JUDGMENT
S.S. Parkar, J. (Chairperson)
1. Since both these appeals raise common question of law they were heard together and are being disposed of by this common judgment.
2. A short question that arises in these appeals is whether the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SRFAESI Act”) would be applicable to the Co-operative Banks which are registered under the Maharashtra Co-operative Societies Act, 1960.
3. The respondent bank which is a Co-operative Bank had initiated an action against the appellants under the provisions of Section 101 of the Maharashtra State Co-operative Societies Act, 1960 and got the recovery certificate issued thereunder. Thereafter the respondent bank took an action under the provisions of the SRFAESI Act against the appellants which was challenged by the appellants by filing an appeal/application under Section 17 of the SRFAESI Act in the D.R.T. Nagpur. During the pendency of said application, an application was made by the appellants to stay the said proceeding because the matter was pending before the Supreme Court in Transcore’s case on the issue whether simultaneously two parallel remedies were available to a banking company i.e. to initiate a proceeding under the provisions of the RDDBFI Act and also under the provisions of the SRFAESI Act. According to the appellants the decision of the Apex Court on the question with regard to the initiation of the two parallel remedies would be relevant for the decision on the point raised in the matter by them. However, that application was rejected. The rejection of the said application has been impugned in this appeal.
4. The learned Counsel appearing for the appellants relied on the judgment of the Supreme Court in the case of Transcore v. Union of India, decided during the pendency of this appeal in this Tribunal which is reported in I . The view taken in that decision is that the SRFAESI Act is complementary to the provisions of the RDDBFI Act and. therefore, the proceedings could be initiated under the provisions of both the Acts simultaneously and, therefore, that decision will not be relevant to decide the main issue raised in this appeal. However, on behalf of the appellants reliance is also placed on another judgment of the Apex Court in the case of Greater Bombay Cooperative Bank Ltd. v. United Yarn Tex. Pvt. Ltd. , in which it was held that the provisions of the RDDBFI Act are not applicable to Co-operative Banks. That view has been taken by the Supreme Court on the ground that the definition of ‘Banking Company’ under the provisions of Section 5(c) of the Banking Regulation Act has not been amended to include Co-operative Banks. Relying on the ratio of the said decision it is contended on behalf of the appellants that the provisions of the SRFAESI Act will also not be applicable to Co-operative Banks for the same reasons.
5. In my view, the ratio of the decision of the Supreme Court in the case of Greater Bombay Co-operative Bank (supra) will not be applicable so far as the applicability of the provisions of the SRFAESI Act to a Co-operative Bank like the respondent bank arc concerned. Because by virtue of the notification dated 28th January, 2003 issued under Sub-clause (v) of Clause (c) of Sub-section (1) of Section 2 of the SRFAESI Act the Central Government has specifically included a ‘Co-operative Bank’ as defined in Clause (cci) of Section 5 of the Banking Regulation Act, 1949 to be a bank for the purpose of the SRFAESI Act. The respondent bank is a ‘primary Co-operative Bank’ as defined in Clause (ccv) of Section 56 of the B.R. Act and it is not disputed before me that the respondent bank is a “Co-operative Bank” as defined under Clause (cci) of the aforesaid section. Thus, while the definition of the “bank” under the provisions of the SRFAESI Act includes Co-operative Banks by virtue of the above notification there is no corresponding change effected in the definition of “bank” under the provisions of the RDDBFI Act or in the definition of ‘banking company’ in the B.R. Act to include Co-operative Banks. In my opinion, due to the aforesaid notification issued under the SRFAESI Act non-inclusion of Co-operative Banks within the definition of “banking company” in the interpretation clause of Section 5(c) of the B.R. Act would not make difference to the applicability of the provisions of the SRFAESI Act to Co-operative Banks. The said notification leaves no doubt that the remedies under the provisions of SRFAESI Act are squarely and clearly available to Cooperative Banks. Therefore, in my view, the ratio of the decision of the Supreme Court in the aforesaid judgment is not applicable to this case. These appeals, consequently, are liable to be dismissed.
6. It is then argued on behalf of the appellants that so far as the question about pursuing parallel proceedings under the provisions of the two Acts are concerned the said point was not argued on behalf of the appellants as in the application which was made before the D.R.T. it was only prayed that the proceedings filed under Section 17 of the SRFAESI Act be postponed for hearing until the decision of the Supreme Court in the Transcore’s case (supra). In this connection the appellants want to rely on the judgments of the Supreme Court as regards the doctrine of election of remedy available under the provisions of the two Acts.
7. On behalf of the respondent bank it is however, argued that the said question has been dealt with by the Apex Court in Trail score’s case (supra) and also by the D.R.T. by observing in the last paragraph of the impugned order that the provisions of the SRFAESI Act are applicable for limited purpose for the enforcement of security while the provisions of Section 101 of the Maharashtra Co-operalive Societies Act are wider. Nonetheless, in my view, that question can be considered in the light of the judgments of the Supreme Court on which the appellants want to rely, as that point is stated to have been raised in the main proceeding also.
In the result the appeals are dismissed reserving the appellants’ right to argue at the final hearing of the appeal in the D.R.T. the respondent bank’s right to pursue two parallel remedies simultaneously.