2011 Supreme(Bom) 795

2011 (6) ALLMR 550
High Court of Judicature at Bombay
S.C. DHARMADHIKARI
Tarkude Hotels Pvt.Ltd.
Versus
The Rupee Co-operative Bank Ltd. & Others
WRIT PETITION NO.3234 OF 2011 WITH WRIT PETITION NO.3271 OF 2011
Decided On : 13-07-2011

Headnote:Maharashtra Co-operative Societies Act, 1960 - Sections 91 to 98-Civil PC, 1908, Sections 10, 151-Cooperative Court- Powers of-Consolidation of proceedings-Order in exercise of Revisional Power, despite concurrent orders by Courts below rejecting prayer for consolidation-Trial Court, while rejecting paper for consolidation left open scope for future application-Order of Revisional Authority not illegal-No perversity committed by Revisional Court in interfering with concurrent orders-Concern orders interfere with in exercise of Revisional powers to enabling doing so.-The conclusion of the learned Judge that consolidation of both disputes to avoid multiplicity and conflicting decisions, is certainly a germane and relevant consideration. The learned President found that there is no propriety to allow separate trials one after another in respect of the same matter in issue and there is a possibility of duplication of evidence was wasting of precious judicial time, both of which are germane and relevant considerations, in the peculiar facts of this case. If the bank is seeking to recover the amount advanced as loan to the petitioner and has filed a dispute for a money decree and to enforce the mortgage created in its favour whereas the petitioner states that in respect of the same facilities accounts were suspended but they have been repaid and the bank is refusing to extend to benefit of RBI circulars and policies or agree to one time settlement, then, in view, the tests that have been applied by the learned President to the facts of this case are apposite and appropriate. Mere technicalities should not defeat the ends of justice. If the bank was given specific liberty in the previous orders to apply for consolidation of disputes and despite noting that one matter which was filed earlier is ripe for arguments, such a liberty was reserved, then, going by some hyper-technicalities, the relief of consolidation should not have been denied. It is not as if there was any dispute between the parties with regard to the similarities of dispute. There was no dispute with regard to this and that other relevant tests viz., avoidance of conflicting decisions and judgments. If there was no such dispute and all that was put in issue was the stage at which such reliefs can be granted, then Court does not sees how the learned President has committed any error apparent in allowing the revision applications consolidating the disputes. The learned President has gone by the contents of the application made by the petitioner invoking the jurisdiction and power of the trial Court under Section 10 of CPC to grant relief of consideration of both disputes. There the specific argument of the petitioner was what all ingredients of Section 10 have been satisfied. If there is common elements as far as parties and issue in both matters and the only objection was on the ground of res judicata and lack of bona fides on the part of respondent bank, then, the Revisional Court was justified in going into the record and finding out whether the case in that behalf has been made good by the petitioners. If the petitioner fails to make good that case, going by the clear wording of the trial Court’s order and that of the revisional Court dated 7th September 2010, then, the objection on the ground of res judicata has been rightly over ruled. While, it may be true that the principle should be applied to different stages of the same proceedings, yet, going by the liberty given by the trial Court to make the application while not denying the possibility of conflicting judgments and decisions, there is no perversity committed by the revisional Court in interfering with the concurrent orders. The concurrent orders have been interfered with in the exercise of revisional powers to enabling doing so and by applying correct legal principles in the peculiar facts of this case. The criticism of the revisional Court’s approach has, therefore, no substance.

       Maharashtra Co-operative Societies Act, 1960 - Sections 91 to 98-Civil PC, 1908, Sections 10 and 151-Co-operative Court- Power of-Limited powers conferred on Co-operative Court-All powers of Civil Court not conferred on it-Power’s of Civil Court to stay proceedings of suit not conferred on cooperative Court-Sections 10 and 151 of CPC not attracted to proceedings before cooperative Court.-There is no dispute with this proposition of law that all powers of Civil Court are not conferred on the cooperative Court. Sections 91, 92, 93, 94 and 95 themselves make this position clear. As far as Section 91 is concerned, that is a provision which is part of Chapter IX entitled "settlement of disputes". Sub-section (1) thereof opens with non obstante clause and if all other conditions as stipulated in the provision are satisfied, then, the dispute must go before the cooperative Court. That is as far as competency of cooperative Court. While that may be so, but Section 92 throws light on the Intention of Law Makers and the Legislature with reference to Sections 91 and 91-A provides that the limitation would be, notwithstanding, anything contained in the Limitation Act, 1963 but subject to the specific provisions in the MCS Act. At the same time, Section 93 providing for transfer of disputes from one cooperative Court to another and suspension of proceedings in certain cases, makes the position clear and if any reference is needed, sub-section (2) of the said provision is an answer. The procedure for settlement of dispute and powers of cooperative Court is set out in Section 94 and limited powers that are conferred on Civil Court by CPC have been conferred on the cooperative Court. It is well-settled that CPC is partly procedural and partly substantive. It is not as if the cooperative Court becomes a Civil Court by virtue of Sections 94 and 95. If that be so, then, it was unnecessary to make provisions for attachment before the award and an interlocutory order vide Section 95. Similarly, Section 96 speaks about the decision of cooperative Court. Section 97 provides for an appeal. If Section 97 had not been worded in the manner in which it is so worded, then, interlocutory orders of the cooperative Court would not have become appealable. Legislature, therefore, was conscious of the fat that a Civil Court which tries a civil suit and renders both, an order and decree, which are capable of being challenged in appeals, makes a separate provision for appeal from order and appeal from decrees. Accordingly, while engrafting some of these aspects into MCS Act, the Legislature provided for remedy of appeals to challenge both orders. Similarly, as far as recovery of monies are concerned, Section 98 makes the aspect clear that orders passed by the authorities or the cooperative Court shall, if not carried out, be deemed to be a decree of a Civil Court and shall be executed in the same manner as decree of such Court. Therefore, at separate stages, the applicability of CPC albeit to a limited extent has been provided in the MCS Act. If that be the intent and purpose and if these provisions are read with the MCS Rules, then, it is absolutely clear that such of the provisions which enable the Cooperative Court to inherently exercise its powers to do justice have been engrafted and included. Their applicability is not in any manner ruled out. However, when it comes to Section 10 of CPC, it is more than clear that one cannot lose sight of the fact that Section 10 cannot be invoked by applying the tests as if the proceedings before the cooperative Court filed by way of disputes are akin to a suit in a Civil Court. The CPC itself makes it clear in Part I the Courts subject to the provisions contained in the CPC have jurisdiction to try all suits of civil nature excepting suits of which cognisance is either expressly or implicatively barred. Prior thereto Sections 3 to 5 speak about applicability of CPC to proceedings before other Courts. The proceedings may be civil in nature but that does not mean that the Court trying them is a Civil Court and the proceedings are a "suit" within the meaning of CPC.