JUDGMENT - LODHA R.M., J.:---The important yet interesting question pertaining to legislation by incorporation has been raised in this writ petition. The question is: whether in section 2(e) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, "Act of 1993") which says that "banking company" shall have the meaning assigned to it in Clause (c) section 5 of Banking Regulation Act, 1949, the Co-operative bank is included by virtue of section 56(a)(i) of Banking Regulation Act which provides that unless context otherwise requires, reference to "Banking Company" shall be construed as reference to "Co-operative Bank".

2. The aforesaid question arises in the facts and circumstances which we very briefly narrate hereinafter. The Shamrao Vithal Co-operative Bank Ltd. a Scheduled Multi-State Co-operative Bank is the 1st petitioner in the writ petition. M/s. Star Glass Works respondent No. 1 is a partnership firm registered under the Partnership Act, 1932 carrying on the business of manufacturing of Glass Containers for cosmetics, foods, beverages and pharmaceutical industries. Respondent Nos. 2 and 3 are the partners of the 1st respondent partnership firm. The 1st respondent firm is said to have availed loan facility from the 1st petitioner bank. The loan of Rs. 32,00,000/- was sanctioned to the 1st respondent by the 1st petitioner-bank on the terms and conditions incorporated in Term Loan Agreement dated 17th January, 1998. The 1st respondent as well as its partners are alleged to have failed to pay the instalments under the agreement and according to the petitioners in the month of April 2001 a sum exceeding Rs. 29 lakhs was outstanding which remained to be paid by the respondents. The petitioners herein filed an application being Original Application No. 568 of 2001 before the Debt Recovery Tribunal III at Mumbai for recovery of the outstanding amount from the respondents. The Presiding Officer, Debt Recovery Tribunal III by its order dated 29th November, 2001 held that the Debts Recovery Tribunal has no subjectwise jurisdiction over the matter as the 1st petitioner bank is a Co-operative Bank and not a company under the Companies Act, 1956. Aggrieved thereby the petitioners preferred the appeal before the Debt Recovery Appellate Tribunal. The said appeal was dismissed on 16th January, 2002. The orders dated 29th November, 2001 and 16th January, 2002 passed by Debt Recovery Tribunal and Appellate Tribunal respectively are under challenge in this writ petition.

3. Mr. Virendra Tulzapurkar, learned Senior Counsel appearing for the petitioners submitted that under section 2(e) of Act of 1993 "banking company" is defined as having the meaning assigned to it in Clause (c) of section 5 of the Banking Regulation Act, 1949 and as such under the Act of 1993 as an effect of such incorporation the meaning given to the "banking company" in the Banking Regulation Act has to be given. The submission is that the wordings in the incorporating statute viz. Act of 1993 are not "banking company" as defined in the Banking Regulation Act but wording are "banking company shall have the meaning assigned to it in Clause (c) of section 5 of the Banking Regulation Act", and therefore, the other provisions in the Banking Regulation Act have to be seen to determine the meaning of expression "banking company". Learned Senior Counsel would submit that section 56(a) of the Banking Regulation Act has enlarged the meaning of "banking company" so as to include, inter alia a Co-operative Bank. According to him the effect of such incorporation is to write sections 5(c) and 56(a) of the Banking Regulation Act into section 2(e) of Act of 1993 and it would appear therefrom that "banking company" means any company which transacts business of banking in India including co-operative bank. The learned Senior Counsel also submitted that considered that way and the purposive interpretation, the Co-operatives banks are covered by the definition of

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