Calcutta High Court (Appellete Side)
Contai Co-Operative Bank Limited & Anr vs Union Of India & Ors on 18 January, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1
18.01.2019.
Item no. 78.
Court No. 14
ap
W.P. No. 7186 (W) of 2018
Contai Co-operative Bank Limited & Anr.
Versus
Union of India & Ors.
Mr. Asim Kumar Roy.
..For the petitioners.
Mr. Kaushik Chanda, Ld. A.S.G.
Mr. Biswajit Konar.
...For the Union of India.
Mr. Raja Saha,
Mr. Tapas Kumar Mondal.
...For the State.
Mr. S.P. Pahari.
....For the respondent no.3.
The question of law involved in the matter had been framed earlier on 12th June, 2018 when the matter was admitted. The matter has come up for final hearing today.
The facts of the case are, inter alia, that the respondent no.3 borrowed sums of money from Contai Co- operative Bank Limited and aggrieved by the action of recovery initiated by the Bank, had moved the Consumer Forum under the provisions of the Consumer Protection Act, 1986.
The Consumer Forum entertained the matter. Contai Co-operative Bank has filed the instant writ application 2 challenging the jurisdiction of the Consumer Forum in view of the provisions of Section 102(4) and Section 145(2) of the West Bengal Co-operative Societies Act, 2006. The two provisions are set out hereinbelow:
"102. (1) ....
(2) ....
(3) ....
(4) Any civil court or any Consumers' Dispute Redressal Forum shall not have any jurisdiction to try any dispute as mentioned in sub-section (1)."
"145. (1) ......
(2) Save as provided in this Act, no Civil Court or Revenue Court or Consumer Disputes Redressal Forum shall have jurisdiction in regard to anything done or any action taken or any order passed under this Act and, in particular, in regard to -
(a) the registration of a co-operative society or its by-
laws or an amendment of its by-laws; or
(b) the dissolution of the board of a co-operative society and the management of such co-operative society on such dissolution; or
(c) any matter concerned with dissolution or liquidation of a co-operative society;
(d) any dispute required to be referred to the Registrar under section 102."
It is evident from the above that the jurisdiction of the authorities under the Consumer Protection Act, 1986 has 3 been specifically excluded/ousted by the West Bengal Co- operative Societies Act, 2006, which is a subsequent Act.
Counsel for the State would submit that since the 2006 Act is a subsequent Act and also that the said 2006 Act has received the assent of the President of India, the 1986 Act being a Central Act cannot have precedence over the 2006 Act. There is force in the submissions of the learned Counsel for the State. There are, however, other issues to be addressed.
The learned Additional Solicitor General, Mr. Kaushik Chanda, had relied upon a judgment of the Hon'ble Supreme Court in the case of Virender Jain Vs. Alaknanda Coop. Group Housing Society Ltd. reported in (2013) 9 SCC
383. In the said case the Hon'ble Supreme Court had held that the fora under the 1986 Act would have jurisdiction to entertain a complaint notwithstanding the fora available under the Haryana Co-operative Societies Act, 1984. In the said decision, which is rendered by three Judges' Bench of the Hon'ble Supreme Court, the facts must be noted.
The petitioner therein was a member of a Housing Co- operative Society, who was not delivered the flat unit paid for and had approached the authorities under the 1986 Act. The jurisdiction of 1986 Act, over and above, the Haryana 4 Co-operative Societies Act, 1984 had to be addressed by the Hon'ble Supreme Court of India.
It is not clear to this Court as to whether the Haryana Co-operative Societies Act, 1984 has provisions similar to the provisions of Section 102 and Section 145 of 2006 Act, as set out hereinabove.
Be that as it may, it appears to this Court that the facts of the said case are also substantially different from the instant case.
In the instant case, a defaulting loanee of the society has despite a specific bar under the 2006 Act, approached the Consumer Forum under the 1986 Act.
The above distinction in the facts of Virender Jain (supra)'s case and the instant case are glaring and cannot be ignored by this Court.
The learned Counsel for the writ petitioner Society also relied upon an earlier three Judges' Bench decision of the Hon'ble Supreme Court which specifically had addressed the issue of jurisdiction of the Consumer Protection Act vis-à-vis the Co-operative Societies Act. The said decision being Kishore Lal - Vs. - Chairman, Employees State Insurance Corporation is reported in 2007 5 (4) SCC 579. At paragraph 17, the Hon'ble Supreme Court has held as follows:
"17. It has been held in numerous cases of this Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of Spring Meadows Hospital and another Versus Harjol Ahluwalia through K. S. Ahluwalia and another, it was held that the C. P. Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka Versus Vishwabarathi Housing Building Coop. Society and others, the Court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the C. P. Act have jurisdiction to entertain a complaint despite the fact that other fera/courts would also have jurisdiction to adjudicate upon the lis. These judgements have been cited with approval in paras 16 and 17 of the judgement in The Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through Lrs. and others. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment the Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated."
(emphasis applied) From the above, it is evident and clear that while it is true that in certain cases as similar to the Virender Jain's 6 case (supra), the forum under the Consumer Protection Act can be approached, the exclusion of jurisdiction clauses contained in the 2006 Act cannot be ignored.
The Virender Jain decision (supra) must therefore be seen in the special facts of the case. The ratio of any decision must be seen in the factual matrix of the case. The Hon'ble Supreme Court in the case of Arasmeta Captive Power Co. (P) Ltd. - Vs. - Lafarge India (P) Ltd. [(2013) 15 SCC 414] has held that paragraphs 32 to 34 as follows:
"32. In Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] it has been stated (SCC p.221, para 18) that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn V. Leathem [1901 AC 495 (HL)] it has been held that the case is only an authority for what it actually decides, and not what logically follows from it.
33. Lord Halsbury in Quinn [1901 AC 495 (HL)] has ruled thus: (AC p. 506) "...... there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."7
34. In Krishena Kumar - Vs. - Union of India [(1990) 4 SCC 207 : 1991 SCC (L&S) 112 : (1990) 14 ATC 846] the Constitution Bench, while dealing with the concept of ratio decidendi, has referred to Caledonian Railway Co. - Vs. - Walker's Trustees [(1882) LR 7 AC 259 : (1881-85) All ER Rep 592 : 46 LT 826 (HL)] and Quinn [1901 AC 495 (HL)] and the observations made by Sri Frederick Pollock and thereafter proceeded to state as follows: (Krishena Kumar case [(1990) 4 SCC 207 : 1991 SCC (L&S) 112 : (1990) 14 ATC 846], SCC pp. 226-27, para 20) "20. .... The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or Judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn., Vol 26, para 573):
'The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear .....it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as it they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.'"
(emphasis supplied) The decision of the Hon'ble Supreme Court in Kishore Lal case (supra) approving the earlier decision in The Secretary, Thirumurugan Co-operative Agricultural Credit Society - Vs. - M. Lalitha (Dead) through Lrs. and others 8 case is more apt and applicable in the facts of the instant case.
Learned Counsel for the petitioner has also relied upon an earlier full Bench decisions of this Court rendered by a full Bench being the case of Anjan Chowdhury - Vs. - Anandaneer Co-operative Registered Housing Society reported in AIR 1990 Calcutta 380. A similar view has been taken therein. An application under Order VII, Rule 11 of the Code was allowed by the Bench rejecting the plaint in a civil suit filed by a Member against a Co-operative Society.
The Statute then was The West Bengal Co-operative Societies Act, 1973 and 1983. In the said two Acts there was exclusion of jurisdiction clause as contained in the 2006 Act. Despite thereof the full Bench held that the fora under said 1973 and 1983 Acts and Scheme thereof would exclude the jurisdiction of the Civil Court and the plaint in the said case was rejected.
There is yet another factor that must be noticed. The West Bengal Co-operative Societies Act, 2006 is a complete Code within itself. It provides for, inter alia, a Registrar to first enter into the dispute and thereafter refer the dispute if he so deems it fit to an Arbitrator. The nature of disputes referable are set out in Section 102 of the West Bengal Co- 9 operative Societies Act, 2006. The procedure could also be termed as summary as can get as opposed to a Civil Court.
The Arbitrator in practice follows the General Principles of natural justice otherwise contained in the Code of Civil Procedure, 1908. He is required to dispose of the disputes within six months of the reference.
An appeal lies from the Award to a specialized Tribunal under the 2006 Act known as the West Bengal Co- operative Tribunal, which has a set of Rules of its own. Even disputes relating to election of Members to a Society are triable before the Co-operative Election Commission under the West Bengal Co-operative Election Rules of 2014.
In view of the abundancy and comprehensiveness of the 2006 Act, which provides for a summary remedy against any action of a Co-operative Society, Co-operative Bank, Agricultural Society or Agricultural Rural Development Bank therefore, provides adequate comprehensive and quick remedy to any aggrieved person within the scope of the disputes set out under Section 102 of the 2006 Act.
In my view, therefore, the dicta of Supreme Court in the Kishore Lal's case (supra) at paragraph 17 as set out hereinabove must and should be applied in facts of the case and in the light of the provisions of the 2006 Act and hence, 10 the proceeding conducted by the Consumer Forum under the 1986 Act, in the instant case, must be quashed and set aside.
It is made clear that the respondent no.3 may approach the Assistant Registrar Co-operative Societies relating to his dispute and if the same is done, within a period of one month from the date of receipt of the copy of this order, the Assistant Registrar Co-operative Societies shall take immediate and expeditious steps in accordance with 2006 Act.
With the aforesaid observation, the writ application is allowed and stands disposed of.
There will be, however, no order as to costs. Photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)