2014(3) ALL MR 242
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RANJIT MORE, J.
Sai Darshan Co-Op. Credit Society Ltd. & Anr. Vs. Satyendra Subedar Singh
Writ Petition No. 7832 of 2013
28th August, 2013
Petitioner Counsel: Mr. SAMPATRAO A. PAWAR
Respondent Counsel: Mr. SANDEEP SINGH h/f Mr. MANOJ SHUKLA
(A) Maharashtra Co-operative Societies Act (1960), Ss.97, 94(3B) - Appeal under S.97 - Maintainability - Appeal filed against order dismissing the dispute for default on the part of disputant - Held, appeal u/s.97 is maintainable only against orders passed u/s.95 or S.96 of MCS Act - Impugned order cannot be said to have been passed under these two Sections - Hence, appeal held, not maintainable - Appropriate remedy for disputant is to file an restoration application u/s.94(3B) within 30 days from the day of dismissal. (Paras 7, 9)
(B) Maharashtra Co-operative Societies Act (1960), S.94(3B) - Amendment in S.94 - Applicability - Dispute dismissed for default on the part of disputant, in November, 2012 - Appeal preferred in April, 2013 - Pending appeal, sub-sec.(3B) introduced to S.94 with effect from 14th February 2013, which entitles disputant to file a restoration application within 30 days of dismissal - Though amendment introduced subsequent to trial court's order, same can be made applicable to the facts of the case. 2008(5) ALL MR 462 (S.C.), (2008) 8 SCC 99 Ref. to. (Para 10)
Cases Cited:
T. Kaliamurthi & Anr. Vs. Five Gori Thaikal Wakf & Ors., 2008(5) ALL MR 462 (S.C.)=AIR 2009 SC 840 [Para 10]
Rajendra Kumar Vs. Kalyan, (2008) 8 SCC 99 [Para 10]
JUDGMENT
JUDGMENT :- Rule. Rule made returnable forthwith. Counsel for the respondent waives notice. As short question is involved, petition is taken up for final disposal forthwith, by consent.
2. Heard learned counsel at length.
3. By this petition filed under Article 227 of the Constitution of India, the Petitioner has assailed the legality and propriety of the order dated 2nd August 2013 passed by the Maharashtra State Co-operative Appellate Court at Mumbai [for short "the Appellate Court"] in Appeal No. 113 of 2012. By the said order, the Appellate Court allowed the Respondent's appeal and order of the trial Court under which Respondent's dispute was dismissed in default came to be quashed and set aside.
4. The Respondent filed dispute against the Petitioner under section 91 of the Maharashtra Co-operative Societies Act, 1960 [for short "the MCS Act"] before 4th Cooperative Court, Ballard Pier, Mumbai for declaration that loan alleged to be sanctioned under Loan Account No. BL/12, S/B 34, L/138 and L/185 are null and void and are not binding upon him and the Petitioners are not entitled to recover loan amounts shown in the said accounts. The declaration was also sought to the effect that the Petitioner is not entitled to recover the loan amount granted under the Loan Account No. L/184, as the same has already been repaid by him. The Respondent also sought consequential reliefs. On 2nd November 2012, the Co-operative Court dismissed the dispute in default in view of the continuous absence of the Respondent. The Respondent thereafter preferred abovesaid appeal before the Appellate Court which came to be allowed by the order impugned in this petition.
5. Before the Appellate Court, the Petitioner raised preliminary objection regarding the maintainability of appeal filed by the Respondent in view of provisions of section 94 of the MCS Act. The learned Appellate Court, however, overruled the the Petitioner's objection on the ground that the Respondent's appeal is maintainable under section 97 of the MCS Act and therefore proceeded to hear the appeal on merits and ultimately restored the dispute.
6. The short question which falls for consideration before this Court is whether the Respondent's appeal under section 97 of the MCS Act against the order of the Co-operative Court passed under section 94 is maintainable. After considering the submissions of learned Counsel and after going through the order impugned along with the relevant provisions of the MCS Act, my answer is in the negative.
7. Section 94 of the MCS Act deals with the procedure for settlement of disputes and power of the Co-operative Court. Under sub-section (3A) thereof, if the disputant is present and opponent is absent when the dispute is called out for hearing, the Co-operative Court may decide the suit ex-parte and pass an award. The Co-operative Court may set aside the said ex-parte award subject to costs if the opponent makes an application within 30 days from the date of award and satisfies the Court that there was sufficient cause for his failure to appear when the dispute was called out for hearing. Sub-section (3B) was introduced on 14th February 2013 which reads thus :
"(3B) If the opponent is present and the disputant is absent, when the matter is called out for hearing, the Co-operative Court may dismiss the dispute for default, and pass an award accordingly. The Co-operative Court may restore the dispute which is dismissed for default and restore the same, upon such terms as to the payment of costs, as it thinks fit, if the disputant makes an application within thirty days from the date of its dismissal and appoint a day for hearing and deciding the dispute on merits."
The reading of above sub-section makes it clear that it deals with a situation where the disputant is absent. Under this sub-section Co-operative Court may dismiss the dispute for default and the Court is also empowered to restore the dispute on sufficient grounds if the application to that effect is made within 30 days from the date of dismissal.
8. Section 97 of the MCS Act deals with appeal against the decision under sections 96 or 95, which reads as follows :
"97. Appeal against decision under section 96 and order under section 95.- Any party aggrieved by any decision of the Co-operative Court under the last preceding section, or order passed by the Co-operative Court or the Registrar or the authorised officer under section 95 may, within two months from the date of the decision or order, appeal to the co-operative Appellate Court."
9. Reading of above sections make it clear that appeal under section 97 of the MCS Act is maintainable only against the orders passed under section 95 or 96. There is no dispute that order dismissing dispute in default was not passed either under section 95 or 96 of MCS Act. Section 95 deals with the attachment before award or orders and interlocutory orders. Section 96 deals with the decision of the Co-operative Court on merits. Thus, it cannot be said that order passed by the Co-operative Court in the present case dismissing the Respondent's dispute for default was passed under section 95 or 96. If that be so, appeal under section 97 of the MCS Act was not at all maintainable.
10. Dispute was dismissed on 2nd November 2012 and appeal was preferred on 1st April 2013. During the pendency of appeal, section 94 of the MCS Act came to be amended thereby sub-section (3B) is introduced with effect from 14th February 2013, which is reproduced above. Perusal of the same makes it clear that Co-operative Court can dismiss the dispute for default if the disputant remains absent. The Co-operative Court also has power to restore the dispute for the sufficient reasons, provided application to that effect is filed within 30 days. Above amendment is procedural in nature. It is settled law that amendment to the procedural law is normally retrospective. Reference can be made to T. Kaliamurthi & Anr v. Five Gori Thaikal Wakf & Ors. [AIR-2009 SC 840] : [2008(5) ALL MR 462 (S.C.)] and Rajendra Kumar v. Kalyan [(2008) 8 SCC 99]. Though this amendment was introduced subsequent to the trial court's order, in my opinion, same can be made applicable to the facts of the present case. The Appellate Court, therefore, ought to have taken cognizance of the said amendment and relegated the Respondent back to the trial Court for filing the proper application. The Appellate Court, however, erroneously precoded to hear appeal on the premise that same is maintainable under section 97 of the MCS Act.
11. I have already observed that appeal could not have been entertained as the subject matter of the same was not an order passed under section 95 or 96 of the MCS Act. In these circumstances, the impugned order cannot be sustained, same deserves to be quashed and set aside.. In that view of the matter, rule is made absolute in the following terms :
(i) The impugned order, viz., order dated 2nd August 2013 passed by the Appellate Court in Appeal No. 113 of 2012 is hereby quashed and set aside.
(ii) The Respondent is at liberty to apply before the Co-operative Court for restoration of his dispute along with an application for condonation of delay. Learned Counsel for the Petitioner stated that the Petitioner shall not oppose the delay condonation application.
(iii) In the event, the Respondent files application under sub-section (3B) of section 94 of MCS Act within eight weeks from today, the trial Court shall decide the same on merits as expeditiously as possible and preferably within the period of six months from the date of filing.