Calcutta High Court
Contai Co-Operative Bank Ltd. And Anr. vs Sagar Food Products And Ors. on 12 October, 2004
Equivalent citations: 2005(3)CHN289
Author: Barin Ghosh
Bench: Barin Ghosh
JUDGMENT Alok Kumar Basu, J.
1. As common question of law is involved in all the three appeals, we propose to dispose of all the three appeals by a common
2. In M.A.T. Nos. 1493 and 1494 of 2004 appellants and the respondents are common while in M.A.T. No 1790 of 2004 the Krishnagar City Co-operative Bank Ltd. and Ors. are the appellants and Sukumar Ghose and Anr. are the respondents. The respondents in all the three appeals figured as writ petitioners before the learned Single Judge whose judgment and order is subject-matter of challenge in all the three appeals.
3. The writ petitioner respondents lost in the award case brought by the appellants and all the writ petitioners respondents thereafter preferred appeal challenging the award as contemplated in Section 136 of the West Bengal Cooperative Societies Act, 1983 (hereinafter to be referred as the Act). Admittedly all such appeals were filed within 30 days after obtaining respective certified copy of the award and admittedly, all the three appeals were dismissed by the Tribunal holding inter alia that all the appeals were filed beyond the prescribed period of limitation.
4. The aggrieved party thereafter preferred writ petitions contending inter alia that although under provision of Section 136(1) of the Act read with item No. 11 of Third Schedule to the Act, an aggrieved party is supposed to prefer appeal within a month from communication of the award, as Rule 227(4)(d) requires filing of the certified copy of the award along with the memorandum of appeal, the aggrieved party filed the respective appeals within 30 days from the supply of certified copy and hence, the Tribunal should have excluded the time taken for supply of certified copy in the matter of computation of the period of limitation and on that score, there was no delay in preferring the respective appeals and, therefore, the Tribunal was not justified in dismissing appeal on the point of limitation.
5. The learned Single Judge in His judgment which was almost identical in all the three writ petitions observed that as there is apparent inconsistency between the provision of appeal appearing in Section 136(1) of the Act and Rule 227(4)(d), the Tribunal ought to have excluded the period spent for obtaining the certified copy when admittedly, the appellant had no role whatsoever in the matter of obtaining certified copy and when the appellant in all the three cases applied for certified copy on the same date when the award was communicated to them. The learned Judge also explained the situation with reference to the provision of Rule 227(4)(d) of the Rule that unless a certified copy is filed with the memorandum of appeal, such memorandum of appeal cannot be accepted and hence, to give an effective meaning to the provision of both Section 136(1) of the Act and to the provisions contained in Rule 227(4)(d) the logical and reasonable interpretation would be that where appeal has been preferred within 30 days from obtaining the certified copy, it would be considered that the appeal has been filed well within the prescribed period under the Act notwithstanding the time mentioned in item No. 11 of the Third Schedule to the Act. The learned Judge on such observation allowed the writ petitions and set aside the order of the Tribunal. The Co-operative Society while preferring the present appeals has seriously challenged the observation of the learned Single Judge.
6. Mr. Bhuniya appearing for the appellants in the first two appeals submits with much force that it is not open to any Court to enlarge the scope of a statutory provision or to substitute any word in the existing Statute. Mr. Bhuniya contends that under the provision of Section 136(1) of the Act read with Third Schedule to the Act it is very much clear that the Statute prescribed the period of limitation 30 days from the date of communication of the award and it has been clarified in Rule 177 how such communication is to be effected and there is no denial from the side of the respondent that such communication was effected as soon as the award was declared. Mr. Bhuniya contends that the learned Single Judge overlooked the statutory provision and in fact, substituted the words "from communication of the award" with that by the words "from obtaining the certified copy" and thereby the learned Judge also made an attempt to enlarge the existing statutory provision and this has been done without any legal authority. Mr. Bhuniya to substantiate his point has drawn our attention to a decision of the Hon'ble Supreme Court rendered in the case of Union of India v. Deokinandan Agarwala reported in AIR 1992 SC page 96 para 14.
7. Mr. Bhuniya contends that even if there is any inconsistency between the provision of a section under the Act and the provision of a Rule to the Act, the provisions of the statute shall prevail and it is the accepted principle of law, but, in the present case the learned Single Judge gave unusual importance to the provision of the Rule ignoring the specific mandate of the statute and this is not permissible in the eye of law.
8. Mr. Bhuniya contends that it is accepted legal position that what is not permissible directly cannot be allowed indirectly and the learned Single Judge while allowing the writ petition has exactly done so, because, when admittedly there was no application of the provisions of the Limitation Act in preferring an appeal under the Act, the learned Judge by excluding the period spent for obtaining the certified copy in the matter of computation of the limitation period under the Act has introduced the Limitation Act and this has been done contrary to the prescribed statutory provision.
9. Mr. Bhuniya finally contends that a Division Bench of this High Court has already held in the case of Egra Thana Co-operative Agricultural Marketing Society Ltd. and Ors. v. Registrar of Co-operative Societies and Ors. reported in 2003 (2) CHN page 460 that Limitation Act has got no application in the matter of preferring appeal under the Act and the Division Bench further held that the view that a Tribunal can take recourse to the provision of Limitation Act under Order 41 Rule 3(A) of the C.P.C. is totally erroneous and unfounded. Mr. Bhuniya contends that the learned Single Judge committed a great mistake by ignoring the ratio of the decision rendered by the Division Bench of this Court and hence, the order of the learned Single Judge must be set aside and it must be held that the Tribunal was fully justified in dismissing the appeals on the ground of limitation.
10. Mr. Moitra while representing the appellant in the 3rd appeal by and large adopted the submission of Mr. Bhuniya and Mr. Moitra submitted further that it would have been better for the learned Single Judge to refer the matter to the Hon'ble Chief Justice so that a Larger Bench may be constituted to examine the question when there is already a decision of the Division Bench of this Court touching the self-same point. Mr. Moitra contends that when the Division Bench of this Court has clearly held regarding non-application of the provisions of the Limitation Act, the learned Single Judge probably was not justified in the matter of excluding the period spent for obtaining certified copy while preferring an appeal under the Act, because, what the learned Judge did was, in fact, application of the provision of Limitation Act in the matter of preferring the appeal under the Act.
11. Mr. Bhattacharya representing the writ petitioners respondents in the first two appeals have strongly refuted submissions of both Mr. Bhuniya and Mr. Moitra. Mr. Bhattacharya contends that the ratio of decision rendered in the case of Egra Thana Co-operative Agricultural Marketing, Society Ltd. (supra) cannot any way be a legal bar for the learned Single Judge in passing the impugned judgment, which was completely from a different legal angle and which was not a subject-matter of consideration by the Division Bench in the reported judgment.
12. Mr. Bhattacharya after taking us through the relevant portions of the reported judgment contends that factual scenario of the reported case was totally different. In the reported case, appeal was preferred along with an application for condonation of delay and the Tribunal rejected the petition for condonation of delay on merit and the point for consideration was whether the Tribunal had the jurisdiction at all to entertain a petition for condonation of delay filed under Section 5 of the Limitation Act when there is clear statutory prohibition regarding application of the provision of the Limitation Act in the matter of preferring an appeal under the Act. The Division Bench was posted with two contrary judgments and after hearing submissions of the parties appearing before it, the Division Bench expressed the view that since there is a statutory bar in the matter of application of Limitation Act while preferring an appeal under the Act, it was not open to the Tribunal to entertain the application for condonation of delay filed under Section 5 of the Limitation Act and the Division Bench further held that the Tribunal cannot derive any power from Order 41 Rule 3(A) of the C.P.C. to exercise such jurisdiction either. Mr. Bhattacharya submits that the learned Single Judge had no scope to deal with the question of limitation, but, what the learned Judge considered was the provision contained in Section 136(1) of the Act and Rule 227 (4)(d) to the Act and the learned Judge was of the view that when statute has provided a right to an aggrieved party to prefer an appeal and when the Rule to the statute prescribes that such appeal must be accompanied with certified copy of the award sought to be impugned in the appeal, any period spent for obtaining the certified copy must be excluded while computing the period of limitation, otherwise, the very statutory right would become meaningless and totally nugatory and in that perspective, the learned Judge expressed His view that when there is inconsistency between the Act and the Rule, the intention of the legislature as expressed through the Rule must have the precedent over the statute which intends to take out the statutory right of appeal.
13. Mr. Bhattacharya submits that the point should be judged from a practical angle. He contends that following the statutory mandate, an aggrieved party is required to file the appeal simply on getting communication of the award, but to draft a memorandum of appeal, the aggrieved party is supposed to set out the reasons challenging the award and unless the aggrieved party gets the opportunity to examine the award in detail, it cannot be possible for filing a memorandum of appeal and this is an integral part of the right of the aggrieved party sanctioned by the statute itself and hence, when the statutory provision takes away the effective right of filing of the appeal and the Rule provides that opportunity, the reasonable interpretation would be to afford an opportunity to the aggrieved party to get the certified copy and to file the memorandum of appeal within 30 days from obtaining the certified copy provided the aggrieved party took up the effective steps at the earliest point of time after being informed of the result of the award and he was not guilty of laches or negligence. Mr. Bhattacharya contends that it will appear from the judgment and order of the learned Single Judge that after being satisfied in each case that the writ petitioner was diligent and serious in the matter of getting certified copy and in fact, application was made for such certified copy on the very date of communication of the award, the learned Judge took a reasonable stand in resolving the inconsistency between the statutory provision and the Rule to the statute. Mr. Bhattacharya, therefore, concludes that there is no substance in the appeals under consideration and there is no scope to interfere with the judgment and order challenged through the appeals.
14. Mr. Das representing the respondents in the 3rd appeal submits that in view of the elaborate submissions made by Mr. Bhattacharya on behalf of the respondents of other two appeals he has got nothing to add, but, only to draw attention of the Court that his client applied for certified copy on the very date of communication of the award and preferred the appeal within 30 days after obtaining the certified copy.
Section 136(1) of the Act 1983 is as follows:
"An appeal shall lie from an order shown in column 2, to the authority shown in column 3, and within the period shown in column 4, of the Third Schedule to this Act".
15. The above provision should be read with item No. 11 of Third Schedule to the Act which is as follows:
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11. An order, Any person To the Co- One month decision or aggrieved. operative from the date award Tribunal on which the under having order, decision Section 96. jurisdiction. or award is communicated.
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16. From provision of Section 135(2) of the Act it is available that a Tribunal shall exercise all the powers conferred upon an Appellate Court by Order 41 in the First Schedule to the Code of Civil Procedure.
17. Order 41 Rule 1(1) is as follows :
"Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the Judgment
18. Order 41 Rule 1(2) is as follows:
"The memorandum shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed without any argument or narrative; and such ground shall be numbered consecutively."
19. Order 41 Rule 1(3) is as follows:
"Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there."
20. Now we may set out Rule 227(4)(d) which is as follows:
"Every memorandum of appeal or application for review shall be accompanied by a certified copy of the award or order complained of."
21. It is provided in Rule 227(4)(e) that the Secretary attached to the Tribunal shall examine the memorandum of appeal or application for review to satisfy itself whether such memorandum or application conforms to the provisions of the Act and the rules and like provision of Rule 3 of Order 41 of the C.P.C., a memorandum of appeal not conforming to the provisions of the Act and the Rules, shall either be returned for correction or shall be placed before the Tribunal for final decision.
22. From the provisions of Order 41 Rule 1 and Rule 3 of the C.P.C. read with provisions of Rule 227 (4)(d) and (e), it is very much clear that an aggrieved party must file a memorandum of appeal stating therein the grounds for challenging the award and such memorandum of appeal must accompany certified copy of the award. It is quite reasonable to hold that to prefer an appeal in the manner as desired by the statute and the rules, the aggrieved party or his pleader must examine the contents of the award and some communication of the award as provided under Rule 177(4) cannot be considered to be an adequate opportunity for preparation of a memorandum of appeal without obtaining certified copy of the same.
23. Rule 181 prescribes the procedure for obtaining certified copy of the order passed under the Act and Sub-rule (4) of Rule 181 provides that such copy shall be supplied, as far as practicable, within two weeks from the date on which the requisites are supplied. If we consider this Rule along with the prescribed period of limitation as provided in Section 136(1) of the Act, an aggrieved party is required to apply for certified copy soon after the award is communicated and he is supposed to get the said certified copy within two weeks under the Rule and in that case, there would be no scope for violation of the prescribed period of limitation under the Act as the aggrieved party can very well file the memorandum of appeal along with certified copy within 30 days from the date of communication of the order, but, the entire exercise certainly depends on the strict compliance of the provision of Sub-rule (4) of Rule 181 to the Act which prescribes the procedure for supply of certified copy.
24. Now, the real problem starts regarding the actual delivery of the certified copy by the person or agency who is supposed to supply certified copy in compliance of Rule 181(4) to the Act and if there is delay from the side of that authorized person in the matter supplying the certified copy, the aggrieved party is to suffer in the matter of exercising his statutory right in the form of preferring an appeal The learned Single Judge examined the question from this angle and after giving his consideration to the provision of Rule 227(4)(d), he was of the view that to resolve the apparent inconsistency between the Act and the Rule attempt must be made to sort out the inconsistency in such a manner which would help an aggrieved party to exercise his statutory right. An unreported decision of a Division Bench of this High Court rendered in the case of F.M.A. 606 of 2004 may be referred in this context to substantiate our point. The relevant portion of that unreported judgment is given below:
"We have no dispute to the proposition that the Limitation Act does not apply and accordingly the mandates contained in that Act also cannot be looked at all. But the fact remains that a meaningful meaning must be given to the right to prefer the appeal as has been conferred. It cannot be presumed that while such grant has been given, the same has been made subject to the action on the part of the person who is obliged to supply the certified copy. The appeal cannot be preferred at any time as the appellant feels. The same must be preferred within 30 days from the date the order is communicated. The order as communicated cannot substitute the certified copy. Therefore, after the order is communicated, the person aggrieved by the order is required to obtain a certified copy thereof. The person who is required to issue a certified copy has not been obliged to issue the certified copy within a time specified. In such situation if the person who has been obliged to issue the certified copy sits over the application made therefor for a period of over 30 days, will the right of appeal as bestowed by the statute be lost? We do not think so."
25. Thus, having regard to the submissions of the rival parties to these proceedings and after examination of the relevant provisions of the Code of Civil Procedure, the Act and the Rules to the Act, we are of the view that the learned Single Judge did neither enlarge the scope of the statutory provision nor substitute any word by His choice in the Statute, rather, the learned Single Judge taking recourse to the golden rules of interpretation resolved the apparent inconsistency appearing in the statutory provision and the Rule in the most reasonable manner to enable an aggrieved party to exercise that right which has been recognized by the statute itself and in doing so, the learned Judge had no scope to be guided by the ratio of the decision reported in 2003(2) CHN page 460. Accordingly, we hold that there is no merit in either of the three appeals which are before us for disposal and all the three appeals must be dismissed.
26. All the three appeals are accordingly dismissed without any order as to costs.
27. Stay of operation of this order is dismissed as we find no force behind the prayer.
28. Urgent xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all necessary legal formalities.
Barin Ghosh, J.
29. I agree.