ORDER
Kanakaraj, J.
1. The first respondent was treasurer in the petitioner-co-operative bank from the year 1966 to 1972. One Dharmaraj was the paid-Secretary of the Co-operative Bank from 20.11.1968 to 19.11.1969. The petitioner, Co-operative bank is a society registered under the Tamil Nadu Co-operative Societies Act, 1961. During an inspection under Section 66 of the Act, it was noticed that there was a deficiency in the assets of the Bank to the tune of Rs. 14,032.91. Surcharge proceedings were initiated under Section 71 of the Act by the third respondent against the legal heirs of Dharmaraj who had passed away on 22.11.1969 and against the first respondent, treasurer. By an order dated 27.3.1975, the third respondent held that the first respondent as well as the heirs of the deceased Dharmaraj were liable for the said amount of Rs. 14,032.91. Two appeals were filed by the first respondent and the heirs of Dharmaraj before the Special Tribunal for co-operative cases. Both the appeals were allowed. So far as the appeal of the first respondent is concerned, it was observed that the ingredients necessary for surcharging the first respondent were not available. There was, no doubt, an observation that it was open to the petitioner-bank to proceed against the first respondent under Section 73 of the Act. Thereupon, the petitioner filed an arbitration claim under Section 73 of the Act claiming a total sum of Rs. 42,981.46 comprising of Rs. 14,032.91 being the amount said to have been misappropriated, interest there on amounting to Rs. 28,943 and expenses. The claim was made against the first respondent as well as heirs of Dharmaraj. The first respondent and the heirs disputed the claim on several grounds including the plea of limitation. An award was passed in favour of the society by the second respondent, the first respondent filed appeal C.M.A. No. 210 of 1983. The tribunal by order dated 27.3.1986 held that the first respondent was not wilfully negligent that the claim was barred by res judicata under Section 11, C.P.C. that the claim cannot be maintained under Section 73 of the Act and that, in any event, the claim was barred by limitation. It is the said judgment of the fourth respondent-Tribunal that is challenged in this writ petition.
2. The first contention is that the finding of the Tribunal that the claim is barred by res judicata is totally unsustainable. I am not inclined to accept this argument because the proceedings under Section 71 are totally different from the proceedings under Section 73 of the Act. Surcharge under Section 71 arises on account of wilful negligence or inaction resulting in loss to the petitioner-bank. A proceeding under Section 73 is totally different and relates to disputes touching the constitution of the committee, or touching the management or business of the bank or disputes between the members of the petitioner co-operative bank.
3. Similarly, the finding of the tribunal that the claim cannot be maintained under Section 73 of the Act is not well founded. Section 73 of the Act provides for determination of any dispute between the members of the petitioner-bank. It is the contention of the petitioner-bank that the first respondent has caused loss to the tune of Rs. 14,032.91. The claim for Rs. 14,032.91 is made on the ground that the Secretary and the first respondent signed the cash chitta on 19.11.1969. But it was found that the said amount had not been brought into account in the Day Book. Therefore, there is no reason why such a Claim should not be made as a dispute under Scc.73 of the Act. The Arbitrator can take evidence and decide the question whether the first respondent and the Secretary are liable for the said amount or not. The reasons given by the tribunal that the claim is not maintainable because there is no dispute touching the Committee or the Management, is based on a superficial understanding of the said section. The reasons given by the tribunal for holding that the amount, if at all, can be claimed under surcharge proceedings are totally uncalled for. In this connection, the tribunal has not taken note of the judgment in the Appeal C.M.A. No. 51 of 1975 wherein the tribunal had rendered a finding that the claim was not maintainable under surcharge proceedings.
4. However, the last point on which the tribunal reversed the findings of the second respondent seems to be well founded. The cause of action for the misappropriation admittedly took place between 28.11.1968 and 22.11.1969. In fact, the cash chitta is said to have been signed on 19.11.1.969. Under Proviso to Rule 56(2) of the Tamil Nadu Co-operative Societies Rules, a claim under Section 73 should be filed within a period of three years from the date of commission or omission. Therefore, counting the period of limitation from that date, it is seen that the claim under Section 73 had been filed only on 13.11.1978 after a lapse of six years. The argument of the learned Counsel for the petitioner on the question of limitation is that the Secretary and Treasurer occupied the position of trustees and, therefore, there is no question of limitation for preferring the claim. Secondly, the period during which action had been taken under Section 71 of the Act should be excluded for the purpose of calculating the period of limitation. In this connection, the learned Counsel for the petitioner relies on the judgment in K. Bashu Sahib v. Chandrasekaran (1988) 2 L.W. 359. That was a case where a suit was filed to set aside the sale held under the Co-operative Societies Act. The plaint was returned after nine years for want of pecuniary jurisdiction and later on represented in the District Court. It is under those circumstances that Section 14 of the Limitation Act was invoked and the court upheld the plea that the time taken during the pendency of the plaint in the District Munsif Court can be excluded. The ratio of that decision cannot at all apply to the facts of this case because in that case, the suit had been filed in time before the Court of the District Munsif. In this case, that is not the position. In fact, while arguing the plea of res judicata, the petitioner rightly contended that the proceedings under Scc.71 are totally different from the proceedings under Section 73. Therefore, it follows that the claim not having been filed within three years in accordance with Rule 56, it was definitely barred by limitation. The order of the tribunal is, therefore, upheld only on the question of limitation. Consequently, the writ petition fails and it is dismissed. There will be no order as to costs.