The time required for obtaining a certified copy of the award can be excluded while computing the period of limitation for an appeal under section 136(1) of the West Bengal Cooperative Societies Act, 1983 read with the relevant entry in the Third Schedule, as the limitation period begins to run from the date of communication of the order and the aggrieved party cannot file an appeal without first obtaining a certified copy of the award.

1. This writ petition has been placed before us upon a reference made by a learned Single Judge through the judgment dated 5th March, 2008. The learned single Judge was of the view that there were different views of two Division Benches of this Court with regard to the jurisdiction of the West Bengal Cooperative Tribunal ("the Tribunal" for brevity) constituted under the West Bengal Cooperative Societies Act, 1983 ("the Act" for brevity) for condoning delay in preferring an appeal which was presented beyond the period of limitation.

2. In Egra Thana Cooperative Agricultural Marketing Society Ltd. & Ors. vs. Registrar of Cooperative Societies & Ors., 2003(2) CHN 460, a Division Bench of this Court held that in view of the provisions of sub-section (2) of section 136 of the Act, which specifically provides that the provisions of the Limitation Act, 1963 shall not apply to an appeal preferred under sub-section (1) of section 136, the Tribunal constituted under the Act has no jurisdiction to condone the delay in preferring an appeal under section 136 (1) of the Act which, read with item No. 11 in the Third Schedule to the Act, provides limitation period of one month from the date on which the order, decision or award of the Arbitrator under section 96 of the Act is communicated.

3. In Contai Cooperative Bank Ltd. & Anr. vs. Sagar Food Products & Ors., 2005(1) WBLR (Cal) 288, another Division Bench of this Court held that the period spent for obtaining certified copy of the award is to be excluded in calculating the period of limitation.

4. At the outset, it needs to be noted that in Contai Cooperative Bank case (supra) the Division Bench rendering the said decision did take into consideration the previous decision in Egra Thana Cooperative Agricultural Marketing Society case (supra) and, therefore, as per the settled legal position, the learned Single Judge was bound by the view taken by the subsequent Division Bench in Contai Cooperative Bank case.

5. On a careful reading of both the decisions it clearly transpires that Egra Thana Cooperative Agricultural Marketing Society Ltd. case (supra) was concerned with the fact situation where the appellant had made an application under section 5 of the Limitation Act for condonation of delay. In that case the condonation was NOT prayed for on the ground that if the period requisite for obtaining certified copy of the award challenged in the appeal was excluded, then the appeal was preferred within the limitation period of one month as prescribed in the Third Schedule (Item No. 11) of the Act.

On the other hand, in the Contai Cooperative Bank case (supra), the appellant had contended that if the period requisite for obtainil1g certified copy was excluded, the appeal was preferred within the limitation period of one month, and a Division Bench of this Court accepted the said contention after analyzing the relevant provisions of the Act and the Rules.

6. We may now refer to the relevant statutory provisions.

Section 136 of the Act reads as under:-

“S.136. Appeal.-(1) An appeal shall lie from an order shown in column 2, to the authority shown in column 3, and within the period shown in column 4, of the Third Schedule to this Act.

(2) The provisions of the Limitation Act, 1963 (36 of 1963), shall not apply to an appeal referred in sub-section (1)……”

Item No. 11 in the Third Schedule to the Act, reads as:-

THIRD SCHEDULE

Appeals

Sl. No. Appeal lies By whom appeal Authority to whom Period of limitation

Against may be preferred appeal shall lie

11 An order, Any person To the Cooperative One month from the

decision or aggrieved. Tribunal having date on which the

award under jurisdiction. order, decision or

section 96 award is

communicated

The relevant provisions of the West Bengal Cooperative Societies Rules, 1987 read as under:

Rule 227(4)(d) provides that every memorandum of appeal shall be accompanied by a certified copy of the award or the order complained of. Rule 1