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J.N. Sarma, J.—All the five writ petitions arise out of suits and original application filed by Assam Co-operative Apex Bank Limited, a Co-operative Bank for recovery of its dues along with other reliefs. The Petitioners herein are Defendants/borrowers/debtors of money/advances from the Bank. The suits filed, before the Civil Court were transferred to Debt Recovery Tribunal (hereinafter Tribunal) at Guwahati u/s 31 of the Recovery of Debts due to the Banks and Financial Institution Act, 1993 (hereinafter Act) and they were registered as Original Applications u/s 17(1) of the Act and also some applications were filed before the Tribunal u/s 17(1) of the Act.
Sections 2(d), 2(e) and 2(h) of the Act defines Bank and Financial Institutions.
Section 2(d): "Bank" means--
(i) a banking company;
(ii) a corresponding new bank;
(iii) State Bank of India;
(iv) a subsidiary bank; or
(v) a Regional Rural bank;
(e) "banking company" shall have the meaning assigned to it in Clause (c) of Section 5 of the Banking Regulation Act, 1949 (10 of 1949);
(h) "financial institution" means--
(i) a public financial institution within the meaning of Section 4A of the Companies Act, 1956 (1 of 1956);
(ii) such other institution as the Central Government may, having regard to its business activity and the area of its operation in India by notification, specify;
Sub-section 5(i)(c) of the Banking Regulation Act, 1949 defines Banking Company (hereinafter called Bank Act), which is quoted below:
"(c) banking company" means any company which transacts the business of banking (in India).
Explanation--Any company which is engaged in the manufacturer of goods or carries on any trade and which accepts deposits of money from the public merely for the purpose of financing its business as such manufacturer or trader shall not be deemed to transact the business of banking within the meaning of this clause.
Section 3 of the Banking Act, 1949 provides as follows:
Act to apply to co-operative societies in certain cases.--Nothing in this Act shall apply to--
(a) a primary agricultural credit society;
(b) a co-operative land mortgage bank; and
(c) any other co-operative society, except in the manner and to the extent specified in Part V.
Section 56 in Part V of the Act of 1949 relevant for our purpose is quoted below:
Act to apply to Co-operative societies subject to modification.--The provisions of this Act, as in force for the time being, shall apply to, or in relation to, co-operative societies as they apply to, or in relation to, banking companies to the following modifications, namely: (a) Throughout this Act, unless the context otherwise requires
(i) references to a "banking company" or "the company" or "such company" shall be construed as references to a co-operative bank
(ii) references to "commencement of this Act" shall be construed as references to commencement of the Banking Law (Application to Co-operative Societies) Act, 1965 (23 of 1965);
(b) in Section 2, the words and figures "the Companies Act, 1956 (I or 1956) and" shall be omitted;
(c) in Section 5,--
3 (i) after Clause (cc), the following, clauses shall be inserted, namely:
(cci) "co-operative bank" means a State co-operative bank, a Central co-operative bank and a primary co-operative bank;
5-A. Act to override memorandum, articles etc.--Save as otherwise expressly provided in this Act.--
(a) the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a banking company, or in any agreement executed by it, on in any resolution passed by the banking company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of the Banking Companies (Amendment) Act, 1959 (33 of 1959); and
(b) Any provision contained in the memorandum, articles, agreement or resolution aforesaid shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case maybe.
The contention is that Assam Co-operative Apex Bank is not a ''Bank'' as defined in Act of 1993, nor it is a financial Institution and as such the Tribunal has no jurisdiction to entertain/determine any claim by Apex Bank for recovery of its dues and as the suits are not triable by the Tribunal it can not be transferred to Tribunal.
Section 17(1) of the Act of 1993 and Section 31(1) are quoted below:
Jurisdiction, powers and authority of Tribunals.--(1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions.
Transfer of pending cases.--(1) Every suit or other proceeding pending before any Court immediately 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 such establishment, 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.
The Central Government has notified the financial Institution in exercise of the power under Sub-section (2) of Section 4A of the Companies Act of 1956 and is on date they are 15 in numbers as pointed out by learned Advocates from the Hand Book.
The contention raised by the Petitioner came up for consideration in AIR 1998 Rajasthan page 100 (Phoenix Impex v. State of Rajasthan and Ors.) and in para-8 the Court pointed out as follows:
It is obvious that a company becomes banking company if it is formed and registered under the Companies Act, 1956 and also it transacts the business of banking in India. Admittedly, a Co-operative Bank is not formed and registered under the Companies Act, 1956. It is formed and registered under the Rajasthan Co-operative Societies Act of 1965. Thus apparently a co-operative bank does not fall in the category of "banking company" defined in Clause (e) of Section 2 of Act 51 of 1993.
The Assam Co-operative Apex Bank is also a Bank registered under the Assam Co-operative Societies Act.
The next question is that whether it will be covered by the provisions of the Banking Regulation Act read with part V of the Act. That aspect of the matter also has been considered in paragraphs-11 and 12 by the Rajasthan High Court (supra) which are quoted below:
It is relevant to refer to Section 3 of the Banking Regulation Act of 1949 which is to the following effect: 3. Act to apply to co-operative societies in certain cases--Nothing in this Act shall apply to--
(a) a primary agricultural credit society;
(b) a co-operative land mortgage bank; and
(c) any other co-operative society, except in the manner and to the extent specified in part-V.
The opening words of this section clearly indicate that the provisions of the Banking Regulation Act of 1949 do not apply to any Co-operative Bank Except in the manner and to the extent as mentioned in Part V which was added vide Act No. 23 of the Act of 1965. The purpose of adding part V by the amendment Act No. 23 of 1965 was only to bring co-operative banks under the Banking Regulation Act of 1949 for the purpose of regulating banking business to the extent specified in Part V. A reading of the preamble of the Banking Laws Act, 1965 (No. 23 of 1965) which is to the following effect makes the position crystal clear:
An Act further to amend the Reserve Bank of India Act, 1934 and the Banking Companies Act, 1949 for the purpose of regulating the banking business of certain co-operative societies and for matters connected therewith.
It is, thus, obvious that for the purpose of regulating the banking business of all the institutions, including the co-operative banks the Banking Companies Act, 1949 was amended and it was renamed vide (Act No. 23 of 1965) as Banking Regulating Act 1949. The purpose of enactment by Act No. 23 of 1965 was not to regulate each and every function of a co-operative bank. It is only in order to regulate the banking business i.e. what shall be the control of the Reserve Bank to the advances to be made to the co-operative banks or what shall be the reserve ratio, what shall be the restriction on the loans and advances etc. that the amendment in the Act No. 10 of 1949 was made. In our opinion, this amendment does not change the definition of banking company given in Clause (c) of Section 5 of the Principal Act.
The Legislature in its wisdom did not include the Co-operative Bank within the definition of the Bank, in the Act 1993 and it was not the intention of the Legislature that the dues of the Co-operative Bank should be adjudicated by the Tribunal under the Act of 1993. This aspect of the matter also can be looked at from Anr. angle inasmuch as Assam Co-operative Societies Act and Rules have been made for recovery of dues by way of co-operative demand certificate and for that it has been provided in Section 70 that the Registrar or such other person as may be authorised by him in this behalf may, on his own motion or on the written requisition of a registered society or an affiliating society or a financing back may apply for the recovery of any loan or any other demand due by a defaulting member, after making such enquiry as he deems fit, grant a Co-operative Demand Certificate for the recovery of the amount found to be due. Section 74 that provides for punishment for disposing of the property in contravention of Section 76. Sections 74 to 76 provide for different modes for realisation of the money. Sections 80, 81 give a power to adjudicate with regard to attachment of property. Section 83 provides for the recovery of sums due. Section 83 provides that:
(1) All dues recoverable under this Act or Rules framed thereunder shall be reduced to the form of a co-operative demand certificate, as in Schedule over the signature of the Registrar or of such gazetted officers as may have powers delegated to them by the Registrar in this behalf and shall be recovered as an arrear of land revenue and shall be paid to the certificate holder or his authorised nominee. Such Certificate shall be in the name of the claimant and shall be delivered to him.
That being the position the Legislature has made provisions for realisation the money by Co-operative Banks. Further inspite of this provision it is settled law that the jurisdiction of the Civil Court to entertain a suit for realisation of such money have not been ousted as a whole. The jurisdiction of the Court have been barred by Section 79 of the Act is quoted below:
Bar to jurisdiction of courts. (1) Save as provided in this Act, No Civil or Revenue Court shall have any jurisdiction in respect of--
(a) registration of a registered society or its bye-laws or amendments of bye-laws; or
(b) the dissolution of a managing or controlling body and the management of the affairs of the society on dissolution thereof; or
(c) any dispute referred to the Registrar; or
(d) any matter in relation to the winding up and dissolution of a registered society.
(2) Save as provided in this Act, no order, decision or award under this Act, or working of the affairs of a registered society shall be liable to be challenged, set aside, modified, revised or declared void in any court on any ground whatsoever except on grounds of jurisdiction.
Section 63 of the Assam Co-operative Societies Act, 1949 is quoted below:
Reference of dispute. Any dispute touching the business of a registered society, other than a dispute regarding disciplinary action taken by a society against an employee of the society, or of the liquidator of a society shall be referred to the Registrar for decision if the parties thereto are among the following:
(a) the society, its past or present controlling or managing body, any past or present officer, agent or employee or the liquidator of the society; or
(b) member, past member or persons claiming through a member or deceased member of the society; or
(c) a surety of a member, past member or deceased member of a society; or
(d) any other registered society or the liquidator of such society;
(e) a registered society and a financing bank.
Section 64 of the Act provides for settlement of disputes by the Registrar.
There is a set of Rules known as Assam Co-operative Societies Rules. Chapter-IX of that Rule from Rules 81 to 94 provide detailed provision for settlement of disputes by the Registrar. Rule 81 alongwith proviso is quoted below:
A dispute referred to u/s 63 shall include claims by a Co-operative society for debts or any other demands due to it from a member or past member or the heirs or assets of a past member or from Ors. as provided in Sub-sections (a), (b), (c) and (d) of Section 63 whether such debts or demands be admitted or not:
Provided, however, that if the question at issue between a co-operative society and a claimant or different claimants is one involving complicated question of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by the society concerned. If no such suit is instituted within three months of the Registrar''s order suspending proceedings, the Registrar shall take action as prescribed in Section 64.
Rule 82 provides for dispute and appointment of arbitrators, Rule 83 is with regard to qualification of arbitrators. Rule 84 is with regard to payment of remuneration to arbitrators. Rule 85 is payment of expenses. Rule 86 is with regard to the mode of reference. Rule 87 is with regard to for filing dispute. Rule 88 is procedure for disposal of dispute. Rule 89 is decision or award. Rule 90 is withdrawal of reference. Rule 91 is execution of decision or award, that is quoted below:
Execution of decision or award. (1) In any dispute other than a claim in respect of any sum payable to or by a co-operative society, the decision or the award of the Registrar or his nominee or the arbitrator shall be enforceable by any civil court having local jurisdiction in the same'' manner as a decree of such court upon application, as if it were a decree of the Court.
(2) When an award in a monetary dispute has been obtained against a society, it shall not be executed except against the assets of the society, including amounts due to the society by its members.
(3) When an award in a monetary dispute has been obtained, it should be sent to the Registrar or such other officer as may have powers delegated to him in this behalf, for reducing the award in the form of a Co-operative Demand Certificate u/s 83, if the amount has not been realised within two months from the date of the award.
(4) When the Co-operative Demand Certificate is received from the issuing officer duly signed it will then be submitted to the head of the local administration having jurisdiction, for the recovery of the amount as arrears of land revenue.
Rule 92 is disposal of records. Rule 93 is certified copy, Rule 94 for conditional attachment of property.
Once a dispute is referred to the Registrar, there can not be a civil suit. But before it a civil suit always is maintainable. The question of ouster of jurisdiction of Civil Court by Sections 63 and 79 of the Act of 1949 read with the Rules quoted above has been taken up for decision as it was vehemently argued by Shri Choudhury, the learned Counsel for the Bank, that the Bank is always facing delaying and dilatory methods adopted by unscrupulous borrowers taking this plea and there is no decision on this point by this Court. So I heard the learned Counsel for this point and though above I have held that the jurisdiction of Civil Court has not been ousted I give below the reasons for holding as such.
For filing a suit no authority is required. It is the common law right. Section 9 of CPC gives the jurisdiction to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law see The State of Vindhya Pradesh (Now Madhya Pradesh) Vs. Moradhwaj Singh and Others, , Lala Ram Swarup and Others Vs. Shikar Chand and Another, The jurisdiction of Civil Court is all embracing except to the extent it is excluded by an express provision of law. This is the purpose of Section 9 of the CPC see Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, An exclusion of jurisdiction of Civil Court is not to be readily inferred. Further a statute ousting jurisdiction must be strictly construed see Abdul Waheed Khan Vs. Bhawani and Others, . It must be see whether the mechanism provides for Civil Court is an effective alternative mechanism or a real substitute of Civil Court. If the substantial reliefs in all form/nature available in a Civil Court are not available before the other forum, there can not be any ouster of the jurisdiction of Civil Court. The special statute must provide for adequate and satisfactory alternative remedy. For this one may have a look at the seven propositions laid down in Dhulabhai Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred a statute one may at one''s peril bring a suit of one''s choice see Smt. Ganga Bai Vs. Vijay Kumar and Others, An Act does not bar suits under the general law which do not fall within the scope of any Section of the Act, Special Act Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddy, Even if a summary remedy is provided by a statute that will not bar a suit in Civil Court Raja Jagdish Pratap Sahi Vs. State of Uttar Pradesh, Further no relief can be obtained before the Registrar against a guarantor as he is not a member of the Co-operative society. Further the Rule 91(2) quoted above also restricts the remedy, as it can be executed only against the assets of the society. So the Bank can not have the remedies as available in a civil court.
In a catena of decisions this Court has held that Section 154 of Assam Land and Revenue Regulation does not bar a suit for declaration of title and other reliefs See AIR 1979 Gau 1 . The mere fact that an enactment provides Anr. remedy or summary remedy will not constitute bar to a suit in Civil Courts See Firm and Illuri Subbayya Chetty and Sons Vs. The State of Andhra Pradesh,
It is on this background that the question of ouster of jurisdiction of Civil Court will have to be decided. Section 63 of the Act of 1949 speaks of referring a dispute to Registrar. The forum so provided is not a substitute and or an alternative mechanism to enable a Bank to get all the reliefs available in a Civil Court. Further proviso to Rule 91 quoted above also will show that the jurisdiction of Civil Court has not been ousted. Further if in a suit some reliefs like declaration, enforcement of mortgage, attachment before judgment, injunction, Receiver etc. are sought/prayed for such a suit shall be maintainable before the Civil Court in as much those reliefs can not be granted by the Registrar. Further a perusal of Rule 81 (quoted above) will show that it includes debts or any other demands due to it from a member etc. It can not be argued that the cause of action may be split, one part may be referred to Registrar and the other part will come before the Civil Court. That will be an anomalous and absurd situation, not envisaged by the Act of 1949 or by Code of Civil Procedure. So Section 63 read with Rules is no bar for a civil suit Further a reading of Section 79(1)(c) will show that the jurisdiction of the Court is barred when the dispute is referred to Registrar. The language of the Section even if is given wide meaning does not include that a dispute which is to be referred to Registrar, before that the option/choice is available for approaching Civil Court. A new bar not provided in the statute can not be created or imported. Thus a civil suit filed by the Bank (Assam Co-operative Apex Bank) before Civil Court for recovery of its dues is not barred either u/s 63 read with Rules or u/s 79 of Co-operative Societies Act, 1949.
That being the position, I hold that the Civil Court has the jurisdiction to entertain the suits filed by Assam Co-operative Apex Bank and the transfer of these suits u/s 31 shall stand quashed. All the suits and original applications filed before the Tribunal shall be disposed of as follows:
(1) The Original Application No. 174/97 for recovery of Rs. 27,32,669.33P (Rupees Twentyseven lakhs thirtytwo thousand six hundred sixtynine and thirty three paise) shall be returned to the Assam Co-operative Apex Bank Limited to file either before the Civil Court in-accordance with law of the Assam Co-operative Societies Act, 1949. It is needless to say that the period spent before the Debts Recovery Tribunals as well as before this Court shall stand excluded for computing the period of limitation.
Shri D. Das appears for the Petitioner. Shri D. Sur appears for the Respondents No. 1, 3 and 4. Shri M.K. Choudhury appears for the Respondent No. 2.
(II) Civil Rule No. 2110 of 1998 which arises out of Money Suit No. 141/95 in the Court of the Assistant District Judge No. 1, Guwahati for recovery of a sum of Rs. 61,02,655.25 (Rupees Sixtyone lakhs two thousand six hundred fiftyfive and twentyfive paise). The Tribunal now shall send back the suit to the Court as indicated above for disposal in-accordance with law.
Shri D. Sur appears for the Respondents No. 1, 3 and 4. Shri M.K. Choudhury appears for Respondent No. 2, Shri Bhowmik and other Advocates appears for the Petitioners.
(III) Civil Rule No. 5930/97 arises out of Title Suit No. 9 of 1989 in the Court of the learned Assistant District Judge, Lakhimpur, North Lakhimpur for realisation of a sum of Rs. 12,76,329.21 (Rupees Twelve lakhs seventysix thousand three hundred twentynine and twentyone paise) shall be sent back by the Tribunal to the Court as indicated above.
Heard Shri C.K. Sarma Barua, learned Advocate for the Petitioner, Shri D. Sur appears for Respondents No. 1, 2 & 4 and Shri M.K. Choudhury appears for Respondent No. 3.
(IV) Civil rule No. 2029 of 1998 arises out of an Original Application No. 30 of 1998 pending before the Debts Recovery Tribunal, Guwahati for realisation of a sum of Rs. 75,69,618.20 (Rupees seventyfive lakhs sixtynine thousand six hundred eighteen and twenty paise) by the Assam Co-operative Apex Bank. The application shall now be returned to the Bank to do the needful. The period before the Tribunal as well as before this Court spent shall stand excluded for computing the period of limitation.
Heard Shri Das, learned advocate for the Petitioner, Shri Sur appears for the Respondent No. 1 and 3 and Shri M.K. Choudhury learned Advocate appears for Respondent No. 2.
(V) Civil Rule No. 5786 of 1997 arises out of an Original Application No. 10/97 filed by the Assam Co-operative Apex Bank Limited for realisation of a sum of Rs. 11,92,32,157.42 (Rupees eleven crores ninety two lakhs thirty two thousand one hundred fifty seven and forty two paise). The said application shall now be returned to the Bank to do the needful. The period spent before the Tribunal and before this Court shall stand excluded for computing the period of limitation. The money deposited by the Bank for original application by way of Bank draft in lieu of Court fee shall be refunded to the Bank by the Tribunal.
Heard Shri Kalita, learned Advocate for the Petitioner, Shri Sur appears for the Respondents No. 1, 3 and 4 and Shri M.K. Choudhury, learned Advocate appears for Respondent No. 2. The order for the sale of sugar shall be implemented by the authority and the money received shall be handed over to the Assam Co-operative Apex Bank for adjustment against the loan. There is no need to again decide the question of validity of the Act. That aspect of the matter has been decided in a separate Judgment and that shall hold the field.