Gujarat High Court
Judgename :A.M.AHMADI
BHAVNAGAR DISTRICT CO-OPERATIVE BANK LIMITED - Appellant
Versus
H.M.JOSHI - Respondent
S.C.A. 1311 of 1978
Decided On : 06/25/1985
Gujarat Co-operative Societies Act, 1961 - Section 161, 107, 114, 155, 108, 109, 110, 113, 91 and 20 - Liquidation proceedings - Retrospective exemption - Consequences nugatory - Petition is whether power to grant exemption can be exercised retrospectively In order to answer this question a few relevant facts may be stated - petitioner a Co-operative Bank registered under provisions of Act had advanced loans to respondents which are Service and Credit Societies also registered under Act - said three Societies were directed to be would up and petitioner Bank was appointed Liquidator of said Societies - Under of Act winding up proceedings of a society have to be closed within three years order of winding up unless period is extended by Registrar Which shall not exceed four years in aggregate - It further provides that immediately after expiry of seven years from of order for winding up liquidation proceedings shall be deemed to have been terminated and Registrar shall pass an order terminating same – Held, order of cancellation be deemed (to be dissolved and shall cease to exist as a corporate body Mr. Joshi submitted that an the termination of liquidation proceedings without the final report of the liquidator by mere efflux of time the society revives and would continue to exist till its registration is cancelled under sub-sec. (1) of sec. 20 of the Act - Line of reasoning was that if the society exists de novo proceedings for winding up of the society can be taken notwithstanding the termination of the winding - Fiction created by proviso of Act that liquidation proceedings have to be treated as terminated and an order passed to that effect as if final report of Liquidator is received by Registrar - If this is kept in mind it becomes obvious that District Registrar would be required to direct convening of general meeting of members of society for ultimate cancellation of registration of society - Once liquidation proceedings come to an end by virtue of fiction there can be no question of winding up proceedings being commenced of Act - Such an interpretation would render fictional termination meaningless - Petition dismissed
( 1 ) THE short question which arises for consideration in this petition is whether the power to grant exemption under section 161 of the Gujarat Co-operative Societies Act 1961 (hereinafter called the Act) can be exercised retrospectively In order to answer this question a few relevant facts may be stated. The petitioner a Co-operative Bank registered under the provisions of the Act had advanced loans to respondents Nos. 4 to 6 which are Service and Credit Societies also registered under the Act. The said three Societies were directed to be would up under sec. 107 (3) of the Act and the petitioner Bank was appointed the Liquidator of the said Societies. Under sub-sec. (1) of sec. 114 of the Act the winding up proceedings of a society have to be closed within three years from the date of the order of the winding up unless the period is extended by the Registrar Which shall not exceed four years in the aggregate. It further provides that immediately after the expiry of seven years from the date of the order for winding up the liquidation proceedings shall be deemed to have been terminated and the Registrar shall pass an order terminating the same. In the instant case the winding up orders were passed in respect of respondent No. 4 on 28/04/1967. in respect of respondent No. 5 on 20/06/1967 and in respect of respondent No. 6 on 12/12/1967. Admittedly the Liquidator did not submit a report to the Registrar for the termination of the liquidation proceedings within the statutory period and therefore by virtue of the proviso to sec. 114 (1) of the Act the liquidation proceedings were deemed to be terminated and an order to that effect was passed by the Registrar on 1/09/1976 in respect of respondents Nos. 4 to 6 and certain other Co-operative Societies terminating the liquidation proceedings and for cancellation of the certificate of registration of the said Societies. Against this order the petitioner Bank filed a revision application under sec. 155 of the Act wherein it was inter alia contended that the State Government should exercise power under sec. 161 on the Act. the said revision application was rejected as is clear from the letter written to the petitioners advocate dated 21/11/1977 Annexure J to the petition. The petitioner Bank has therefore filed this petition for quashing the order of 1/09/1975 (Annexure `i to the petition) and for such other consequential reliefs as may ensue therefrom.
( 2 ) SEC. 107 empowers the Registrar to make an order directing that a society he wound up and to appoint a Liquidator of such Society under sec. 108 of the Act. The order passed by the Registrar can be tested in appeal under sec. 109 of the Act. The powers of the Liquidator have been catalogued in clauses (a) to (o) of sec. 110 of the Act. Section 113 provides that the accounts maintained by the Liquidator shall be audited in the manner the Registrar considers fir. Sec 114 (1) with which we are concerned next provides as under:"114 The winding up proceedings of a society shall be closed within three years from the date of the order of the winding up unless the period is extended by the Registrar. Provided that the Registrar shall not grant any extension for a period exceeding one year at a time and four years in the aggregate and shall immediately after the expiry of seven years from the date of the order for winding up of the society deem that the liquidation proceedings have been terminated and pass an order terminating the liquidation proceedings". It is clear on a plain reading of this provision that the winding up proceedings come to an end within three years from the date of winding up unless the period is extended which shall not in the aggregate exceed four years. In other words the initial period of three years and the extended period should not exceed seven years in the aggregate. On the completion of seven years period from the date of the order of winding up of the society the Registrar shall deem that the
SupremeToday
Login now and unlock free premium legal research
Login to SupremeToday AI and access free legal analysis, AI highlights, and smart tools.
Login
now!
India’s Legal research and Law Firm App, Download now!
Copyright © 2023 Vikas Info Solution Pvt Ltd. All Rights Reserved.