Gujarat High Court
Dipakbhai Prahaladbhai Patel & vs Rameshbhai Tribhovanbhai Patel & on 8 September, 2015
Equivalent citations: AIR 2016 (NOC) 260 (GUJ), 2016 AIR CC 1 (GUJ), (2016) 2 GUJ LR 976, (2016) 2 GUJ LH 421
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/14419/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14419 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DIPAKBHAI PRAHALADBHAI PATEL & 1....Petitioner(s)
Versus
RAMESHBHAI TRIBHOVANBHAI PATEL & 1....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 08/09/2015
ORAL JUDGMENT
1. By the present petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 2.9.2015 passed by the Board of Nominee, below application mark 48 in Lavad Suit No.179 of 2015.
2. The respondent No.1 has filed Lavad Suit No.179 of 2015 initially against the Election Officer/ In-charge Manager of Mehsana District Central Co-operative Bank Ltd. and the grievance voiced in Page 1 of 25 HC-NIC Page 1 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT such suit is as regards election of delegates from amongst the members of the said Bank. In such suit, the petitioners and other persons were subsequently joined as defendants.
3. The petitioners then preferred application Mark 48 on 24.8.2015, stating that the suit is time barred and does not disclose cause of action and the suit be ordered to be rejected by framing issues on above points. The Board of Nominee has rejected such application by impugned order dated 2.9.2015.
4. Learned advocate Mr. Desai for the petitioners submitted that when the suit cannot be entertained being barred by limitation, it could be said that the Board of Nominee has assumed the jurisdiction not vested with it and therefore, on preliminary issue of limitation, the suit could be rejected at the inception without even taking evidence of the parties. Mr. Desai submitted that Section 97 of the Gujarat Co-operative Societies Act, 1963 ('the Act') provides for filing of the lavad suit within prescribed time limit and when the suit is clearly time barred, it is required to be rejected by raising preliminary issue of limitation. Mr. Desai submitted that even the suit does not disclose cause of action and therefore, absence of cause of action in the suit would make the suit non-maintainable and therefore, by raising such issue as preliminary issue, the suit is required to be rejected. Mr. Desai submitted that learned Board of Nominee has committed serious error in not rejecting the suit on such two preliminary issues and thereby failed to exercise the jurisdiction vested with it.
5. Having heard learned advocate Mr. Desai for the petitioners, it appears that the petitioners wanted the suit to be rejected on the issue of limitation as also on the ground of non-disclosure of the cause of action and therefore, they preferred application at Mark-48 Page 2 of 25 HC-NIC Page 2 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT on 24.8.2015 like the application for rejection of the plaint under Order-VII Rule-11 of the Code of Civil Procedure, 1908 ('the Code).
6. It is required to note that as per the provisions of the Act and the relevant Rules of the Gujarat Co-operative Societies Rules, 1965 ('the Rules') governing the procedure to decide the disputes by the Board of Nominee, there is no scope for rejection of the suit on the issues of limitation and non-disclosure of the cause of action like the one provided in Order-VII Rule-11 of the Code for rejection of the plaint. This Court had an occasion to consider the question whether the plaint of the Lavad Suit filed before the Board of Nominee under the Act could be rejected under Order-VII Rule-11 of the Code. Examining the provisions of Sections 97 to 99 of the Act and Rules 41,43 and 44 of the Rules, vis-a-vis provisions of Order-VII Rule-11 of the Code, this Court has held and observed in the case of Lokhandwala Irfanbhai Hanifbhai Vs. Dabhoi Mercantile Cooperative Society Limited reported in 2014(1) GLR 786, in para 7 to 21 as under:-
"7. Having heard the learned advocates for the parties and having perused the copy of the suit plaint with the application filed by the petitioner for rejection of the suit, it appears that the application at Exh. 16 is titled as an application under Order 7, Rule 11A and 11D of the Code for rejection of the suit. It further appears that the petitioner has resorted to the provision of Order 7, Rule 11 of the Code because there is no specific provision for rejection of plaint either in the Act or the Rules framed thereunder. The question therefore would be whether the provisions of Order 7 Rule 11 of the Code are applicable to the proceedings of Lavad Suit filed under the provisions of the Act.
8. For the above purpose, some provisions of the Act and the Rules applicable for deciding the dispute under Section 96 of the Act are required to be referred.
9. Section 97 of the Act provides for Limitation. Sub-sections (2) and (3) thereof read as under:-
"(2) The period of limitation in the case of any dispute other than those mentioned in sub-sect90j (1) which are required to be Page 3 of 25 HC-NIC Page 3 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT referred to the Registrar under section 96 shall be regulated by the provisions of the Indian Limitation Act, 1908 (IX of 1908), as if the dispute were a suit, and the Registrar a Civil Court.
(3) Notwithstanding anything contained in sub-section (1) and (2), the Registrar may admit a dispute after the expiry of the period of limitation if the applicant satisfies him that he had sufficient cause for not referring the dispute within such period, and the dispute so admitted shall be a dispute which shall not be barred on the ground that the period of limitation had expired."
10. Section 98 of the Act provides for powers of Registrar to refer the dispute to the Board of Nominee, to withdraw any dispute from the Board of Board and to suspend the proceedings before the Board of Nominee.
11. Section 99 of the Act provides for settlement of dispute and power of Registrar, his nominee or Board of Nominee, which reads as under:-
"99. Procedure for settlement of disputes and power of Registrar, his nominee or board of nominees:
(1) The Registrar, or his nominee or board of nominees, hearing a dispute under section 98 shall hear the dispute in the manner prescribed, and shall have power to summon and enforce attendance of witnesses including the parties interested or any of them by the same means and as far as possible in the same manner as provided in the case of a Civil Court by the Code of Civil Procedure, 1908 (V of 1908).
(2) Except where a dispute involves complicated question of law or fact, no legal practitioner in his capacity as a legal practitioner or as person holding a power of attorney shall be permitted to appear on behalf of any party at the hearing of a dispute.
(3)(a)If the Registrar or his nominee or board of nominees is satisfied that a person, whether he be a member of the society or not, has acquired any interest in the property of a person who is a party to a dispute, he may order that the person who has acquired the interest in the property may join as a party to the dispute; and any decision that may be passed on the reference by the Registrar or his nominee of board of nominees shall be binding on the party so joined, in the same manner as if he were an original party to the dispute.
(b) Where a dispute has been instituted, in the name of the wrong person or where all the defendants have been not included, the Registrar or his nominee or board of nominees may, at any stage of the hearing of the dispute if satisfied that the mistake was bona fide, order any other person to be substituted or added as a plaintiff or a defendant, upon such terms as he thinks just.Page 4 of 25
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(c) The Registrar, his nominee or board of nominees may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Registrar, his nominee or board of nominees, as the case may be, to be just, order that the name of any party improperly joined whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant oir whose presence before the Registrar, his nominee or board of nominees as the case may, may be necessary in order to enable the Registrar, his nominee or board of nominees effectually and completely to adjudicate upon and settle all the questions involved in the dispute, be added.
(d) Any person who is a party to the dispute and entitled to more than one relief in respect of the same cause of action may claim all or any of such reliefs; but if he omits to claim all such reliefs, he shall not forward claim for any relief so omitted, except with the leave of the Registrar, his nominee or board of nominees.
(4) Notwithstanding anything contained in sub-section (1), (2) and (3), the following disputes or class of disputes, if the plaintiff so desires, shall be decided summarily by the Registrar, or his nominee or board of nominees, in such manner as may be prescribed, namely:
(a) any dispute for recovery of debt upon promissory note, hundi, bill of exchange or bond, with or without interest, whether agreed upon under such instrument or under the bye-laws;
(b) any dispute for recovery of a fixed sum of money or in the nature of debt, with or without interest, arising on a written contract;
(c) any dispute for recovery of price of goods sold and delivered, where the rate, quality and quantity are admitted in writing.
(d) any dispute for recovery of dues payable by a member of a housing society towards contribution for construction of the house, or any dispute in respect of repayment of any loan, interest on loan, ground rent, local authority taxes, sinking fund, water charges, electrical charges,maintenance and upkeep charges or charges for other services rendered by the society and the interest on such arrears,payable under the written agreement or under the bye-laws.
(5)(a)The defendant shall not be entitled to defend the dispute unless he obtains leave from the Registrar, his nominee or, as the case may be, the board of nominees,in such manner as may be prescribed.
(b) The Registrar, his nominee or board of nominees may grant the leave under clause (a) on such conditions, as he thinks fit.Page 5 of 25
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(c) The Registrar, his nominee or board of nominees shall not refuse the leave to defend the dispute unless he is satisfied that the facts disclosed by the defendant do not indicate that he has substantial defence to raise or that the defence intended to be put by him is frivolous or vexatious.
(d) Whether the defendant fails to obtain such leave or fails to appear or defend the dispute in pursuance of such leave, the averments made in the plaint and documents produced therewith shall be deemed to have been admitted by the defendant :
Provided that the Registrar, his nominee or board of nominees in his discretion requires any fact so admitted to be proved otherwise than by such admission.
(e) Where the conditions on which leave to defend is granted are not complied with the defendant, the Registrar, his nominee or, as the case may be, board of nominees may pass an award against him, as if he has not been granted such leave.
(6) The Registrar, his nominee or, as the case may be, board of nominees shall under special circumstances set aside the award passed by him and if necessary stay or set- aside execution, and may grant leave to the defendant to appear and defend the disputes, if it seems reasonable so to do, and on such terms as he thinks fit."
12. Section 100 of the Act provides for attachment before award, which reads as under:
"100. Attachment before award:
(1) Where a dispute has been referred to the Registrar or his nominee or board of nominees under section 98 or under section 110, or where the Registrar or the person authorized under section 93 hears a person against whom charges are framed under that section, the Registrar or his nominee or board of nominees, or as the case may be, the person so authorized under section 93 if satisfied on inquiry or otherwise that a party to such dispute or against whom proceedings are pending under section 93 with intent to defeat,delay or obstruct the execution of any award or the carrying out of any order that may be made:-
(a) is about to dispose of whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the jurisdiction of the Registrar, may unless adequate security is furnished, direct conditional attachment of the said property and such attachment shall have the same effect as if made by a competent Civil Court.Page 6 of 25
HC-NIC Page 6 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT (2) Where a direction to attach property is used under sub-section (1) the Registrar, his nominee or board of nominees or the person authorized, under section 93 shall issue a notice calling upon the person whose property is so attached to furnish such security within such period as may be specified in the notice, and if the person fails to provide the security so demanded, the Registrar or his nominee or board of nominees or, as the case may be, the person authorized under section 93 may confirm the order and, after the decision in the dispute or the completion of the proceedings referred to in sub-section (1) may direct the disposal of the property so attached towards the claim if awarded.
(3) Attachment made under this section shall not affect the rights subsisting prior to the attachment of the property, of persons not parties to the proceedings in connection with which the attachment is made, or bar any person holding a decree prior to such attachment against the person whose property is so attached from applying for the sale of the property under attachment in execution of such decree."
13. Section 103 of the Act provides for procedure as to how,money is to be recovered on the basis of the order passed by the Registrar, Board of Nominee or the Tribunal as well as by the State Government, which reads as under:-
"103. Money how recovered :
Every order passed by the Registrar or a person authorized by him under section 93, or by the Registrar, his nominee or board of nominee under section 100 of 101, every order passed in appeal under section 102, every order passed by a liquidator under section 100, every order passed by the State Government in appeal against orders passed under section 110, and every order passed in revision under section 155, shall, if not carried out, -
(a) on a certificate signed by the Registrar or a Liquidator, be deemed to be a decree of a Civil Court, as defined in clause (2) of section 2 of the Code of Civil Procedure, 1908 and shall, be executed in the same manner as a decree of such Court, or
(b) be executed according to the provisions of the Land Revenue Code and the rules thereunder for the time being in force for the recovery of arrears of land revenue;
Provided that, any application for the recovery in such manner of any such sum shall be made to the Collector, and shall be accompanied by a certificate signed by the Registrar, or by any Assistance Registrar to whom the said power has been delegated by the Registrar, Such application shall be made within twelve years from the date fixed in the order and if no such date is fixed, from the date of the order."
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The above are the relevant provisions of the Act, which could be considered for deciding the above question.
14. Rules 41, 43 and 44 of the Rules, which are relevant for deciding the above question, are reproduced hereunder:
"41. Procedure of hearing and decision:
(1) The adjudicating authority shall record a brief note in English or in Gujarati language of the evidence of the parties and witnesses who attend and upon the evidence so recorded and upon consideration of any documentary evidence produced by either side, a decision shall be given in accordance with justice, equity and good conscience and it shall be reduced to writing.
Such a decision shall be given to the parties.
(2) If any of the parties duly summoned or informed to attend, fails to appear, the dispute may be dicision in accordance with the relevant provisions of Order 9 of the Code of Civil Procedure, 1908.
(3) Where the adjudicating authority is a board of nominees, consisting of the board of nominee of two nominees and if their opinions differ regarding the decision, the adjudicating authority shall return the case to the Registrar with its notes of dissent and thereupon the dispute may be decided by the Registrar himself or the case may be forwarded to a fresh board of three nominees for decision.
(4) The decision shall be communicated to the parties by:
(a) pronouncement of the award; or
(b) registered post to any party which may be absent on the date if
due notice of the decision is not given to such party,
(c) Ordinary post with UPC to any party which may be absent on the date if due notice of the date of decision is given to such party.
(5) After the decision of the case, if the adjudicating authority is a nominee or the board of nominee it shall return all the case papers to the Registrar."
"43. Summonses, notices and the fixing of dates,place, etc.:
(1) In proceedings for the settlement of disputes an adjudicating authority shall fix the date, hour and the place for hearing the dispute.
(2) The adjudicating authority may issue summonses or notices at least 15 days before the date fixed for hearing of the dispute requiring:
(i) the attendance of the parties concerned and of witness; and
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(ii) the production of all books and documents relating to the matter
in dispute.
(3)(i) Notices or summons issued by the adjudicating authority may
be served personally on the party or its agent or through the Mamlatdar,Mahalkari, Talati or any officer of the Panchayat, or any employees of the Co-operation Department or of a federal society or through the Chairman or Secretary of society or by registered post with acknowledgment due.
(ii) The serving officer shall, in all cases in which summons or notice has been served, endorse, or annex or cause to be endorsed or annexed on or to the original summons or notice send a return stating the time when, and the manner in which, the summons or notice was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery of tender of the summons or the notice.
(iii) The person issuing the summons or notice may examine the serving officer on oath or cause him to be so examined by the Mamlatdar or Mahalkari through whom it is served and make such further inquiry in the matter as he thinks fit; and shall either declare that the summons or notice has been duly served or order it to be served in such manner as he thinks fit.
(iv) If the summons or notice is issued by the adjudicating authority under section 99 shall, if sent for service to a Mamlatdar or a Mahalkari, be served by such officer.
(v) The mode of serving of summonses or notices under section 86 and 94 or to make an inspection under section 87 or by the auditor acting under section 84 by the liquidator appointed under section 108 and acting under section 108 shall be the same as provided in the forgoing of this sub-rule.
(vi) If the party or the witness evades service, of summons or notice or refuses to accept service, or whereabouts of the party or witness are not known, the summons or notice may be served by affixing a copy thereof at the last known residence of the party or witness and if such address is not known the summons or notice may be affixed at the office of the panchayat of a gram or nagar or municipal office of the town or city in which such party or witness is known to have last resided or by publication of the same in any local newspaper."
"44. Procedure for execution of awards :
(1) Every order or award passed by the adjudicating authority under section 100 or 101 shall after the expiry of the period for appeal under section 102, be forwarded by the Registrar to the society or to the party concerned with instruction that it should be executed forthwith according to the provisions of section 103.
(2) If the amount due under the award is not forthwith recovered or
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the order is not carried out, the award or as the case may be, the order shall be forwarded by the society or the party concerned to the Registrar with an application for execution along with all other information required by the Registrar for the issue of certificate under section 103. The application shall state whether he desires to execute the award or as the case may be order by the civil Court or through the Collector as provided under section 103 or through the Registrar as provided under section 159.
(3) Even order passed in appeal under section 102 shall also be executed in the manner prescribed under sub-rule (2).
(4) Recovery of execution when property is not sold. When recovery is made under section 103 in execution of any order referred to in the said section {or on the certificates issued under section 105 and 139} and property is not sold in such execution, the Registrar may order the expenses of such recovery to be paid by the party in default according to a scale laid down by him not exceeding in aggregate 10 per cant of the amount of the dues."
15. What emerges from the above provisions of the Act and the Rules could be summarized as under:-
(1) Though sub-section (2) of Section 97 provides that period of limitation in case of any dispute under Section 96 shall be regulated by the provisions of the Indian Limitation Act, 1908 as if the dispute were a suit and the Registrar a Civil Court, sub-section (3) gives discretion to the Registrar to admit a dispute after expiry of the period of limitation, if the applicant satisfies him that he has sufficient cause for not referring the dispute within such period and the dispute so admitted shall be a dispute which shall not be barred on the ground that period of limitation had expired.
(2) Section 99 of the Act inter alia provides for hearing the dispute by Registrar or Board of Nominees in the manner prescribed.
The issuance of summons and attendance of the witnesses including the parties are to be governed as far as possible in the same manner as provided in the case of a Civil Court by 'the Code'. The other procedure provided therein is to permit the legal practitioner or power of attorney to appear on behalf of the party, to join the party who is found to have acquired any interest in the property of a person who is a party to the dispute, for substitution of plaintiff or defendant, for striking out the name of any party or joining any party whose presence is necessary before the Registrar or Board of Nominees for effectually and completely adjudicating and settling all questions involved in the dispute. It also provides that a person who is a party to the dispute and entitled to more than one relief and omits to claim all the reliefs, the Registrar may refuse to forward his claim so omitted.
Sub-sections (4) and (5) thereof provides for procedure for Page 10 of 25 HC-NIC Page 10 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT summary suit for recovery of money alike provision of Order 37 of the Code.
(3) Section 100 of the Act provides for attachment before award and such attachment is stated to have the same effect as if made by the competent Civil Court.
(4) Section 103 of the Act provides for procedure for recovery of the money on the basis of the order passed by the Registrar, his nominee, Board of Nominees, the Tribunal, the Liquidator.
16. Rule 41 of the Rules prescribes the manner and method of deciding the Lavad suit. As per the said provision, the adjudicating authority is required to take decision on the basis of the evidence recorded and considering the documentary evidence produced by either of the party in accordance with justice, equity and good conscience. If any of the parties duly summoned fails to appear before the adjudicating authority, the dispute is required to be decided in accordance with the relevant provisions of Order IX of the Code of Civil Procedure, 1908.
16.1. Rule 43 of the Rules provides for service of summons and attendance of the parties.
16.2. Rule 44 lays down the procedure for execution of the award. As per the provisions of this Rule, it is left to the party in whose favour award/ order is made either to execute the same by the Civil Court or through the Collector or through the Registrar.
17. From the above, it clearly appears that the Act as well as the Rules have provided for a set of procedure to be followed for deciding the dispute by the Board of Nominee. At whatever stage of the proceedings of the dispute before the Registrar, his nominee or Board of Nominee, the provision of the Code or the procedure analogous to the provision of the Code is intended to be followed, it is so specifically provided in the Act or in the Rules. But, nowhere it is provided that the dispute before the Registrar, his nominee or Board of Nominees shall be either governed by the Code or shall be decided as per the provisions of the Code.
18. Unlike the Code of Civil procedure, making provision for procedure to be followed at different stages right from presentation of the plaint till the judgment and decree is passed in the suit, the Act and the Rules have laid down set of procedure to decide the dispute on the basis of the evidence available on record and in accordance with justice, equity and good conscience. There is no provision for rejection of suit. Dispute once admitted by the Registrar, his nominee, or Board of Nominees is to be adjudicated upon till taking of the final decision as per the procedure provided under the Act and the Rules.
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19. There is also no provision in the Code making the Code applicable to the proceedings of the dispute filed under the provisions of the Act. Therefore, since the Act and the Rules provide for set of procedure to be followed for deciding the dispute by the Registrar and Board of Nominees, the direct application of the provisions of the Code has to be ruled out except where any provision of the Code is specifically made applicable.
20. The decisions relied upon by learned advocate Mr.Majmudar do not lay down that the provisions of the Code are applicable to the proceedings of the dispute under the Act. In the case of Porbandar Commercial Co-op. Bank (supra), the question was whether to what extent, the partner, who signed the surety bond could bind the other parters and whether all partners of the firm could be sued by following the procedure of Order XXX of the Code. In that context, this Court has observed as under:
".... It may be noted that strict and rigorous provisions of C.P. Code do not apply to the trial of a dispute under Sec.96 of the Act. It has to be decided according to justice, euqity and fair play. If this was a fullfledged civil suit tried by a regular civil court Mr. Nanavati could have urged with emphasis that by merely suing partners under O.XXX R.1. through the name of the firm no personal decree can be passed against the concerned partners unless he was also joined in his personal capacity as a defendant. It is also true that in a suit governed by O.XXX Code of Civil Procedure each partner aping individually can put in a separate written statement but each written statement is the written statement of the firm. It is only when a person is sued personally along with the firm that he may put in a personal defence. Still however the fact cannot be lost sign of that the present proceedings are to be decided on principle of natural justice, equity and good conscience and not strictly according to the rigorous procedural provisions of the Code of Civil Procedure...."
The Court in the said case has not held that the Code of Civil Procedure applies to the dispute to be decided under the Act.
In the case of Ruti Rushi Modi (supra), the Court was not called upon to decide as to whether the provisions of Order VII Rule 11 of the Code could be applied to the proceedings of the dispute under the Act. Therefore, both the decisions would have no application for deciding the above question.
21. In view of the above, I am of the view that the provisions of Order VII Rule 11 of the Code has no application to the proceedings of the dispute under the Act. Therefore, application under Order VII Rule 11 of the Code at Exh.16 preferred by the petitioner is not maintainable.
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7. Hon'ble Division Bench of this Court had an occasion to examine the provisions of Sections 96 to 102 of the Act when challenge was made to the vires of the said provisions, in the case of Rasiklal Patel and others Vs. Kailasgauri Ramanlal Mehta and others reported in 1971(12) GLR 355. In the judgment of said case, Hon'ble Division Bench has held and observed in para 13 to 19 as under:-
13. Now when any of the parties to the dispute refers it to the Registrar for adjudication, the first question that arises before the Registrar is whether it is a dispute covered by Section 96 Sub-section (1) for it is only if it is such a dispute that it can be adjudicated according to the special machinery. Section 96 Sub-
section (2) empowers the Registrar to decide this question and provides that his decision shall be final. This finality is, however, only for the purpose of ordinary appeal or revision : it does not exclude the special power legislatively conferred on the State Government under Section 155. Vide the decision of the Supreme Court in Everest Apartments Co-operative Housing Society Ltd. v. State of Maharashtra. If the Registrar is satisfied that any matter referred to him is a dispute within the meaning of Section 96 Sub-section (1), he is required to follow either of the two courses. He may either decide the dispute himself or refer it for disposal to a nominee or a board of nominees appointed by him. Vide Section 98 Sub-section (1). The proviso to the Sub-section gives effect to the principle that no one who is interested in a dispute shall be appointed to decide it. Section 98 Sub-section (2) gives power to the Registrar to withdraw a dispute pending before a nominee or board of nominees and either to decide it himself or to refer it again to another nominee or board of nominees but for exercise of this power of withdrawal, he is required to give reasons in writing and his decision is revisable under Section 155.
14. Section 98 Sub-section (3) provides that the Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated questions of law or fact, until the question has been tried by a regular suit instituted by one of the parties or by the society. The power under this sub-section is obviously intended to be exercised when the dispute involves a complicated question of law or fact which is of such a nature that in the opinion of the Registrar it would be desirable to have it decided by a Civil Court rather than by himself or by a nominee. The words "if he thinks fit" no doubt vest a discretion in the Registrar but this discretion is necessary in the very scheme of things. The Lagislature did not intend that in every case where there is a complicated question of law or fact the parties should be allowed to go to a Court of Page 13 of 25 HC-NIC Page 13 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT law. That would frustrate the whole object of providing the special machinery. But at the same time there might be certain types of questions which having regard to their nature, importance or complexity, are such that in the interests of justice it would be better to have them tried by a Court of law rather than by the Registrar or his nominee. It was to provide for such types of questions that the legislature enacted Section 98 Sub-section (3). Now infinitely various are the kinds of questions which may arise for decision and no two questions would be alike and it was, therefore, impossible for the Legislature to lay down any clear-cut principle or formula defining with sufficient clearness and precision, what types of questions shall be allowed to be determined by a Court of law. In these circumstances the only thing the Legislature could do was to confer power on the Registrar to suspend proceedings leaving the parties to go to a Court of law in fit cases. It was in this sense that the Legislature used the words "if he thinks fit." These words do not confer an unguided and unfettered discretion on the Registrar. The Registrar cannot act arbitrarily or capriciously under the guise of these words. The Registrar will have to apply his mind whether the, question at issue between the parties, which of course must necessarily be a complicated question of law or fact, is of such a nature that the interests of justice require that it should be allowed to be agitated before a Court of law rather than before the special forum provided under the Act. The discretion which has to be exercised by the Registrar is to be guided by this consideration, and if the Registrar errs, there is a machinery to set him right. The State Government can in exercise of its power under Section 155 revise the order of the Registrar.
15. While dealing with Section 98 Sub-section (3) a difficulty was pointed out in the course of the arguments that the power of suspending the proceedings until the question at issue is decided in a civil suit would be illusory, since it can always by set at naught by the claimant before the Registrar refusing to file a suit within the prescribed time. To take an example, suppose the opponent applies to the Registrar for suspending the proceedings and an order is made by the Registrar under Section 98 Sub-section (3). A suit would then have to be filed within a period of two months from the date of the order. But the suit can only be filed by the claimant The opponent cannot file a suit for a negative declaration. Now the claimant may refuse to file the suit and in that event, on the expiration of the period of two months, the proceedings would be resumed before the Registrar and the order made by the Registrar under Section 98 Sub-section (3) at the instance of the opponent would be frustrated. This difficulty though prime facie quite impressive, is really without substance. It is only where the question arises between a society and a claimant or between different claimants that the power can be exercised under Section 98 Sub-section (3). If the power is exercised at the instance of the claimant, there is no difficulty : he can always avail of the opportunity by filing a suit as a claimant. If on the other hand the power is exercised at the instance of the Society, the Society may file a Page 14 of 25 HC-NIC Page 14 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT suit if it is possible to do so having regard to the nature of the dispute. If it is not possible, the Society would have to depend on the claimant filing a suit but the speial procedure having been designed for the benefit of the Society, the Society can have no legitimate grievance if the claimant does not file a suit and the special procedure has to be followed.
16. The procedure for hearing the dispute by the Registrar or his nominee is laid down in Section 99 Sub-section (1). That Sub- section provides that the Registrar, or his nominee shall hear the dispute in the manner prescribed. Rule 41 prescribes the manner by saying that the adjudicating authority shall record a brief note in English or in Gujarati language of the evidence of the parties and witnesses who attend and upon the evidence so recorded and upon consideration of any documentary evidence produced by either side, a decision shall be given in accordance with justice, equity and good conscience and it shall be reduced to writing. One of the arguments before us was that this rule enjoins the adjudicating authority to decide according to "justice, equity and good conscience" and not according to law and, therefore, the adjudicating authority would be entitled to ignore the law if it thought necessary to do so in order to comply with what it was to be the requirement of "justice, equity and good conscience". This would introduce a most uncertain element in the decision of disputes, since "justice, equity and good conscience" is a nebulous concept and like equity in England, it is bound to vary with the foot of the nominee. We do not think this apprehension is well-founded. It is based on a to literal interpretation of Rule 41 without taking into account the source of the power under which the rule is made. Section 99 Sub-section (1) under which the rule is made merely authorises the rule-making authority to prescribe the manner of hearing the dispute. It does not empower the making of a rule prescribing what law shall govern the decision of the dispute. The dispute must of course be decided according to the law of the land but what shall be the procedure of hearing of the dispute is to be prescribed by rules. Rule 41 must, therefore, be interpreted as a rule prescribing the manner of hearing of the dispute and if it is so interpreted, it is clear that when it says that a decision shall be given in accordance with justice, equity and good conscience, it does not mean that the dispute shall be decided otherwise than in accordance with the law of the land or that the law of the land shall be ignored in adjudicating upon the rights and liabilities of the parties but what it means is that the procedure of hearing of the dispute shall be in accordance with justice, equity and good conscience. If the other view contended for on behalf of the petitioners were accepted, Rule 41 would be ultra vires Section 99 Sub-section (1) and that is a construction which we should be most disinclined to accept. No element of uncertainty is, therefore, introduced in the decision of disputes by the provision made in Rule 41. Section 99 Sub-section (2) also deals with one more aspect of the procedure of hearing of the dispute, namely, legal representation. It says that except where the dispute involves complicated questions of law or fact, no legal practitioner shall be permitted to appear on behalf of Page 15 of 25 HC-NIC Page 15 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT any party at the hearing of the dispute. It completely bars the appearance of legal practitioner unless the dispute involves a complicated question of law or fact in which case a legal practitioner may be permitted to appear.
17. It is apparent from this analysis of the impugned provisions that the special procedure provided in these sections is much less advantageous than the ordinary procedure of adjuication by Civil Courts according to the Code of Civil Procedure. In the first place, under the special procedure, the dispute would be decided by the Registrar or his nominee who would not ordinarily be an experienced judicial officer and may not even be a competent lawyer. Secondly, there would be no right of appeal to a Court of law : the right of appeal would only be to the Co-operative Tribunal. Thirdly, there would be no right of second appeal even on a question of law. Fourthly, the elaborate safeguards provided by the procedural provisions of the Code of Civil Procedure would be absent. Fifthly, instead of full record of the evidence, there would be only brief notes of evidence. And lastly, legal representation would not be available to the parties unless the dispute involves complicated question of law or fact. The parties to whom the special procedure is made applicable may legitimately inquire: what is this discrimination being made against us and why should our disputes with the Society be adjudicated according to a special procedure which has not the same advantages as the ordinary procedure applicable to other litigants? If no rational justification can be given in answer to this question, the special procedure would be clearly violative of the equal protection clause contained in Article 14.
18. It is now well-settled that the principle underlying the guarantee in Article 14 is not that the same rules of law must be applicable to all persons or the same remedies should be available to them, irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike: there should be no discrimination between one person and another if as regards the subject matter of the legislation, their position is substantially the same. The Legislature has, however, power of making special laws to attain particular ends and for that purpose it may select or classify persons and things upon which such laws are to operate. But the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of Article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is not a mere arbitrary selection. The classification to be valid and permissible must satisfy a double test: it must be founded on an intelligible differentia which distinguishes those who are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the statute. Where, therefore, an enactment is challenged on the ground of discrimination, we must apply this double test: if the test is satisfied, the classification cannot be held to be violative of Article 14.
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19. Now the object of the impugned sections clearly is to provide a special machinery for adjudication of disputes touching the constitution, management or business of a society with a view to speedy determination of such disputes without any unnecessary waste of time, energy and money which would necessarily be involved under the ordinary procedure of a civil suit. A co- operative Society is a form of organization in which persons voluntarily come together for promotion of their economic interests in accordance with co-operative principles. "Co- operation," as pointed out by C.R. Fay, is "an association for the purpose of joint trading among the weak and conducted always in an unselfish spirit on such terms that all who are prepared to assume the duties of membership may share its rewards in proportion to the degree in which they make use of their association". It is essentially an association of persons of limited means and, as indicated in the preamble to the Bombay Co- operative Societies Act, 1925, its object is inter alia "promotion of thrift, self-help and mutual aid among agriculturists and other persons with common economic needs." It is based on the principle of equality and avoids selfish exclusiveness by recognizing that its membership should be open to all who want to join it. The voting power in a co-operative form of organisation is not in proportion to the shareholding as in the case of a joint-stock Company but each member is given one vote so as to ensure equal participation in management by all, irrespective of their wealth. Co-operation also seeks to eliminate the middle man by bringing producers and consumers closer to each other through the process of integration and aims at preventing the exploitation of the weaker sections of the community by the stronger ones. It stands for distributive justice to all who contribute to the earning of wealth including the consumers. It is a form of origami satior which avoids the evils of capitalism and yet assures the human dignity of the individual. That is why it has been accorded a preferred place in our socio- economic set up. The Legislature enacting, a law in regard to it might, therefore, well consider it desirable that a special machinery should be provided for adjudication of disputes touching the constitution, management or business of a co- operative Society which would be much simpler and speedier and much less expensive than the ordinary remedy of adjudication by a Civil Court. It was with that end in view that the Legislature enacted the impugned sections. The object of providing the special machinery by the impugned sections is to bring about speedy settlement of disputes, to lessen cost of litigation and to secure dispensation of justice unhampered by technical rules of procedure so that co-operative Societies do not get involved in long drawn out protracted litigation which would consume their time, energy and resources. This object having regard to the nature and character of the co-operative form of organisation, the principles on which it is founded and the objects it is intended to serve, would fully justify application of the special procedure to resolution of disputes touching the constitution, management or business of a society, Now, as already discussed above, parties having disputes touching the Page 17 of 25 HC-NIC Page 17 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT constitution, management or business of a society are divisible into two distinct classes. Members, officers and servants from one class. They possess common properties and characteristics in that they are all directly and intimately connected with the constitution or management of the society. The application of the special procedure to them does not, therefore, involve any discrimination, violative of the equality clause. The provision of special machinery for adjudication of their disputes by a domestic forum is justified having regard to the above stated object of the impugned provisions.
8. Learned advocate Mr. Desai, however relied on the judgment of Hon'ble Supreme Court in the case of Ragho Singh Vs. Mohan Singh reported in 2001(9) SCC 717, especially para 6, which reads as under:-
6. We have heard learned Counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in settling aside the Judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs."
9. In the case of Ragho Singh (supra) the Board of Revenue before whom the question of limitation was agitated was of the view that though an application for condonation of delay was not filed before the Additional Collector, delay shall be deemed to have been condoned which was found to be patently erroneous. Such question is not posed in the present proceeding. The question posed is whether the suit could be rejected by raising preliminary issue of limitation and non-disclosure of the cause of action. Learned advocate Mr. Desai has failed to point out as to under which provision, the application Mark 48 was filed by the petitioners seeking rejection of the suit on above-said two grounds. The Court finds that the Page 18 of 25 HC-NIC Page 18 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT application preferred by the petitioners is totally misconceived as there is no concept for rejection of the suit. The suit could be dismissed on proving the plea of limitation or for no cause for dispute as contemplated under Section 96 of the Act after following the procedure as provided under Section 99 of the Act read with Rules 41 and 43 of the Rules. It appears that the petitioners when made application at Mark 48, appeared to be well advised that as per decision of this Court in the case of Lokhandwala Irfanbhai Hanifbhai (supra), Order-VII Rule 11 of the Code has no application for rejection of the plaint of the Lavad Suit. And, therefore, taking indirect route, they applied for rejection of the suit by framing preliminary issue instead of rejection of plaint.
10. All the provisions of the Code do not apply to the lavad suit filed before Board of Nominee for dispute covered under Section 96 of the Act. Wherever the legislature has intended to apply any provision of the Code for the proceedings of the Lavad suit, it is specifically so provided in the provisions of the Act and except where it is so specifically provided, the provisions of the Code shall not apply to the proceeding of the Lavad Suit in general. In any case, even in the Code, there is no provision for rejection of the suit on the ground of either limitation or non-disclosure of the cause of action. What is provided in the Code is for framing of issues under Order-XIV either of fact or law. Sub-Rule (2) of Order XIV of the Code provides that where issues of both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force and for that purpose, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue. Though the legislature has not made such provision Page 19 of 25 HC-NIC Page 19 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT applicable for the lavad suit filed before the Board of Nominee, however even if on issue of limitation or on the issue of bar to the suit, created by any law, if the Board of Nominee wants to decide the suit, it has to try such issue with other issues which may require adducing of evidence by the parties. Thus, there is no provision for outright rejection of the suit on the issue of limitation or non-disclosure of cause of action. In any case, since the provision of Order-XIV has no application to the suit filed before the Board of Nominee under the provisions of the Act, even such opportunity of raising the issue of limitation or issue of bar of suit created by any law is not available so as to decide such issues first in the lavad suit filed under the Act.
11. Learned advocate Mr. Desai, however placed reliance in the case of Noharlal Verma Vs. District Cooperative Central Bank Limited, Jagdalpur reported in (2008)14 SCC 445, so as to urge that Hon'ble Supreme Court has held that limitation goes to he root of the matter and if appeal or application is barred by limitation, a Court or an adjudicating authority has no jurisdiction, power or authority to entertain the suit, appeal or application and to decide it on merits. In the said case, Hon'ble Supreme Court has in the context of the application made by the employee to the Joint Registrar under Section 55 of the M.P. Co-operative Societies Act, 1960 held and observed in para 20 to 35 as under:-
20. Now, Section 55 of the Act empowers the Registrar to determine conditions of employment in societies. The said section, as it then stood, read as under;
55. Registrar's power to determine conditions of employment in societies.- (1) The Registrar may, from time to time, frame rules governing the terms and conditions of employment in a society or class of societies and the society or class of societies to which such terms and conditions of employment are applicable shall comply with the order that may be issued by the Registrar in this behalf.
Provided that in the case of co-operative credit structure, the Page 20 of 25 HC-NIC Page 20 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT Registrar may frame rules governing the terms and conditions of employment on the basis of the guidelines specified by the National Bank.
(2) Where a dispute, including a dispute regarding terms of employment working conditions and disciplinary action taken by a society, arises between a society and its employees, the Registrar or any officer appointed by him not below the rank of Assistant Registrar shall decide the dispute and his decision shall be binding on the society and its employees :
Provided that the Registrar or the officer referred to above shall not entertain the dispute unless presented to him within thirty days from the date of order sought to be impugned:
Provided further that in computing the period of limitation under the foregoing proviso, the time requisite for obtaining copy of the order shall be excluded.
(Emphasis supplied) Plain reading of the aforesaid provision makes it more than clear that when a dispute regarding terms of employment, working conditions and disciplinary action taken by a society and its employees arises, the officer specified therein will decide such dispute which shall be binding on the society and its employees.
21. The first proviso to sub-section (2) of the said section prohibits the Registrar from entertaining the dispute unless such dispute is presented to him within thirty days from the date of the order impugned. The second proviso declares that in computing the period of limitation, the time requisite for obtaining copy of the order would be excluded. It is thus clear that if an employee, aggrieved by any decision taken by the society intends to approach the Registrar, he must invoke provisions of Section 55 of the Act by filing an application within thirty days from the date of such order or action.
22. In the instant case, admittedly, the order of removal was passed by the Bank against the appellant on April 29, 1982. Even the first petition under Section 55 of the Act was filed by the appellant/applicant on June 30, 1982, i.e., after two months which was time-barred. The High Court considered the first petition filed by the appellant herein before the Registrar, Raipur, but even that petition was barred by time. The High Court was, therefore, right in dismissing the writ petition holding that the application filed by the applicant was not within the period of limitation prescribed by Section 55 of the Act.
23. Learned counsel for the appellant, however, submitted that the petition filed by the applicant ought to have been treated within the period of limitation. In support of such contention, he relied on two aspects.
24. Firstly, the provisions of appeals and revisions under the Act.Page 21 of 25
HC-NIC Page 21 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT Chapter X provides for filing of appeals and revisions. Referring to rule making power of the State (Section 95), the counsel submitted that the State Government has power to prescribe procedure in presenting and disposal of appeals [Clause (gg) of sub-section (2) of Section 95]. In exercise of the said power, the State Government has framed rules known as the Madhya Pradesh Co-operative Societies Rules, 1962 (hereinafter referred to as 'the Rules').
25. Chapter IX as then stood provided procedure in "Appeals and Revisions". Rule 59 of the Rules laid down procedure in filing an appeal to the State Government or to the Registrar. Sub-rules (6), (7) and (8) to which our attention has been invited by the learned counsel read thus;
59(6) If the appellate authority finds that the appeal presented does not conform to any of the said provisions, it shall make a notice on the appeal to that effect and may call upon the appellant or his agent to remedy the defects within a period of seven days of the receipt of the notice to do so or in case the appeal has not been presented within the prescribed time limit to show cause within the said period of seven days why it should not be dismissed as time-barred by the appellate authority.
(7) If the defect is remedied or the cause shown by the appellant or his agent satisfies the appellate authority, the appellate authority may proceed to consider the appeal.
(8) If the appellant or his agent fails to remedy the defects or to show cause to the satisfaction of the appellate authority within the said period, the appellate authority may, if the appeal is not presented within the time-limit, dismiss the appeal as time- barred. In cases where it is considered necessary to give a hearing, the appellate authority may fix a date for hearing, of which due notice shall be given to the appellant or his agent.
26. We are of the view that the aforesaid provisions do not apply to the case on hand. Apart from the fact that Rule 59 merely lays down procedure of appeals instituted within the period of limitation and provides for removal of defects, neither the provisions relating to appeals nor of revisions apply to the case on hand.
27. In our view, the scheme of the Act is clear. Chapter X of the parent Act which deals with appeals and revisions applies to those cases where orders have been passed by the authorities and officers under the Act and a person is aggrieved by such orders. In the present case, the action is taken not by an authority or officer under the Act but by the respondent-Bank. The appellant, therefore, rightly applied to the Registrar under Section 55 of the Act complaining against such action. The appellant could not have preferred an appeal under the Act either to the Registrar or to the State Tribunal. The provisions of Chapter X of the Act relating to appeals and procedure laid Page 22 of 25 HC-NIC Page 22 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT down in Chapter IX of the Rules, therefore, had no application. The first ground in support of the application that it should be treated as within the period of limitation has thus no force.
28. Secondly, the appellant contended that the learned counsel appearing for the Bank conceded that the application filed by the appellant/applicant was within time and hence, the Registrar took up for consideration the said application and decided on merits. Thereafter, it was not open to the Bank to contend that the application was barred by limitation. The order of the High Court, therefore, deserves to be set aside.
29. It was also submitted that had it been contended before the Registrar that the application was not within the period of limitation prescribed by law, the appellant could have satisfied the authority or would have taken other steps, but he was deprived by the concession on behalf of the Bank. It has caused serious prejudice to the appellant and the Bank cannot be allowed to 'blow hot and cold' by taking inconsistent pleas and by raising 'technical' defence of limitation.
30. The learned counsel for the respondent-Bank rightly submitted that the plea raised by the appellant has no force. It was submitted that there was no concession by the Bank. Relying on Zimni, the counsel submitted that on July 06, 1993, i.e., the day on which the concession was said to have been made, the Presiding Officer was not present as he was on a tour. No proceeding took place on that day. It was, therefore, factually incorrect to state that a concession was made on behalf of the Bank and it did not object that the application was barred by time.
31. But even otherwise, according to the counsel, if the application was not within the period of limitation, the so-called concession would neither bind the Bank nor invest jurisdiction or power in the authority to entertain such application which was barred by limitation. In other words, according to the counsel, the concession was against the provision of law, which would not bind the Bank.
32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation,a Court or an Adjudicating Authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.
33. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under;
"3. Bar of limitation. - (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
(Emphasis supplied)
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Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal is preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in absence of such plea by the defendant, respondent or opponent, the Court or Authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation.
34. As stated earlier, Section 55 allows an aggrieved party to approach the Registrar within a period of thirty days. There is no provision analogous to Section 5 of the Limitation Act, 1963 allowing the Registrar to condone delay if "sufficient cause" is shown. In view of this fact, in our opinion, the contention of the learned counsel for the Bank is well founded that the application submitted by the appellant was barred by time.
35. To us, the High Court was right in observing that the Tribunal was in error in allowing the appeal and dismissing the claim of the appellant on the ground of res judicata . The High Court, therefore, considered the said question independently and held that the Bank was right in submitting that the appellant had not approached the Registrar within the period prescribed by law and his application was liable to be dismissed.
12. The Court is however of the view that the said decision shall have no application in the scheme of the Act whereunder the Lavad Suit is filed. Section 97 of the Act provides for limitation for filing the suit for the dispute covered under Section 96 of the Act. Sub-section (3) thereof provides that, "notwithstanding anything contained in sub- section (1) and (2), the Registrar may admit a dispute after the expiry of the period of limitation if the applicant satisfies him that he had sufficient cause for not referring the dispute within such period, and the dispute so admitted shall be a dispute which shall not be barred on the ground that the period of limitation had expired." Such provision would suggest that an opportunity is available to the plaintiff to satisfy the Registrar with sufficient cause for delay in filing the suit. Such opportunity may be availed by the plaintiff by adducing evidence before the Board of Nominee. Even apart from such provision, scheme of Sections 98 and 99, which provide for settlement of dispute and procedure for settlement of dispute read with Rules 41 to 44 of the Page 24 of 25 HC-NIC Page 24 of 25 Created On Fri Sep 11 01:40:01 IST 2015 C/SCA/14419/2015 JUDGMENT Rules, do not provide for rejection of the suit and procedure for deciding the suit is differently provided. Suit once filed is to be decided by the Board of Nominee by recording evidence of the parties and their witnesses and on consideration of such evidence, decision is to be given in accordance with justice, equity and good conscience as held by this Court in the case of Lokhandwala Irfanbhai Hanifbhai (supra).
13. For the reasons stated above, the Court finds that the Board of Nominee has not committed any error in rejecting the application at Mark-48 preferred by the petitioners. The petition is therefore, rejected.
Sd/-
(C.L.SONI, J.) Omkar Page 25 of 25 HC-NIC Page 25 of 25 Created On Fri Sep 11 01:40:01 IST 2015