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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2618 OF 2008
The Abhyudaya Co-operative Bank Ltd. ....Petitioner
Versus
State of Maharashtra & Ors. ....R espondents
Mr.Vishal Ghosalkar for the Petitioner.
Mr.Milind More, A. G. P. for Respondent Nos.1 and 3.
Mr.M. C. Shah with Mr.Satyajeet Mirajkar for Respondent Nos.4,
6 and 7.
Mr.A. P. Vanarse for Respondent No.5(a) in Writ Petition No.2618
of 2008.
CORAM : S.J. VAZIFDAR, J.
DATED : 4TH APRIL, 2009.
ORAL JUDGMENT :
1. In 1964 the petitioner was registered under the
Maharashtra Co-Operative Societies Act, 1960 (MCS Act). On
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11.1.2007 the petitioner was converted into a multi State
co-operative society.
Respondent nos. 2 and 3 are the Assistant
Registrar co-operative societies and the Divisional Joint Registrar
co-operative societies respectively under the MCS Act.
Respondent no.4, Mrs.Seema Ramesh Gharage is the
principal debtor who had availed of facilities from the petitioner.
Original respondent no.5 and respondent nos.6 and 7 are sureties
in respect of the loan advanced by the petitioner to respondent no
4. Respondent nos. 5(a) to (d) are the heirs of original respondent
no.5.
2. By an order dated 11.7.2006 the Assistant Registrar
Co-operative Societies, respondent no.2 dismissed the petitioners
application for a recovery certificate under section 101 of the MCS
Act. The Petitioner challenged this order by filing a revision
application under section 154 of the MCS Act. This application
was rejected by the impugned order. By the impugned order dated
14.8.2008 the Divisional Joint Registrar, respondent no. 3 held
that he is not empowered to entertain and decide matters
pertaining to any multi State co-operative society. He therefore
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dismissed the petitioners application for revision under section 154
of the MCS Act for want of jurisdiction. This order was based on a
judgment of a Division Bench of this court which I will refer to later.
3. The case in a nutshell is this. In 1964 the petitioner
was registered under the MCS Act. During the subsistence of this
registration the petitioner filed recovery proceedings under section
101 of the MCS Act against respondent nos. 4 to 7 and the same
having been rejected by the second respondent, the petitioner filed
an application for review under section 154 of that Act. However
on 11.1.2007 during the pendency of the revision application, the
petitioner was converted into a multi State co-operative society
within the meaning of the expression in the Multi-State
Co-operative Societies Act,2002 (Multi-State Act). Thereupon the
petitioner stood registered under the Multi-State Act and its
registration under the MCS Act was cancelled. In view thereof
respondents no 3 rejected the petitioners revision application on
the ground that the authorities under the MCS Act did not have
jurisdiction to decide proceedings in respect of societies registered
under the Multi-State Act.
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4. In terms of a sanction letter dated 10.4.2001 the
petitioner granted respondent no.4 a cash credit facility of
Rs.50,00,000. To secure the due repayment of the said loan
respondents no.4 hypothecated various goods in favour of the
petitioner ; Respondent nos.4 and 7 executed a memorandum of
equitable mortgage in respect of certain immovable properties and
Respondent nos.4 to 7 also executed a demand promissory note
and other documents undertaking the responsibility to repay the
said money jointly and/or severally.
On 10.11.2004 the petitioner filed recovery proceedings
under section 101 of the Maharashtra Cooperative Societies Act as
respondent nos.4 to 7 failed and neglected to repay the loan
despite repeated demands. Respondent no.2, the Assistant
Registrar by an order and judgement dated 11.7.2006 rejected the
application. As the only question raised in this petition is one of
jurisdiction it is not necessary to consider the grounds on which this
judgement was based.
On 11.9.2006 the petitioner filed an application for
review under section 154 of the Maharashtra Cooperative Societies
Act.
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On 11.1.2007 the petitioner was converted into a multi-
State co-operative society within the meaning of that expression in
The Multi-State Co-operative Societies Act, 2002. This was
pursuant to section 22 of the Multi-State Act.
On 14.8.2008 respondents no. 3 passed the impugned
order rejecting the petitioners application for review on the ground
that the petitioner having been converted into a multi-
State co-operative society prior to the date of the judgement he
had no jurisdiction to entertain and decide the review application
which was filed under the MCS Act.
5. The following question therefore falls for consideration:-
Whether the Revisionary Authority has no jurisdiction to
entertain and decide an application under section 154 of the
Maharashtra Co-operative Societies Act, 1960 filed by a society
registered under that Act when the applications under sections 101
and 154 were filed but was converted into a multi-State co-
operative society during the pendency of the application for
revision whereupon the applicant was registered under the multi-
State Co-operative Societies Act and its registration under the
Maharashtra Co-operative Societies Act, 1960 was cancelled.
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6. Section 154 of the MCS Act reads as under :-
“154. Revisionary powers of State Government
and Registrar.- The State Government or theRegistrar, suo motu or on an application, may call
for and examine the record of any inquiry orproceedings of any matter, other than those
referred to in sub-section (9) of section 149,
where any decision or order has been passed by
any subordinate officer, and no appeal liesagainst such decision or order, for the purpose of
satisfying themselves as to the legality or
propriety of any such decision or order, and as to
the regularity of such proceedings, if in any case,it appears to the State Government, or the
Registrar, that any decision or order so called forshould be modified, annulled or reversed, the
State Government or the Registrar, as the case
may be, may, after giving the person affectedthereby an opportunity of being heard, pass such
orders thereon as to it or him may seem just.
(2) Under this section, the revision shall lie to the
State Government if the decision or order ispassed by the Registrar, the Additional Registrar
or a Joint Registrar, and to the Registrar if passed
by any other officer.
(2A) No application for revision shall be
entertained against the recovery certificate issued
by the Registrar under section 101 unless the
applicant deposits with the concerned society,
fifty percent, amount of the total amount ofrecoverable dues.
(3) No application for revision shall be
entertained, if made after two months of the date
of communication of the decision or order. The
revisional authority may entertain any such
application made after such period, if the::: Downloaded on – 09/06/2013 14:29:47 :::
7applicant satisfies it that he had sufficient cause
for not making the application within such period.
(4) The State Government may, by order, direct
that the powers conferred on it by this section
shall, in such circumstances and under suchconditions if any, as may be specified in the
direction, be exercised also by an officer of the
rank of Secretary to Government.”
Section 22 of the Multi State Co-Operative Societies
Act, 2002 reads as under :-
22. Conversion of a co-operative society into a
multi-State co-operative society.–
(1) A co-operative society may, by an amend-
ment of its bye-laws, extend its jurisdiction andconvert itself into a multi-State co-operative soci-
ety :
Provided that no such amendment of bye-laws of
a co-operative society shall be valid unless it hasbeen registered by the Central Registrar.
(2) (a) Every proposal for such amendment
of bye-laws shall be forwarded to the CentralRegistrar in accordance with the provisions
contained in sub-section (4) of Section 11.
(b) If the Central Registrar, after consulting the
Registrars of Co-operative Societies of the
States
concerned, has satisfied himself that such
amendment–
(i) fulfils the requirements of the members being
from more than one State;
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(ii) is in accordance with the provisions contained
in sub-section (4) of Section 11, he may regis-
ter the amendment within a period of six
months from the date of receipt thereof by him :
Provided that no co-operative society shall
be deemed to have been converted into a multi-
State co-operative society on any ground
whatsoever unless such society is registered as
a multi-State co-operative society.
(3) The Central Registrar shall forward to the
co-operative society a copy of the registered
amendment together with a certificate signed by
him and such certificate shall be conclusive evi-
dence that the amendment has been registered.
(4) Where the Central Registrar refuses to regis-
ter an amendment of the bye-laws of a co-opera-
tive society, he shall communicate the order of re-
fusal together with the reasons therefor to
the society in the manner prescribed within seven
days from the date of refusal.
(5) (a) Once the amendment of bye-laws has
been registered by the Central Registrar,
the co-operative society shall, as from
the date of registration of amendment, become
a multi-State co-operative society.
(b) The Central Registrar shall forward to
the co-operative society a certificate signed by
him to the effect that such society has been
registered as a multi-State co-operative society
under this Act and also forward a copy of the
same to the Registrar of Co-operative Societies
of the State concerned.
(c) The Registrar of Co-operative Societies
referred to in clause (b) shall thereupon make
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an order directing that the society had, as from
the date of registration by the Central Registrar,
ceased to be a society under the law relating
to co-operative societies in force in that State.”
7. It is settled law that the right of appeal vests in the par-
ties at the date of the suit and is governed by the law prevailing at
that time and the date of the decree or of the filing of the appeal
does not affect this right unless some subsequent enactment takes
away this right expressly or by necessary intendment.
The reliance on behalf of the petitioners on the
judgement of the Supreme Court in the case of Garikapati Veer-
aya v. N. Subbiah Choudhry, 1957 SCR 488 is well founded. Af-
ter referring to a long line of judgements of various courts the
Supreme Court summarized its conclusions as under :-
“23. From the decisions cited above the following
principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal
and second appeal are really but steps in a series
of proceedings all connected by an intrinsic unity
and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of
procedure but is a substantive right.
(iii) The institution of the suit carries with it the
implication that all rights of appeal then in force
are preserved to the parties thereto till the rest of
the career of the suit.
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(iv) The right of appeal is a vested right and such
a right to enter the superior court accrues to
the litigant and exists as on and from the date thelis commences and although it may be
actually exercised when the adverse judgment ispronounced such right is to be governed by the
law prevailing at the date of the institution of the
suit or proceeding and not by the law that
prevails at the date of its decision or at the date ofthe filing of the appeal.
(v) This vested right of appeal can be taken away
only by a subsequent enactment, if it so pro-
vides expressly or by necessary intendment
and not otherwise.”
I find it unnecessary to deal in any detail with the
judgements referred to in the above judgement as the Supreme
Court dealt with each of them in considerable detail including by
analyzing the facts therein. There are however certain
observations in the judgement which I will refer to in addition to the
conclusions as summarized in paragraph 23 quoted above.
The main, leading judgement referred to by the
Supreme Court was the judgement of the Privy Council in Colonial
Sugar Refining Co Ltd. Versus Irving 1905 AC 369. In paragraph 4
the Supreme Court cited with the approval the observations of the
Privy Council that there is no difference between abolishing an
appeal altogether and transferring the appeal to a new tribunal. In
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either case, it was held, there is an interference with the existing
rights contrary to the well-known general principle that statues are
not to be held to act retrospectively unless a clear intention to that
effect is manifested.
In paragraph 11 the Supreme Court approved the
judgement of the Full Bench of the Madras High Court in the case
of Daivanayaga Reddiyar vs Renukambai Ammal ILR 50 Woodruff
857 = AIR 1927 Madras 977 wherein it was held that this rule
would also apply to a mere fiscal enactment. The Full Bench
rejected as untenable the argument that when the right is taken
away by a subsequent alteration in a mere fiscal enactment, the
case is not the same as when the right depends on substantive
law.
In paragraph 12 the Supreme Court approved the
judgement of a Full Bench of the Allahabad High Court in Ram
Singha versus Shanker Dayal AIR 1928 Allahabad 437. The Full
Bench answered the reference by holding that the right to appeal to
the Court of the District Judge was governed by the law prevailing
at the date of the institution of the suit, and not by the law that
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prevailed at the date of its decision, or at the date of the filing of the
appeal.
In paragraph at 17 of the judgement the Supreme Court
affirmed the decision of a Special Bench of the Madras High Court
In re,Vasudeva Samiar AIR 1929 Madras 381 where it was held
that the institution of the suit carries with it the implication that all
appeals then in force are preserved to it through the rest of its
career, unless the legislation has either abolished the court to
which an appeal then lay or has expressly or by necessary
intendment given the Act a retrospective effect.
8. I would extend to revisions the above principles
applicable to appeals. I am conscious of the fact that there are
essential and important differences between an appeal and a
revision. That however is in the nature of the proceedings. The
scope for interference in an appeal is wider than the scope for
interference in a revision application.
I would however consider the similarities to be of
greater significance, importance and relevance than the
dissimilarities between an appeal and a revision while considering
the question that falls for consideration in this case. What is
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important to note is that both, an appeal and a revision, entitle a
party to challenge the judgement of a subordinate authority or court
before a superior authority or court. A revision and an appeal
provide the means to an aggrieved party to obtain rectification of
orders of subordinate authorities or courts. A party may be entitled
to invoke the appellate jurisdiction as a matter of right. The
exercise of revisionary jurisdiction however is often only a matter of
discretion of the revisionary authority. That however to my mind
would make no difference either. Where a statue provides a
revision it entitles the party to invoke the revisionary jurisdiction of
the authority or court. That the court or authority may or may not
exercise its revisionary jurisdiction in the exercise of its discretion is
another matter altogether. What is important is that the party is
entitled to approach the revisionary authority and seek the exercise
of its discretion in its favour to redress what it considers to be a
wrong order passed by the subordinate authority or court. This
essential and crucial feature common to an appeal and a revision
persuade me to apply the principles applicable to appeals to
revisions as well.
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9. Often a revision is permissible where no appeal lies
against an order. The legislature in such cases confers upon the
aggrieved party a right to challenge the order in revision albeit, to a
limited extent and in a limited manner. If the provision for revision is
by an amendment deleted it would certainly affect a party who had
prior thereto a right to challenge the order in revision.
10. The next question then is whether either the MCS Act
or the Multi – State Act either expressly or by necessary
indendment make section 154 of the MCS Act inapplicable qua
proceedings instituted by societies which were subsequently
converted into Multi – State Co-operative Societies. I think not. The
proceedings were admittedly filed before a court of competent
jurisdiction. There is nothing in either of the Acts which expressly
bars the jurisdiction of the court upon the conversion of the
petitioner as a Multi – State Co-operative Society. Nor is there
anything which leads to that conclusion by necessary intendment.
The provisions of the said Act in fact indicate that the courts and
authorities under the MCS Act continued to have jurisdiction to
decide matters which were validly filed before them prior to the
conversion of the societies registered under the Multi – State Act.
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Further neither of the Acts has abolished the courts or authorities
under the MCS Act.
11. The Multi – State Act and the MCS Act do not contain
any provisions for the transfer of pending proceedings under the
MCS Act to the authorities constituted under the Multi – State Act.
When the legislature intends transferring pending proceedings
pursuant to the enactment of a new law it provides for the same
expressly. This has for instance been done in the case of the
Family Courts Act and the Recovery of Debts Due to Banks and
Financial Institutes Act,1993
Section 8 of the Family Courts Act 1984 reads as
under:-
8. Exclusion of jurisdiction and pending
proceedings.– Where a Family Court has been
established for any area, —
(a) no district court or any subordinate civil
court referred to in sub-section (1) of Section 7
shall, in relation to such area, have or exercise
any jurisdiction in respect of any suit orproceeding of the nature referred to in the
Explanation to that sub-section;
(b) no magistrate shall, in relation to such area,
have or exercise any jurisdiction or powers under
Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974);
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(c) every suit or proceeding of the nature
referred to in the Explanation to sub-section (1) of
Section 7 and every proceeding under Chapter IX
of the Code of Criminal Procedure, 1973 (2 of1974),–
(i) which is pending immediately before the
establishment of such Family Court before any
district court or subordinate court referred to in
that sub-section or, as the case may be, beforeany magistrate under the said Code; and
(ii) which would have been required to be
instituted or taken before or by such Family Courtif, before the date on which such suit or
proceeding was instituted or taken, this Act hadcome into force and such Family Court had been
established,shall stand transferred to such Family Court on
the date on which it is established.”
Section 31 of the Recovery of Debts Due to Banks and
Financial Institutes Act, 1993 reads as under :-
“31. Transfer of pending cases.– (1) Every suit
or other proceeding pending before any courtimmediately before the date of establishment of a
Tribunal under this Act, being a suit or proceeding
the cause of action whereon it is based is such
that it would have been, if it had arisen after suchestablishment, within the jurisdiction of such
Tribunal, shall stand transferred on that date to
such Tribunal :
Provided that nothing in this sub-section shall
apply to any appeal pending as aforesaid before
any court.
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(2) Where any suit or other proceeding stands
transferred from any court to a Tribunal under
sub-section (1),–
(a) the court shall, as soon as may be after
such transfer, forward the records of such suit orother proceeding to the Tribunal; and
(b) the Tribunal may, on receipt of such
records, proceed to deal with such suit or otherproceeding, so far as may be, in the same
manner as in the case of an application made
under Section 19 from the stage which was
reached before such transfer or from any earlierstage as the Tribunal may deem fit.”
12.
There is no provision in the MCS Act or the Multi-State
Act similar to section 8 of the Family Courts Act and section 31 of
the Recovery of Deaths Due to Banks and Financial Institutions
Act. This is a strong indication that the legislature did not intend
affecting pending proceedings upon the conversion of a society
into a multi – State co-operative society.
13. There is yet another aspect which militates against a
view to the contrary. In this case it is the society that has filed an
application for review. The application however may have been
filed against a society. If the respondents contentions are to be
accepted even in such cases the application for review would be
without jurisdiction upon the society being converted into a multi
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– State co-operative society. Thus the right of a party would be
affected not by any act on its part or the effect of any law upon it
but by an act of the opposite party with which it had nothing to do.
I see nothing in the scheme of either of these Acts which warrants
an interpretation leading to such a conclusion.
14. In Tirupati Ginning & Pressing Factory Vs. Balaji
Ginning & Pressing Industry & ors. (2008) 8 LJSOFT 113 the
recovery certificate was applied for by the second defendant Bank
under section 101 of the MCS Act on 27.6.2002 and the same was
issued on 9.8.2002. The Bank got itself registered under Multi-
State Act after said Act came into force on 19.8.2002. It was not
disputed that the proceedings for recovery under section 101 of the
MCS Act were initiated and were pending. Respondent no. 1 filed a
civil suit for a declaratory relief that the defendants including the
bank were not entitled to act in furtherance to the provisions of the
MCS Act and for certain other consequential reliefs. It was
contended that in view of the registration of the bank under the
Multi-State Act the proceedings under the MCS Act were a nullity.
The rights of an auction purchaser were also involved. A
preliminary objection as to the maintainability of that suit on the
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ground that no notice under section 164 of the MCS Act was
raised. While upholding this contention the learned judge also
observed as under :-
“11. Thus, in any case, the recovery was being
made as per the provisions of the
Maharashtra Co-operative Societies Act
according to law as then applicable.”
The observations certainly support the petitioner
although the submission presently under consideration does not
appear to have been discussed in any detail.
15. In the present case however the matter does not rest
there. The judgements of the Supreme Court and the judgements
referred to therein refer to cases involving an amendment of the
statutes. In the present case the power of revision under section
154 of the MCS Act has not been amended. Its applicability has
been put in question by virtue of a change in the character/field of
operation of the society which in turn has triggered into operation
the provisions of an existing law viz. The Multi – State Act. But if
jurisdiction is to be decided as on the date on which the original
proceeding was instituted this would make no difference for, as
held by the Supreme Court: “The right of appeal is a vested right
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and such a right to enter the superior court accrues to the litigant
and exists as on and from the date the lis commences..”
16. This is therefore a different type of case. There is no
amendment of the provision viz. section 154 as such but there is
an impact of its applicability on the change in status of the
petitioner. To the question under consideration I do not think that
ought to make any difference. The change in character may not be
involuntary. There was no compulsion upon the petitioner to
convert itself into a multi – state co-operative society. The effect of
law however as to the cancellation of its registration under the
MCS Act was involuntary in view of section 22(5) of the Multi –
State Act. Surely the legislature did not intend extinguishing or
even jeopardising or affecting the rights and liabilities of a party
merely due to the conversion of a society into a multi – state
co-operative society. If the respondents’ submission is to be
accepted that would be the inevitable consequence. Such a
society would be left without a remedy or absolved of liability as
the case may be. As stated above the Multi – State Act contains
no provision for transfer of proceedings pending before the
authorities under the MCS Act to those under the Multi – State Act.
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17. The impugned order was based on a judgement of a
Division Bench of this court in the case of Adarsh Ginning and
Pressing Factory Versus State of Maharashtra 2007 (5) ALL MR
364. The judgement is of no relevance in the facts of the present
case. Firstly in that case the bank was earlier registered under the
MCS Act and on 9.12.1999 it was registered under the Multistate
Co-Operative Societies Act, 1984. The bank instituted the recovery
proceedings under section 101 on 14.8.2002 (paragraph 20 of the
judgement). The Multi State Act of 2002 came into force with effect
from 19.8.2002. Under section 126 of the Act of 2002 the 1984
Act was repealed. Section 126 (2) provides a saving clause inter-
alia in respect of any application made under the 1984 Act. The
main issue in the Writ Petitions filed before the Division Bench was
as to the validity of the circulars issued by the authorities under the
MCS Act. It was contended that the State authorities/authorities
under the MCS Act had no jurisdiction to issue directions or
circulars in respect of proceedings relating to the Multi – State Act.
The question presently under consideration neither fell for
consideration of the Division Bench nor was dealt with by the
Division Bench even obiter. The society before the Division
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Bench was registered as a multi-State co-operative society under
the 1984 Act on 9.12.1999 i.e. before it instituted the proceeding
under section 101 of the MCS Act on 28.10.2002.
18. Section 99 of the Multi – State Act provides for
appeals. It specifies the appealable orders. An order passed
under the MCS Act including the impugned order is not specified
in section 99. Section 101 of the Multi – State Act provides for a
review. It however provides for a review by the appellate authority
referred to under section 99. It clearly therefore does not apply to
orders passed under the MCS Act.
19. Faced with this it was contended that the petitioner has a
remedy under section 84 of the Multi – State Act which reads as
under:-
84. Reference of disputes.– (1) Notwithstanding
anything contained in any other law for the timebeing in force, if any dispute [other than a dispute
regarding disciplinary action taken by a multi-
State co-operative society against its paid
employee or an industrial dispute as defined inclause (k) of Section 2 of the Industrial Disputes
Act, 1947 (14 of 1947)] touching the constitution,
management or business of a multi-State co-
operative society arises–
(a) among members, past members and
persons claiming through members, past
members and deceased members, or
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(b) between a member, past members and
persons claiming through a member, past
member or deceased member and the
multi-State co-operative society, its board or any
officer, agent or employee of the multi-State co-
operative society or liquidator, past or present, or
(c) between the multi-State co-operative society
or its board and any past board, any officer, agent
or employee, or any past officer, past agent or
past employee, heirs or legal representatives of
any deceased officer, deceased agent or
deceased employee of the multi-State co-
operative society, or
(d) between the multi-State co-operative society
and any other multi-State co-operative society,
between a multi-State co-operative society and
liquidator of another multi-State co-operative
society or between the liquidator of one
multi-State co-operative society and the liquidator
of another multi-State co-operative society, such
dispute shall be referred to arbitration.
(2) For the purposes of sub-section (1), the
following shall be deemed to be disputes touching
the constitution, management or business of a
multi-State co-operative society, namely :–
(a) a claim by the multi-State co-operative
society for any debt or demand due to it from a
member or the nominee, heirs or legal
representatives of a deceased member, whether
such debt or demand be admitted or not ;
(b) a claim by a surety against the principal
debtor where the multi-State co-operative society
has recovered from the surety any amount in
respect of any debt or demand due to it from the
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principal debtor as a result of the default of the
principal debtor, whether such debt or demand is
admitted or not ;
(c) any dispute arising in connection with the
election of any officer of a multi-State co-operative
society.
(3) If any question arises whether a dispute
referred to arbitration under this section is or is not
a dispute touching the constitution, management
or business of a multi-State co-operative
society, the decision thereon of the arbitrator shall
be final and shall not be called in question in any
court.
(4) Where a dispute has been referred to
arbitration under sub-section (1), the same shall
be settled or decided by the arbitrator to be
appointed by the Central Registrar.
(5) Save as otherwise provided under this Act, the
provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) shall apply to all arbitration
under this Act as if the proceedings for arbitration
were referred for settlement or decision under the
provisions of the Arbitration and Conciliation Act,
1996.
It was submitted that the petitioner ought therefore to
follow the procedure under the Arbitration and Conciliation Act,
1996. The submission is not well founded.
20. Section 84 of the Multi – State Act would apply to cases
which are to be instituted under the said Act. It does not apply to
cases which have already been instituted another Act including the
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MCS Act. The section does not even provide for a transfer of cases
filed under the MCS Act to the authorities/arbitration provided for
therein. If the legislature intended annuling all proceedings under
the MCS Act and the re-presentation/filing thereof under section 84
of the Multi – State Act the same would have been provided for
expressly. As it is there is not even a suggestion to this effect in
either enactment. To accept the respondents submission would be
reading into the enactments consequences of a wide and crucial
nature which cannot be done.
21. There is another indication which militates against the
respondents submission. There is no provision in the Multi – State
Act which saves the bar of limitation if proceedings were to be
adopted de-novo under section 84 thereof. To this it was submitted
that an application could be made for condonation of delay under
section 85(3) which provides for limitation. Section 85 reads as
under :-
“85. Limitation.– (1) Notwithstanding anything
contained in the Limitation Act, 1963 (36 of 1963),
but subject to the specific provisions made in this
Act, the period of limitation in the case of a dis-
pute referred to arbitration shall,–
(a) when the dispute relates to the recovery of
any sum including interest thereon due to a multi-
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26
State co-operative society by a member thereof,
be computed from the date on which such mem-
ber dies or ceases to be a member of the society;
(b) save as otherwise provided in clause (c),
when the dispute relates to any act or omissionon the part of any of the parties referred to in
clause (b) or clause (c) or clause (d) of sub-sec-
tion (1) of Section 84, be six years from the date
on which the act or omission, with reference towhich the dispute arose, took place;
(c) when the dispute is in respect of an election
of an officer of a multi-State co-operative society,be one month from the date of the declaration of
the result of the election.
(2) The period of limitation in the case of
any dispute, except those mentioned in
sub-section (1), which are required to be referred
to arbitration shall be regulated by the provisions
of the Limitation Act, 1963 (36 of 1963), as if thedispute were a suit and the arbitrator a civil court.
(3) Notwithstanding anything contained in
sub-sections (1) and (2), the arbitrator may admit
a dispute after the expiry of the period of limita-
tion, if the applicant satisfies the arbitrator thathe had sufficient cause for not referring the dis-
pute within such period.”
22. Section 85 does not entitle a party to condonation of
delay as a matter of right. It is left to the discretion of the court to
condone or not to condone delay. It was submitted that in such
circumstances the court is bound to condone delay. It is not
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27
permissible for one court to speculate on what another court may
or may not do. To say that the court ought to exercise discretion in
a particular manner is not the same thing as to say that the court
would do so. If the party is entitled to be relieved of the bar of
limitation on account of any legislative amendment the legislature
itself would would provide for the same. I do not see anything in
section 85 which supports the respondents contention. There is no
period specified within which the application under section 84
ought to be made upon the registration of a society under the
Multi – State Act. This too indicates that the legislature never in-
tended such a society making an application under section 84.
23. On behalf of the petitioner it was submitted that the
cancellation of the petitioners registration under the MCS Act was
ordered under section 17 (4) of the MCS Act. The submission was
that though the directions may have been issued under section 22
(5) of the Multi – State Act the final order actually cancelling
the petitioners registration under the MCS Act was passed under
section 17 (4) of the MCS Act. In that event, it was submitted, un-
der section 17 (3) the proceedings adopted by the petitioner under
the MCS Act are entitled to be continued. Considering the view
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28
that I have taken earlier it is not necessary to consider this submis-
sion.
24. It was submitted on behalf of the petitioner that the
revision application before respondent no.3 is also saved by
section 126 and in particular sub-section (6) thereof. Section 126
reads as under :-
“126. Repeal and saving.–( 1) The Multi-State
Co-operative Societies Act, 1984 (51 of 1984) ishereby repealed.
(2) Without prejudice to the provisions contained
in the General Clauses Act, 1897 (10 of 1897)with respect to repeals, any notification, rule,
order, requirement, registration, certificate,
notice, decision, direction, approval,
authorisation, consent, application, request orthing made, issued, given or done under the Mul-
ti-State Co-operative Societies Act, 1984 (51 of1984) shall, if in force at the commencement of
this Act, continue to be in force and have effect
as if made, issued, given or done under thecorresponding provisions of this Act.
(3) Every multi-State co-operative society,
existing immediately before the commencement
of this Act which has been registered under theCo-operative Societies Act, 1912 (2 of 1912) or
under any other Act relating to co-operative
societies in force, in any State or in pursuance of
the provisions of the Multi-Unit Co-operative
Societies Act, 1942 (6 of 1942) or the Multi-State
Co-operative Societies Act, 1984 (51 of 1984),
shall be deemed to be registered under the
corresponding provisions of this Act, and the bye-
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29
laws of such society shall, insofar as they are
not inconsistent with the provisions of this Act,
or the rules, continue to be in force until altered
or rescinded.
(4) All appointments, rule and orders made, all
notifications and notices issued and all suits and
other proceedings instituted under any of the Acts
referred to in sub-section (1) shall, insofar as they
are not inconsistent with the provisions of this
Act, be deemed to have been respectively made,
issued and instituted under this Act, save that an
order made cancelling the registration of a mul-
ti-State co-operative society shall be deemed,
unless the society has already been finally liqui-
dated, to be an order made under Section 86 for
it being wound up.
(5) The provisions of this Act shall apply to–
(a) any application for registration of a multi-
State co-operative society;
(b) any application for registration of
amendment of bye-laws of a multi-State
co-operative society,
pending at the commencement of this Act and to
the proceedings consequent thereon and to
any registration granted in pursuance thereof.
(6) Save as otherwise provided in this Act, any le-
gal proceeding pending in any court or before
the Central Registrar or any other authority at
the commencement of this Act shall be continued
to be in that court or before the Central Registrar
or that authority as if this Act had not been
passed.”
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30
The submission was that the words ” ………….. pending
in any court or before the Central Registrar or any other
authority …………….” in sub-section (6) ought to be construed to
include proceedings which were pending at the time of conversion
of a society registered under the MCS Act into a multi –
State co-operative society and the cancellation of the registration of
such a society under the MCS Act and the registration thereof
under the Multi – State Act.
25.
If my answer to the question that falls for consideration
is correct this submission is not well founded. It would follow in
that event that the proceedings under the MCS Act remaining
unaffected could not fall within the ambit of section 126. The
submission also involves rewriting by adding words to the
provision of section 126(6) which is not permissible.
26. In the circumstances the impugned order dated
14.8.2008 is set-aside, the revision application is restored to file
and respondent no.3 shall decide the same on merits. There shall
however be no order as to costs.
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