronounced. Therefore in his case, time began to run from the 3rd of January, 1971, and, as such, the appeal was barred by limitation.

12. Mr. Roy, in support of his argument also drew our attention to Sub-rule (4)of Rule 125 of the Bengal Co-operative Societies Rules, 1942. This sub-rule reads :

'The award shall be communicated to the parties by--

(a) pronouncement of the award; or

(b) registered post to any party which may be absent on such date.'

13. We are unable to accept this contention of Mr. Roy. In our opinion, there is a clear finding of fact by the Assistant Registrar. Co-operative Societies, Nadia, in his outer date the 18th January, 1972. In this order, it is stated inter alia :

'On receipt of such gist he (the petitioner) knew fully well whether the award was in his favour or against him. If he felt aggrieved he could have fifed an appeal within one month from 16-4-1971, stating in such appeal petition that he had already applied for a certified copy of the award and that on receipt of such certified copy he would put forth grounds or further grounds for appeal..,.........'

14. On the facts, therefore, the Assistant Registrar finds that the gist of the award was communicated to the petitioner only on the 16th April, 1971, and his time to prefer an appeal began to run from that date. Moreover, in paragraph 22 of the petition, which is verified as true to the petitioner's knowledge and information, the petitioner repeats that he received the gist of the award on the 16th April, 1971. Then, in Annexure 'C' to the petition, we find a copy of a letter addressed by the petitioner to the Assistant Registrar, Co-operative Societies, Nadia. It is a letter dated the 23rd April, 1971. In this letter the petitioner states inter alia that the Arbitrator 'did neither make an award immediately upon the conclusion of hearing of the case on 3-1-1971 nor fix a date and place of delivery of award in accordance with Rule 125 (3) of the Co-operative Societies Rules, 1942'. Incidentally, Sub-rule (3) of Rule 125, which the petitioner refers to, provides:

'If no award is made immediately upon the conclusion of the hearing of the parties the arbitrator shall fix the date, and place of delivery of the award and shall, except for reasons to be recorded in writing, deliver the award on the date so fixed.'

15. In this letter of the 23rd April, 1971, the petitioner specifically alleges that the Arbitrator did not make his award in the presence of the parties on the conclusion of the hearing. The Assistant Registrar replied to this letter on the 23rd August, 1971. A copy of this reply has been set out in Annexure 'D' to the petition. In this reply, the Assistant Registrar does not controvert the petitioner's statement that the Arbitrator did not make any award in the presence of the parties. On the contrary, he asked the petitioner to send the requisite court-fee for a certified copy of the award which, incidentally, the petitioner applied for in hisletter of the 23rd April, 1971. In Annexure 'D' to the petition, there is a copy of the petitioner's letter of the 25th August, 1971, to the Assistant Registrar enclosing the requisite court-fee and four sheets of demi paper.

16. We have also looked into the relevant order-sheets before the Arbitrator. On examining these order-sheets, we find that on the 17th November, 1970, there was a hearing before the Arbitrator. The petitioner was present at the hearing and his signature had been obtained against the minutes of that date. But there is no signature of the petitioner against the minutes of the 3rd January, 1971, when the award is alleged to have been made. This also shows that the petitioner was not present when the award was actually pronounced.

17. On the materials on record, therefore, we cannot come to the conclusion that the award was made in the petitioner's presence and was, therefore, communicated to him on the date it was made. This contention of Mr. Roy is, therefore, overruled.

18. Mr. Roy then argued that Subsection (2) of Section 134 of the Co-operative Societies Act prescribes that no appeal shall lie 'save as provided in this Act.' His contention is that the appeal in the instant case could be preferred only within one month from the date on which the award was communicated to the petitioner. In other words, the provisions of Sub-section (2) of Section 134 debarred the invocation of any of the provisions of the Limitation Act to the Fourth Schedule to the Co-operative Societies Act.

19. Here, again, we do not agree with Counsel for opposite party No. 2. All that Sub-section (2) of Section 134 of the Co-operative Societies Act says is that only the appeals specified in the Fourth Schedule to the Act would lie and no other appeal would lie against any order, decision or award. In the Fourth Schedule, it is provided that eleven different kinds of orders are appelable orders. What Sub-section (2) of Section 134 says is that, apart from these eleven types of orders no other order is appealable. This Sub-section has nothing to do with the periods of limitation prescribed in the Fourth Schedule. This contention of Mr. Roy is, therefore, also overruled.

20. In the result, this Rule is made absolute and the impugned order of the Assistant Registrar is set aside. The Assistant Registrar is directed to entertain the appeal and decide it on its merits.

21. There will be no order as to costs.

Janah, J.

22. I agree.


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