Honble GUPTA, J. – A ticklish but interesting question to be decided in this appeal is whether the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (Act. No. 51 of 1993) is applicable to the recovery of the debts by the co-operative bank, due to its members.

FACTS FIRST :

Appellant M/s. Phoneix Impex had Account No. 1 in the Jodhpur Central Cooperative Bank (respondent No. 2). A sum of Rs. 27,35,649 was outstanding against the appellant on 14.7.95. A demand was raised by the Bank but the appellant did not deposit the amount. Therefore, the proceedings of recovery were taken under the provisions of the Rajasthan Cooperative Societies Act (to be hereinafter referred to as `the Rajasthan Act of 1965). The respondent No. 2 calculated Rs. 37,71,323 as the sum outstanding against the appellant, and issued notification for sale of the property belonging to the appellant. It is on the issuance of the notification that the appellant filed writ petition alleging that the amount shown in the notification was not outstanding against it and also that the Bank could not recover the amount in accordance with the procedure laid down in the Rajasthan Cooperative Societies Act, 1965 as on 24th June, 1993 Central Act No. 51 of 1993 came into force and Tribunal was also established in Rajasthan under Sec. 3 of the Act vide Notification GSR (G) dated 30th August, 1994 which is the forum for the recovery of the debts outstanding to Banks or financial institutions. In the writ petition, it was averred that because of the bar of Sec. 18 of the Act No. 51 of 1993, the recovery proceedings by the respondents Bank could not be continued and by virtue of Sec. 31 of the said Act, the recovery proceedings should be transferred to the Tribunal established at Jaipur.

(2). In the return, the respondents No. 2 & 3 averred that the co-operative bank does not come in the definition of the `banking Company within the meaning of the Banking Regulation Act, `1949 (to be hereinafter referred to as `the Act No. 10 of 1949) and the Tribunal constituted under the Act No. 51 of 1993 does not have jurisdiction to entertain the debt disputes of the co- operative banks. It was also averred that disputes with regard to the debt of a co-operative bank can be raised only under Sec. 75 of the Rajasthan Act of 1965 and the writ petition is liable to be dismissed. It was further averred that alternative remedy of approaching the authorities under the Rajasthan Act of 1965 is available to the petitioner who is a member of the respondent Bank and as a matter of fact, it has already availed of the remedy available under that Act by filing a revision petition and hence the writ petition is not maintainable.

(3) In the rejoinder, it was averred that the petitioner has withdrawn the revision filed under the provisions of the Rajasthan Act of 1965 and that by virtue of Sec. 56 of the Banking Regulation Act, 1949, the Co-operative Bank is included in the definition of `Banking Company, and therefore, the Tribunal established under the Act of 1993 only can adjudicate the dispute between the parties.

(4). The learned Single Judge vide order dated 10th November, 1997 dismissed the writ petition RLW 1997 (3) Raj. 2096 (1) holding that the Cooperative Bank does not come in the definition of ``banking company and the petitioner firm has invo- ked the jurisdiction of this Court to delay the recovery proceedings.

CONTENTIONS :

(5). The contention of Mr. Parakh was that by the Banking Laws (Application to Cooperative Societies) Act, 1965 (Act No. 23 of 1965) the Banking Regulation Act has been amended and Chapter V was added and as Sec. 56 of that Act says that every Co-operative Bank shall be construed as a `banking company, the original definition of `banking company in the Banking Regulation Act of 1949 stands amended and the Co-operative Banks shall also be read in that definition. According to him, now in Sec. 2(b) (i) of Act No. 51 of 1993 `banking company shall also include a

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