Remanded

Pune District Central Co-Operative Bank Ltd, through Gen. Manager/Senior Officer v. Kaviraj Vividh Karyakari Seva Sahakari Sanstha Maryadit and Ors.

Bombay HC8 Aug 2012LPA/133/2012

Case brief

AI extract

What is this about?

In Letters Patent Appeals, the High Court of Bombay held that appeals under Section 23 of the Maharashtra Co-operative Societies Act must be filed within a reasonable period. It set aside the Single Judge's order and remanded the matter to the Divisional Joint Registrar to determine if the 614-day delay was justified based on affidavits under cross-examination.

What did the court decide?

The judgment of the learned single judge set aside; the appellate authority directed to decide maintainability of appeals based on evidence regarding the delay.

Pune District Central Co-Operative Bank Ltd, through… — Service and Employment | Bombay HC (2012)

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LPA133-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION

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LETTERS PATENT APPEAL NO.133 OF 2012 IN

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WRIT PETITION NO.4726 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Kaviraj Vividh Karyakari Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.134 OF 2012 IN

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WRIT PETITION NO.4798 OF 2012 Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Chaitanya Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.135 OF 2012 IN

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WRIT PETITION NO.4796 OF 2012 Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Yash Raj Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.136 OF 2012

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WRIT PETITION NO.4801 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Shriram Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

LPA133-12

WITH

LETTERS PATENT APPEAL NO.137 OF 2012 IN

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WRIT PETITION NO.4804 OF 2012 Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Shri Hanuman Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.138 OF 2012 IN

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WRIT PETITION NO.4805 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Hanuman Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.139 OF 2012

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WRIT PETITION NO.4795 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Shriram Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.140 OF 2012

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WRIT PETITION NO.4797 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Jai Hanuman Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

LPA133-12

WITH

LETTERS PATENT APPEAL NO.141 OF 2012 IN

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WRIT PETITION NO.4728 OF 2012 Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Harshavardhan Patil Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.142 OF 2012 IN

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WRIT PETITION NO.4724 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Harshavardhan Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.143 OF 2012 IN

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WRIT PETITION NO.4802 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Shri Pandurang Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.144 OF 2012

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WRIT PETITION NO.4794 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Jai Hanuman Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

LPA133-12

WITH

LETTERS PATENT APPEAL NO.145 OF 2012 IN

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WRIT PETITION NO.4803 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Vijay Yash Raj Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.146 OF 2012 IN

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WRIT PETITION NO.4799 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Kalbhairavnath Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.147 OF 2012 IN

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WRIT PETITION NO.4730 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Shivshankar Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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WITH

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LETTERS PATENT APPEAL NO.148 OF 2012

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WRIT PETITION NO.4800 OF 2012

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Pune District Central Co-op. Bank Ltd....Appellant

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Versus

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Shriram Vividh Karyakari Seva Sahakari Sanstha Ltd. & Ors. ....Respondents.

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LPA133-12

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Mr. Y.S. Jahagirdar, Senior Advocate a/w. Mr. S.S. Kanetkar for Appellant.

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Mr. S.P. Kadam, for respondent No.1.

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Mr. A.B. Vyagyani AGP a/w Mr.Prashant Darandale AGP, for respondent No.4 and 5 -State.

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CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR J. Wednesday, August 8, 2012.

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P.C.:

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In this group of Letters Patent Appeals 16 in number, the appellant-Pune District Central Co-op. Bank Ltd. has challenged the judgment and order dated 29 June 2012 of the learned single Judge dismissing the Writ Petitions filed by the appellant-bank under Articles 226 and 227 of the Constitution. The appellant in the said Writ Petitions, had challenged the common judgment and order dated 8 May 2012 passed by the Divisional Joint Registrar, Co-opertive Societies, Pune Division, Pune (for short 'the appellate authority') by which the appellate authority had held that since no period of limitation has been prescribed in section 23 of the Maharashtra Co-operative Societies Act, 1960 (for short “the Act”) the respondents herein, who have filed appeals before the Divisional Joint Registrar were entitled to file and prosecute appeals against the decision of the appellant-bank rejecting their application for being enrolled as members of the appellant-bank. Accordingly, the appellate authority held the appeals to be maintainable and decided to hear the appeals on merits, notwithstanding the delay of more than 614 days.

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The broad facts leading to filing of these appeals are not in dispute. Appellant No.1 in each of these appeals is the Pune District Central Co-operative Bank Ltd. ('the bank' for sake of convenience). Respondent No.1 society in each appeal shall be collectively referred to as 'respondent societies. The applications of the respondent societies, for being enrolled as members of the Bank made in August 2009 were rejected by the Board of Directors of the Bank by resolution dated 28 November 2009. The Bank relied upon the recommendations of the Professor Vaidyanathan Committee, which according to the Bank, had recommended that no new resource / multipurpose co-operative society should be registered in the State of Maharashtra.

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The above decision which was communicated to the respondent societies which received a copy of the above decision from the Bank, on 8 December 2009.

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Aggrieved by the above decision, the respondent societies preferred appeals before Divisional Joint Registrar of Co-operative Societies Pune under section 23 (2) of the Act, after 614 days. The appellate authority held that no period of limitation has been prescribed in section 23 of the Act. The appellate authority held the appeal to be maintainable and that the respondent societies were entitled to argue the appeals on merits. Aggrieved by the said orders the Bank filed a group of petitions leading to filing of the present appeals. The learned single Judge has dismissed the writ petitions. Hence the present appeals.

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Admittedly, section 23 of the Act conferring the right of appeal does not stipulate any period of limitation and, the parties agree that as per

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the well-settled legal position, appeal is, therefore, required to be filed within a reasonable period. The respondent societies contended before the appellate authority that since the appeals were filed within three years from the date of communication of the decision of the lower authority, the appeals were filed within reasonable period. The appellate authority as well as the learned single Judge accepted the above contention.

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Learned counsel for the Bank has vehemently submitted that whether the appeal is preferred within the reasonable period is a question of fact or a mixed question of law and fact to be decided in light of the facts and circumstances of each case and the appellate authority as well as the learned single Judge held in proceedings on the basis that an appeal filed within the period of three years ought to be treated as an appeal filed within a reasonable period.

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Learned counsel for the appellant /bank submitted that the decisions relied upon by the learned single Judge for taking the above view dealt with cases where the provisions of the relevant statute conferred power upon the higher authorities to take up matters in suo motu revision within a period of three years from the date of passing of the order by the appellate authority. Therefore, those decisions would not be relevant for deciding the question at hand – what is reasonable period for filing the appeals under sec.23 of the Act.

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Our attention has been invited to the provisions of section 152, 153 and 154 of the Act. Section 152 confers right to file an appeal against orders passed under certain provisions of the Act and sub-section (3) thereof provides that any appeal under sub-section (1) or (2) of section 152

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shall be filed within two months of the date of communication of the order or decision.

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Similarly, section 153 specifically provides that in all cases where it is provided under the Act that an appeal may be filed against any decision or order within a specified period, the appellate authority may admit an appeal after expiry of said period, if the appellant satisfies the appellate authority that he had a sufficient cause for not preferring the appeal within such period.

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Similary, section 154 confers powers of revision on the State Government or the Registrar as the case may be and sub-section (3) thereof provides that no application for revision shall be entertained, if made after two months of the date of communication of the decision or the order. The power to condone delay is however conferred on the revisional authority if the applicant satisfies that he had sufficient cause for not making the application within such period.

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It is therefore, vehemently submitted by the learned counsel for the appellant-Bank that section 23 conferring the right of appeal against decision of the society refusing admission to membership to any person duly qualified under the Act and its by-laws, does not prescribe any period of limitation. It is also submitted that the Act and the by-laws also stipulate various time limits for the Bank to decide an application, failing which there is deemed acceptance of the application for membership and similarly, the Registrar of Co-operative Societies hearing the appeal against the decision of the Bank refusing admission to membership is expected to decide the appeal within a period of three months from the date of receipt

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of the appeal. Hence there is intrinsic indication in the statute itself that the aggrieved person whose application for membership has been refused is expected to file the appeal within 60 days or at least three months. It is therefore, vehemently submitted on behalf of the Bank that considering the legislative scheme of sections 23, 152 and 154, the reasonable period to file the appeal cannot exceed three months from the date of communication of the decision by the Bank to the applicant.

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On the other hand, the learned counsel for the respondent societies submitted that sub-section (1) of section 23 specifically provides that no society shall, without sufficient cause, refuse admission to membership to any person duly qualified under the Act and its by-laws. Hence, admission to membership is a rule and refusal an exception. It is also submitted that the very Legislature which has stipulated period of 60 days for the society to decide the application for membership, period of three months to decide the appeal and limitation is for filing the appeal under section 152, and for the revision under sec.154, the very same Legislature has consciously not stipulated any specific period of limitation for filing the appeal against the decision of the society refusing membership. It is submitted that appellate authority as well as the learned Single Judge have rightly held that appeal, if filed within a period of three years from the date of communication of decision, ought to be heard and decided on merits as the three year period is the period of limitation prescribed by the residuary Article in the Schedule to the Limitation Act, 1963.

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Having heard the learned counsel for the parties, we do find some substance in the submission made by the learned counsel for the respondent

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societies that since the legislature has not prescribed any specific period of limitation for the aggrieved person to prefer an appeal against the decision of concerned Co-operative Society refusing the application for membership, it is not possible to treat the period of 60 days or three months as the period of limitation for filing such an appeal. Nevertheless, we find substance in the submission of the learned counsel for the appellant-Bank that the appeal must be preferred within reasonable period and as to what is reasonable period would depend on the facts and circumstances of each case.

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Coming to the facts of the present case, we find that in all cases the explanation offered by the respondent societies for the time taken for filing the appeal of 614 days was to the effect that after communication of the impugned decision in August 2009, the then chairman of the Bank and the other office bearers agreed to consider the applications of the respondent societies for enrolling them as members of the Bank and that certain meetings also took place and that it was amicably resolved not to initiate any legal proceedings in the matter of membership. It is also the case of the respondent societies that it was only on or about 3 August 2011, that the office bearers of the Bank orally informed the respondent societies that no further negotiations will be held and the decision refusing application for membership stands confirmed.

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It was in view of the aforesaid statement of the respondent societies (which were appellants before Divisional Joint Registrar) that the Bank submitted application for permission to cross-examine the office bearers of the respondent societies. According to the Bank that there were no such negotiations after passing of the impugned order on 8 December

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2009 and before the date of filing the appeals.

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It is true that ordinarily while deciding application for condonation of delay or for deciding whether an appeal has been filed within reasonable period, the appellate Court or the appellate authority is not required to permit the parties to lead oral evidence. Moreover, such applications for condonation of delay are decided on affidavits only as the Courts, Tribunals and other appellate authorities which are otherwise hardpressed for time, are not to invest a lot of time and energy for recording oral evidence of the parties on the question of delay in filing the appeals or revisions.

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However, in the present case the time taken by the respondent societies for filing the appeals is quite substantial, being 614 days. Having regard to the above fact, we are of the view that in the peculiar facts and circumstances of this case, the interests' of justice would be served if the respondent societies (appellants before the Divisional Joint Registrar) are given an opportunity to place on record of the appellate authority the affidavits of their concerned office bearers giving further particulars about the alleged meetings referred to in paragraph No.3 of their application for condonation of delay and the Bank is also given an opportunity to crossexamine the witnesses whose affidavits would be filed as aforesaid. In order to ensure that this exercise is completed expeditiously, the concerned office bearers of the respondent societies (appellants before the appellate authority) shall file their affidavits within four weeks from today and they shall be permitted to be cross-examined by the Bank within four weeks thereafter. The appellate authority shall thereafter decide in the facts and circumstances of each case whether the appeals were filed within

LPA133-12

reasonable period.

The judgment and order of the learned single Judge is accordingly set aside and the appellate authority shall first decide the question whether the appeals filed by the respondent societies (respondent No.1 in each of these appeals) were filed within reasonable period. The order of the appellate authority holding that since no period of limitation is prescribed the appeals are maintainable also stands modified in the aforesaid terms.

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We may not be treated to have expressed any opinion on the question whether the appeals were filed within reasonable period as that is the precise question to be decided by the appellate authority after considering the material on record in light of the aforesaid observations and directions.

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All the appeals are accordingly disposed of. Similarly, the applications are disposed of.

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CHIEF JUSTICE

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N.M.JAMDAR, J.

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Mlns

Pune District Central Co-Operative Bank Ltd, through Gen. Manager/Senior Officer v. Kaviraj Vividh Karyakari Seva Sahakari Sanstha Maryadit and Ors.

Case brief

What is this about?

What did the court decide?

Pune District Central Co-Operative Bank Ltd, through Gen. Manager/Senior Officer v. Kaviraj Vividh Karyakari Seva Sahakari Sanstha Maryadit and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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