Special Recovery Officer vs Shakti Pottery Works - Partnership Firm on 14 July, 2022

[Cites 33, Cited by 0]

Gujarat High Court

Special Recovery Officer vs Shakti Pottery Works - Partnership Firm on 14 July, 2022

Bench: Vaibhavi D. Nanavati

     C/SCA/7678/2014                            ORDER DATED: 14/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7678 of 2014

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                  SPECIAL RECOVERY OFFICER
                            Versus
      SHAKTI POTTERY WORKS - PARTNERSHIP FIRM & 2 other(s)
==========================================================
Appearance:
MR VISHWAS K SHAH(5364) for the Petitioner(s) No. 1
KSHITIJ M AMIN(7572) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
SERVED BY AFFIX. (R) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 14/07/2022

                             ORAL ORDER

1. The writ-applicant by way of present writ-application under Article 226 of the Constitution of India has prayed for the following reliefs :-

"(a) Be pleased quash and set aside impugned order dated 27th March 2014 passed by the Joint Secretary Appeals, Gandhinagar in Revision Application no. 46 of 2014.

(b) Pending Admission, Hearing and Final disposal of this Petition, be pleased to stay the operation, effect and implementation of the impugned order dated 27th March 2014 passed by the Joint Secretary Appeals, Gandhinagar Page 1 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 in Revision Application no.46 of 2014.

       (c)     Costs of this Petition be awarded.


       (d)     Such further and other relief, order or direction

which may be just, fit, proper and equitable in the facts and circumstances of the Petition."

2. The writ-applicant is a registered Multi State Cooperative Bank under the Multi State Cooperative Societies Act, 2002.

The respondents No.1 and 2 had obtained loan from erstwhile Surendranagar Mercantile Cooperative Bank Ltd., which later merged under the guidelines of the Reserve Bank of India with the writ-applicant Bank on 27.1.2010 by virtue of the order passed by the Registrar of Cooperative Societies, Gandhinagar with due approval and assent accorded by the Central Registrar of Multi State Cooperative Societies, New Delhi and Reserve Bank of India.

3. Briefly stated the Secured Cash Credit facility agreement alongwith Hypothecation of movable properties with the erstwhile Surendranagar Mercantile Cooperative Bank Ltd is of Page 2 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 dated 28.1.1998. The certificate under Section 103 came to be issued on 2.9.2004. Subsequently a valid merger process was pursued and done in accordance with and by observing due process of law, pendente lite the execution proceedings after obtaining certificate of recovery under Section 103 of the Act.

4. The writ-applicant issued a recovery notice against the respondent on 21.1.2013. Attachment notice came to be issued on 22.4.2013. Panchnama of the said attachment of property is dated 1.5.2013. Public Auction is dated 14.6.2013. Auction notice informing the respondent debtor is dated 17.6.2013.

Further auction notice were issued on 20.7.2013, 4.9.2013, 15.2.2014 and 16.2.2014. The panchnama for attachment of the property of applicant No.2 before the Joint Secretary (Appeals) Gandhinagar is dated 23.9.2013. The respondent made an application before the writ-applicant dated 22.3.2014.

5. The respondents No.1 and 2 preferred Revision Application No.46 of 2014 in March, 2014 before the Joint Secretary (Appeals), Gandhiangar alongwith injunction Page 3 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 application which came to be allowed in favour of the respondents No.1 and 2 wherein it was held that the writ-

applicant cannot recover the loan amount which was disbursed to the respondents No.1 and 2 invoking the provisions of the Gujarat Cooperative Societies Act. The impugned order dated 27.3.2014 reads thus :-

"Careful consideration of Revision Application of the Applicant, Written Reply produced by the Respondent - Bank, Oral Arguments and Citations produced by the Applicant of this case was carried out.

The Applicant has received credit from - The Mercantile Co.-

op. Bank, Surendranagar and this Bank was registered under The Gujarat Co-operative Act-1961. The Mercantile Co-op.

Bank, Surendranagar which has been registered under the Co-

operative Act of the State have been taken-over by Adarsh Co-

op. Bank, which is registered under The Central Co-op. Act-

2002. In this reference, the issue of Jurisdiction has been raised on relying upon the Order dtd. 26/09/2012 passed by the Division Bench of the Hon'ble Gujarat High Court in L.P.A. no. 383/2010 and it has been represented that the Respondent Bank does not have right for recovery from us (the Applicant) Page 4 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 u/s. 159 of the Co-Operative Act.

In this context, the Judgment dtd. 26/09/2012 of the Hon'ble Gujarat High Court which is regarding Unnati Co-op. Bank -

which was registered under the Co-operative Act of the State Govt. and against it, there was Cosmos Co-op. Bank which was registered under the Central Co-op. Act.. The procedure of recovery u/s. 159 of the Co-Operative Act of the State was carried out by this Bank (Cosmos Bank), which was held to be illegal.

Looking to above facts, the representation of the Applicant gets the favor. The Judgment passed by Division Bench of the Hon'ble Gujarat High Court have been pronounced after going through the relevant sections of the Co-operative Act of the State as well as of Central Co-operative Act and Constitution Act (97th Amendment) - 2011 in detail which is applicable in this case. Looking to its details, the procedure carried out by the Respondent - Bank is held to be illegal and the Order is passed as follows.

ORDER Revision Application No.46/14 is allowed and the action taken by the respondent Bank is set aside."

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C/SCA/7678/2014 ORDER DATED: 14/07/2022

6. Being aggrieved by the impugned order dated 27.3.2014 passed by the Joint Secretary Appeals, Gandhinagar in Revision Application No.46 of 2014 the writ-applicant is constrained to approach this Court by filing the present writ-application as stated above.

Submissions on behalf of the writ-applicant :-

7. Mr. Vishwas K. Shah, the learned advocate appearing for the writ-applicant submitted that the Surendranagar Mercantile Cooperative Bank Ltd., was re-registered by virtue of amalgamation and merger process on 21.7.2010 by the Registrar, Cooperative Societies, Gandhiangar. Hence, in law, Surendranagar Mercantile Cooperative Bank Ltd., is not in existence but the debts of Surendranagar Mercantile Cooperative Bank Ltd., are required to be recovered which are vested by virtue of merger order with the writ-applicant.

7.1 The merger and amalgamation was taken up by the writ-

applicant which is a Multi State Cooperative Bank. However, the writ-applicant Bank seeks to undertake the recovery Page 6 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 proceedings under the Gujarat Cooperative Societies Act, 1961.

Relying upon the judgment in the case of Chinmay Premalkumar Gandhi and Ors., vs. Adarsh Multi State Cooperativwe Bank Ltd., reported in 2013 SCC OnLine Guj.7162, wherein the Court dismissed the writ-application by permitting the Bank to continue the proceedings before the Board of Nominee as per Sub-section (4) of Section 17 of the Multi State Cooperative Bank Ltd.

7.2 Mr. Shah, the learned advocate further submitted that it was an amendment in the terms of merger after the order came to be passed by the Secretary (Appeals) on 27.3.2014 and 5.7.2014, more particularly Clause 7(1) which reads thus :-

"7(1) The suits for recovery of dues of the former Surendranagar Mercantile Cooperative Bank Ltd, Surendranagar and outstanding balances of the decree or order passed therein by Adarsh Coop. Bank Ltd. under the provision of the Gujarat Cop. Societies Act as applicable or under the provision of other Acts, as the case may be. Adarsh Cop. Bank Ltd. being a multi-state, there will not be any adverse effect in the said proceedings. The Adarsh Coop. Bank Ltd. Can invoke the provisions in accordance with Section-159 Page 7 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 of The Gujarat Cooperative Act. and all such powers as are applicable to all such local Cooperative banks may be acquired or exercised in the name and on behalf of the Registrar, State of Gujarat. Service of the said decree shall be considered as well as served by the Court. The decree obtained or pending against the said debtors will not have any adverse effect on the recovery process carried out by Adarsh Coop. Bank."

Relying on the aforesaid clause Mr. Shah, the learned advocate submitted that in view of the aforesaid clause which was included in the agreement of merger the writ-applicant bank is entitled to undertake the recovery under the State Law i.e. Gujarat State Cooperative Societies Act.

Submissions on behalf of the respondents No.1 and 2 :-

8. Per contra, Mr. Kshitij M. Amin, the learned advocate appearing for the respondents No.1 and 2 vehemently opposed the aforesaid submissions advanced by Mr. Shah, the learned advocate appearing for the writ-applicant.

8.1 Mr. Amin, the learned advocate submitted that the Page 8 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 aforesaid issue is no longer res integra in view of the ratio as laid down in the Letters Patent Appeal No.383 of 2010 dated 26.9.2012, wherein it is held that if a cooperative bank registered under the Gujarat Cooperative Societies Act is merged with the cooperative bank registered under the Multi State Cooperative Societies Act, the later bank has no authority to recover the dues of the earlier bank.

8.2 Mr. Amin, the learned advocate further relied on the Amendment of 2013 in Section 17(1) of the Gujarat Cooperative Societies Act which permits amalgamation of a society under the Gujarat Cooperative Societies Act with a Multi State Cooperative Society.

8.3 Mr. Amin, the learned advocate submitted that the said amendment is prospective and it cannot be considered retrospective. The amendment is brought up in the year 2013 and, therefore, after 2013 the Registrar has power to sanction amalgamation of a society under the Gujarat Act with a Multi State Society.

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C/SCA/7678/2014 ORDER DATED: 14/07/2022 8.4 Mr. Amin, the learned advocate further submitted that in the present case the merger is sanctioned on 27.10.2010 i.e. prior to the amendment in the Act and, therefore, 2013 amendment cannot validate an Act of 2010 and at that point of time there was no such power.

8.5 The judgment of Letters Patent Appeal No.383 of 2010 would apply in the facts and circumstances of the present case and the Dy. Registrar rightly held that the writ-applicant has no right to recover the dues of the Cooperative Bank under the Gujarat Act by relying on the LPA judgment.

8.6 Mr. Amin, the learned advocate submitted that the reliance placed by the writ-applicant on the judgment in the Special Civil Application No.7659 of 2013 is not applicable to the facts of the present case in view of the fact that the judgment is passed after Amendment 2013 and, therefore, the same would not be applicable in the facts and circumstances of the present case.

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C/SCA/7678/2014 ORDER DATED: 14/07/2022 8.7 Mr. Amin, the learned advocate submitted that in view of the above, the writ-applicant Bank has no authority to recover the dues of the Surendranagar Mercantile Cooperative Bank Ltd., under the Gujarat Cooperative Societies Act and, therefore, the writ-application be dismissed in limine.

Analysis :-

9. Having heard the learned advocate appearing for the respective parties, in view of the undisputed facts as referred above it is apposite to refer to the judgment dated 26.9.2012 of the of the Hon'ble Division Bench in the Letters Patent Appeal No.383 of 2010, which reads thus :-

"We find considerable force in the submission of Mr.Vyas that unless the requisites under Section 17(1) of the Act of 1961 are complied with, resort to Section 17(4) of the Act of 1961 would not be permissible. The words as they appear in Section 17(4) of the Act of 1961 'right to continue and commence' have to be given the same effect for interpreting the provision. Even by virtue of Section 20 of the Act of 1961, the legal existence of a State Cooperative Society would stand cancelled and there Page 11 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 upon would cease to be a body corporate under Section 37 not to be entitled to institute and defend suits or other legal proceedings. If the interpretation of the term 'Society' as sought to be canvassed by Mr.Joshi, the learned counsel appearing for the respondent Bank, is accepted so as to include a Multi-State Cooperative Society within the definition under Section 2(19) of the Act of 1961, then under such circumstances, the term 'Registrar' and 'subject to provisions of the rules' would have to be given a wider meaning to even include the Registrar under the Multi-State Cooperative Societies Act, 2002, which would completely change the complexion and scope of the entire proceedings.

To put it differently, if the respondent Bank herein is permitted to continue the legal proceedings under the State Act of 1961 by virtue of the provisions of Section 159, the effect in substance would be to indirectly permit the State Act to have extra territorial operation and the Multi-State Cooperative Societies would be regulated by the State Cooperative Societies Act. If that be so, then a Multi-State Cooperative Society would be subjected to regulation by the Registrar of a State, which is impermissible.

We are fortified in taking the aforesaid view by a Page 12 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 judgment of the Supreme Court in the case of Naresh Shanker Srivastave v/s. State of U.P. and others, reported in 2009 SC 2450. The observations made by the Supreme Court in paragraph 17 of the judgment are referred to and relied upon.

"17. As noted earlier, Section 95 of the Multi-State Act takes care of a situation arising out of re-organisation of States of certain class of co-operative societies. Indeed, the very rationale or legal justification of having such a provision in the statute book is to provide continuity to those co-operative societies, the objects of which were confined to one State immediately before the day on which the re- organisation takes place but as from the day of the re- organisation of the State its object extends to more than one State, by declaring that such co-operative societies shall be deemed to be a multi State cooperative societies, registered under the corresponding provisions of the Multi-State Act. The very purpose of having this kind of provision is to stop the applicability of a State Co-operative Societies Act over more than one State as a State Act cannot have extra-territorial operation and the multi-State co- operative societies cannot be regulated by a State Co- operative Societies Act."

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C/SCA/7678/2014 ORDER DATED: 14/07/2022 We are also not impressed by the submission of Mr.Joshi, learned counsel appearing for the respondent Bank, that by virtue of the Ninety-Seventh Constitutional Amendment, the term 'Cooperative Society' as may be defined should be considered, as according to Mr.Joshi, the definition of the term 'Cooperative Society' is wide enough to take in its ambit the Multi-State Cooperative Society.

First, the Ninety-Seventh Constitutional Amendment would not apply to a merger effected in 2006, and in any view of the matter, Article 243ZT would not be applicable as the State Government has till date not amended the definition of the term 'Cooperative Society' as suggested in the Constitution (Ninety Seventh Amendment) Act, 2011. On the contrary, Article 243ZT of the Ninety-Seventh Constitutional Amendment makes the position very clear. Article 243ZT is as follows :

"243ZT. Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force Page 14 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less."

We are also not impressed by the submission of Mr.Joshi, the learned counsel appearing for respondent No.1 Bank that if a purposive interpretation or a purposeful meaning is not attached to the definition of the term 'Society' under the Act of 1961 so as to include a Multi-State Cooperative Society, then the same would lead to lot of difficulties and hardship on the part of the respondent No.1 Bank in recovering the dues from the petitioner. We may only say that in a case where the statutory provision is plain and unambiguous, the Court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. Reference may be made to a decision of the Supreme Court in E.Palanisamy v/s. Palanisamy, (2003)1 SCC 123, paragraph 5.

"The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well- settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance of the statutory provisions. Equitable consideration have no place in such matters."

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C/SCA/7678/2014 ORDER DATED: 14/07/2022 Mr.Joshi also contended that the petitioner, who is a defaulter, is getting undue advantage of his own wrong and more particularly because of the merger of Unnati Cooperative Bank Limited with respondent No.1 Bank. According to Mr.Joshi, a defaulter of a bank should not be permitted to take advantage of such technicalities. We are afraid that such submission could ever be accepted. The function of the Court is to interpret law according to the intention of the Legislature and apply to facts of the case before it. Only with a view to suit the convenience of the bank, the court cannot interpret the law as suggested by Mr.Joshi. We may only say that the merger was not a subject matter of challenge in the main writ- petition, but we cannot overlook the fact that Section 17 of the Act of 2002 does not permit or empower a Multi- State Cooperative Society to take over any cooperative society.

Bare reading of Section 17 of the Act of 2002 would suggest that a Multi-State Cooperative Society may, by a resolution passed by majority of not less than two-third of the members present and voting at a general meeting of the society, transfer its assets and liabilities in whole or in part to any other multi-state cooperative society or a cooperative society; divide itself into two or more Page 16 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 multi-state cooperative societies or divide itself into two or more cooperative societies.

This aforesaid fact is also confirmed by the Reserve Bank of India, the apex bank of this country, in its Circular dated 2nd February 2005 saying that there are no specific provision in the State Acts or the Central Act for the merger of a cooperative society under the State Acts with that under the Central Act.

We shall now look into the decisions relied upon by Mr.Joshi in support of his contentions.

In Vanguard Fire and General Insurance Company Limited, Madras (supra), the question before the Supreme Court was as to construction of the word 'insurer' as used in Sections 33(1) and 2-D of the Insurance Act, 1938, which reads as follows :

"33(1). The Central Government may, at any time, by order in writing, direct the Controller or any other person specified in the order, to investigate the affairs of any insurer and to report to the Central Government on any investigation made by him."

"2-D. Every insurer shall be subject to all the Page 17 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 provisions of this Act in relation to any class of insurance business so long as his liabilities in India in respect of business of that class remain unsatisfied and not otherwise provided for."

Section 2(9) of the Insurance Act, 1938 defines an 'insurer' as a person carrying on the business of 'insurance'. The contention before the Supreme Court was that Sections 33(1) and 2-D did not apply to an insurer who had closed his business completely as the definition of the word insurer in Section 2(9) postulates actual carrying on of the business. Rejecting the above contention, the Supreme Court pointed out that in the context of Sections 33(1) and 2- D and 'taking into account the policy of the Act and the purposes for which the control envisaged by the Act was imposed on insurers', the word 'insurer' in the said Sections also refers to insurers who were carrying on the business of insurance but have closed it.

We may state that the decision of the Supreme Court in Vanguard Fire and General Insurance Company Limited, Madras (supra) was considered in the case of Apex Co- operative Bank of Urban Bank of Maharashtra and Goa Limited (supra), which we have relied upon and discussed in our judgment. The Supreme Court distinguished the decision rendered in Vanguard Fire and General Insurance Page 18 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 Company Limited, Madras (supra) by observing as under :

"Similarly in Vanguard Fire Insurance Company's case the question was whether the word "Insurer" in Section 33 of the Insurance Act, 1938 included a company which had closed insurance business. This Court held that the word "Insurer" referred not only to a person who was actually carrying on business but also to one who has subsequently closed. Thus here also the party had actually carried on business. These are completely different situations from one where no business, of the type envisaged, has been carried on. If no business has been carried on, then mere intention to carry on in future would not bring it within the meaning of the term "carrying on business". Also as stated above to give such an interpretation would be to permit arbitrariness."

Thus, the ratio of the decision of the Supreme Court in Vanguard Fire and General Insurance Company Limited, Madras (supra) would not be of any assistance or help to the client of Mr.Joshi.

In Pushpa Devi and others (supra), Supreme Court made the following observations in paragraphs 18, 19 and 20, which have been very heavily relied upon by Mr.Joshi.

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C/SCA/7678/2014 ORDER DATED: 14/07/2022 The said paragraphs read as under :

"18. It is true when a word has been defined in the interpretation clause, prima facie that definition governs wherever that word is used in the body of the Statute unless the context requires otherwise. "The context" as pointed out in the book Cross-Statutory Interpretation (2nd ed. 43) "is both internal and external". The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of the Act. The external context involve determining the meaning from ordinary linguistic usage (including any special technical meanings) from the purpose for which the provision was passed, and from the place of the provisions within the general scheme of statutory and common law rules and principles.

19. The opening sentence in the definition of the section states "unless there is anything repugnant in the subject or context". In view of this qualification, the court has not only to look at the words but also to examine the context and collocation in the light of the object of the Act and the purpose for which a particular provision was made by the Legislature. Reference may be made to the observations of Page 20 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 Wanchoo, J., in Vanguard Fire and General Insurance Co. Ltd.v. M/s. Fraser and Ross, (1960) 3 SCR 857 at p. 863 : (AIR 1960 SC 971 at p. 975) where the learned Judge said that even where the definition is exhaustive in as much as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. In that case, the learned Judge examined the construction of the word 'insurer' as used in Sections 33(1) and 2-D of the Insurance Act,, 1938, in the light of the definition of that word under Section 2(9) thereof. The Insurance Act by Section 2(9) defines an 'insurer' as a person carrying on the business of 'insurance'. The question arose whether Section 33(i) and 2-D did not apply to an insurer who had closed his business completely as the definition of the word insurer in Section 2(9) postulates actual carrying on of the business. It was pointed out that in the context of Sections 33(1) and 2-D and taking into account the policy of the Act and the purposes for which the control was imposed on insurers, the word 'Insurer' in the said sections also refers to insurers who were carrying on the business of insurance but have closed it.

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C/SCA/7678/2014 ORDER DATED: 14/07/2022

20. Great artistry on the Bench as elsewhere is, therefore, needed before we accept, reject or modify any theory or principle. Law as creative response should be so interpreted to meet the different fact situations coming before the court. For, Acts of Parliament were not drafted with divine prescience and perfect clarity. It is not possible for the legislators to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislators do not deal with the specific controversies. When conflicting interests arise or defect appears from the language of the statute, the Court by consideration of the legislative intent must supplement the written word with 'force and life'. See, the observation of Lord Denning in Seaford Estate Ltd. v. Asher, (1949) 2 KB 481 at p. 498."

The observations of the Supreme Court came in the backdrop of the following fact situation. The respondent was the landlord of the premises consisting of a shop at Ludhiana. The shop was taken on rent by one Amar Chand. After the demise of Amar Chand, his brother Diwan Chand succeeded to the tenancy rights. Diwan Chand also died, leaving behind his widow and a minor son. The widow and the minor son of Diwan Chand were the appellants before the Supreme Court. The landlord Page 22 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 brought an action for eviction under Section 13 of the Act on the ground of arrears of rent, subletting, etc. The case of the landlord was that the appellants inducted a sub- tenant and delivered exclusive possession of the shop premises. Before the Rent Controller, the appellants of that case which included the sub-tenant, on the first date of hearing, tendered the arrears of rent, with interest and cost determined by the Controller. The landlord did not accept the amount, saying that the tender was neither legal nor valid as appellant No.3 was a sub-tenant. The Rent Controller held that the tender was not legal and valid since Saligram was not a tenant, and accordingly, ordered eviction. An appeal preferred by the tenant was disposed of on a preliminary point, that is, on the validity of the amount deposited by the common counsel for the parties on the first date of hearing of the case. The appellate authority held that the amount deposited on behalf of the three appellants was not valid since Saligram, a subtenant, was a stranger. The High Court confirmed the order of the appellate authority by dismissing the tenant's revision in limine. The tenant, along with Saligram, sub-tenant, preferred appeal before the Supreme Court. The question before the Supreme Court was as to whether the word 'tenant' referred to in Section 13(2)(i) proviso of the East-Punjab Urban Rent Restriction Act, 1949 would carry the same meaning as Page 23 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 given to it under the definition, and 'tenant' as defined thereunder whether was alone entitled to avail of the benefit of the proviso which provided that if the tenant, on the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest at 6% per annum on such arrears together with the cost of the application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. Supreme Court took the view that there was no merit in the submission that the proviso was intended to protect the tenant as defined under the statute and not a person claiming to be a tenant. Supreme Court held that the persons who are not tenants could also be given the benefit of the proviso. In the peculiar facts of the case, Supreme Court held that if there are proceedings for eviction with persons claiming tenancy along with the undisputed tenant or to his exclusion, the acceptance of that submission may lead to arbitrary and unjust result.

It was in the peculiar facts of that case that the Supreme Court relied on the opening sentence in the definition of the section 'unless there is anything repugnant in the subject or context'. Supreme Court read into the legislative intent as evident from the provision itself and held that the governing principle of the proviso was that the tenant Page 24 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 could pay and stay in an action for eviction for default and at the same time, the landlord is ensured payment of arrears, interest and the cost that he has incurred without the necessity of coming to civil court to recover it.

Thus, the ratio of Pushpa Devi (supra) would not be of any help to Mr.Joshi's client, as discussed above.

Thus, both the judgments of the Supreme Court relied upon by Mr.Joshi does not hint at suggesting of ignoring the definition altogether and to include something which is wholly outside the scope of the definition. The expression used in the definition is to be given meaning assigned to it unless context otherwise requires. Whether in the present case, the context otherwise so requires to give the definition a meaning other than what has been defined has been exhaustively examined by us and we have reached to the conclusion that the term 'society' under the Act of 1961 would mean under the Act of 1961 only and the context otherwise does not require to give the definition a meaning other than what has been defined.

For the foregoing reasons, we allow this Appeal. The judgment and order passed by the learned Single Judge is hereby set-aside. Special Civil Application No.9849 of Page 25 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 2009 is hereby allowed and it is hereby declared that the respondent no.1 has no power to proceed against the petitioner pursuant to the auction notice dated 11th September 2009 on the strength of a decree obtained by the erstwhile bank, namely, Unnati Cooperative Bank Limited, which stood merged with the respondent no.1 Bank. No order as to costs."

9.1 Section 17 of the Gujarat Cooperative Societies Act reads thus :-

"SECTION 17 : Amalgamation, transfer, division or conversion of societies (1) Subject to the provisions of the rules and the previous sanction of the Registrar a society may. by resolution passed by two-thirds majority of the members present and voting at a special general meeting held for the purpose, decide-

(a) to amalgamate with another society;

(aa) to amalgamate with another society registered under the Multi-State Co operative Societies Act, 2002 (39 of 2002).".

(b) to transfer Its assets and liabilities, in whole or In part, to any other society;

(d) to convert Itself into another class of society; or

(e) to change Its objects.

(2) Where the amalgamation, transfer, division or conversion referred to in sub-section (1) Involves a transfer of the Page 26 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 liabilities of society to any other society, the Registrar shall not sanction the resolution of the society unless he is satisfied that-

(i) the society, after passing such resolution, has given notice thereof In writing to all Its members, creditors and other persons whose Interests are likely to be affected (hereinafter, in this section referred to as "other Interested persons"), giving them the option, to be exercised within one month from the date of the receipt of such notice, of becoming members of any of the new societies, or continuing their membership in the amalgamated or converted society, or of withdrawing their investments in its shares, their deposits and loans and demanding payment of their other dues. if any.

(ii) all the members and creditors and other interested persons, have assented to the decision, or are deemed to have assented thereto by having failed to exercise the option within the period specified in clause (i), and

(iii) all claims of members and creditors and other interested persons, who exercise the option within the period specified, have been met in full.

(3) Notwithstanding anything contained in the Transfer of Property Act, 1882 (IV of 1882), or the Indian Registration Act. 1908 (XVI of 1908), In the event of division or conversion, the registration of the new societies or, as the case may be, of the converted society, and In the event of amalgamation, on the amalgamation the resolution of the societies concerned with amalgamation, shall in each case be sufficient conveyance to vest the assets and liabilities of the Page 27 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 original society or amalgamating societies in the new societies or converted or amalgamated society, as the case may be.

(4) The amalgamation, transfer, division or conversion made under this section shall not affect any right or obligation of the societies so amalgamated, or of the society so divided or converted. or of the transferee, or render defective any legal proceedings which might have been continued or commenced by or against the societies which have been amalgamated, or divided or converted; and accordingly such legal proceedings may be continued or commenced by or against the amalgamated society. the converted society, the new societies or the transferee, as the case may be."

Section 3(h) and Section 3(p) of the Multi-State Cooperative Societies Act, 2002 read thus :

"Sec.3(h). 'Co-operative Society' means a society registered or deemed to be registered under any law relating to co- operative societies for the time being in force in any State.

Sec.3(p). 'Multi-State Co-operative Society' means a society registered or deemed to be registered under this Act and includes a national co-operative society and a federal cooperative;"

10. In view of this Court, the issue raised in the present Page 28 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 writ-application is no longer res integra. The facts as stated above are undisputed and, therefore, the same are not repeated. Undisputably the writ-applicant Bank is registered Multi State Cooperative Bank under the Multi State Cooperative Societies Act, 2002. The respondents No.1 and 2 had obtained loan from the erstwhile Surendranagar Mercantile Cooperative Bank Ltd., which later on merged with the writ-applicant Bank under the guidelines of the Reserve Bank of India on 27.1.2010 by virtue of the order passed by the Registrar, Cooperative Societies, Gandhinagar and with due approval of the Central Registrar of Multi State Cooperative Societies, New Delhi and Reserve Bank of India. The Lavad Suit which was filed by the erstwhile Surendranagar Mercantile Cooperative Bank Ltd., being Lavad Suit No.398 of 2004 and the judgment/order passed by the Board of Nominee, Rajkot dated 15.4.2004 and the Summary Suit Nivedo was issued by the Board of Nominee, Rajkot on 10.6.2004 in favour of the erstwhile Surendranagar Mercantile Cooperative Bank Ltd. The writ-

applicant having taken over the Surendranagar Mercantile Cooperative Bank Ltd., by merger dated 27.1.2010 issued Page 29 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 recovery notice against the respondents No.1 and 2 on 21.1.2013 and initiated proceedings against the respondents No.1 and 2 under Section 103 of the provisions of the Gujarat State Cooperative Societies Act, 1961. The respondents No.1 and 2 herein challenged the same by filing Revision Application No.46 of 2014. By the impugned order dated 27.3.2014 the Recovery Officer held that it was not open for the writ-applicant to initiate recovery against the respondent under the provisions of the Gujarat State Cooperative Societies Act. Placing reliance on the ratio as laid down in the Letters Patent Appeal No.383 of 2010 as discussed above, in view of this Court, the aforesaid order passed by the respondent authority calls for no interference. Clearly the amendment which has been entered into which is relied upon by the writ-

applicant is dated 5.7.2014, more particularly Clause 7(1) is subsequent to the order passed by the Appellate Authority which is dated 24.3.2014. In view of this Court no error could be said to have been committed by the respondent authority while allowing the application filed by the respondent No.2. In the facts of the present case and as the ratio as laid down by Page 30 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022 C/SCA/7678/2014 ORDER DATED: 14/07/2022 the Hon'ble Division Bench in the judgment dated 26.9.2012 in Letters Patent Appeal No.383 of 2010 this Court is not inclined to interfere with the order dated 27.3.2014 passed by the Secretary (Appeals). No interference is called for in the impugned order dated 24.3.2014 passed by the respondent, more particularly in view of the fact that no error of law much less any error of law could have been committed by the respondent while rendering the aforesaid decision. No interference is called for under Article 226 of the Constitution of India to exercise its extraordinary discretion under Article 226 of the Constitution of India.

11. For the aforesaid reasons, the present writ-application fails and the same is dismissed.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 31 of 31 Downloaded on : Sat Dec 24 21:05:48 IST 2022

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