BISEN SINGH Vs. BHOPALNAGRIK SAHAKARI BANK MARYADIT

JUDGEMENT

(1.) Challenge in this writ petition under Article 227 of the Constitution of India is made to an order dated 30-11-2009 Annexure P/4 passed by the Madhya Pradesh Co-operative Tribunal Bhopal, interfering with the order dated 31-3-2009 Annexure P/3 passed by the Joint Registrar, Bhopal, in an appeal filed before him under section 78(1) of the Madhya Pradesh Co-operative Societies Act, 1960. Facts in brief necessary for disposal of the writ petition goes to show that respondent No. 3 Shri Naresh Patel took a loan from respondent Bank and in the said loan transaction petitioner herein, Shri Bisen Singh, was a guarantor. It seems that the loan amount was not paid by the person concerned, namely respondent No. 3 Shri Naresh Patel and thereafter proceedings were initiated against both respondent No. 3 Shri Naresh Patel and present petitioner Shri Bisen Singh under section 84 of the Madhya Pradesh Co-operative Societies Act for enforcement of charge, on the basis of agreement entered into. In the proceedings that were held under section 84 an order was passed on 8-3-1999 directing for recovery of Rs. 2,74,856 from the petitioner and respondent No. 3 Shri Naresh Patel jointly. As the order had adverse effect on the petitioner, he filed an appeal against the aforesaid order under section 78 of the Madhya Pradesh Co-operative Societies Act, 1960 before the Joint Registrar, Co-operative Societies Bhopal and came out with a ground that in the proceeding held under section 84 of the Act, he was not noticed and the order Annexure P/1 was passed without hearing him. The aforesaid ground was raised by the petitioner before the Appellate Authority and Appellate Authority after going through the original record of the proceeding held under section 84 of the Act, recorded a finding that the order Annexure P/1 for enforcing the recovery from the petitioner, has been passed without hearing him or notice to him and, therefore, quashed the same vide Annexure P/3. Aggrieved by this the respondent Bank filed an appeal before the Madhya Pradesh Co-operative Tribunal and the Tribunal having allowed the appeal and dismissed the proceeding initiated by the petitioner under section 78(3) of the Madhya Pradesh Co-operative Societies Act, before the Joint Registrar only on the ground of delay. The petitioner have filed this writ petition.

(2.) Shri Pushpendra Yadav, learned counsel for the petitioner invited our attention on the findings recorded under section 78 of the Act, in the order dated 31-3-2009 in paragraph 7 and pointed out that a finding is recorded by the Appellate Authority to the effect that in the proceedings held under section 84 of the Act, notice was never served on the present petitioner and on such consideration, the Appellate Authority interfered into the matter. However, it is argued by Shri Pushpendra Yadav that Co-operative Tribunal interfered into the same and held that the appeal filed by the petitioner was beyond the period of limitation. This finding is recorded because in the proceedings for recovery held in the Court of Assistant Registrar, Co-operative Court Bhopal, the petitioner had appeared on 17-7-1999 and on various dates thereafter personally or through his counsel and having acquired knowledge of the ex parte order passed on 17-7-2013, it is held that petitioner has not filed the appeal before the Joint Registrar within 30 days from the date of knowledge of Annexure P/1, therefore the appeal under section 78 of the Act, was beyond the limitation presented.

(3.) Shri Pushpendra Yadav, learned counsel for the petitioner, took us through the provisions of section 86 of the Co-operative Societies Act and emphasized that every order passed and every decision taken by the Registrar or Appellate Authority is to be communicated in accordance with the provision contained in section 86 of the Act. Thereafter, he placed emphasis on section 78 of the Act, to say that the period of 30 days has to be counted from the date of communication of the order and not from the date of knowledge. It is emphasized by him that in holding the appeal filed by the petitioner before the Joint Registrar is not within 30 days from the date of knowledge of the impugned order, a perverse finding, contrary to law has been recorded by the Co-operative Tribunal and is much as the law contemplates that every order has to be communicated under section 86 of the Act and within 30 days from such communication, the appeal is to be filed under sub-section (3) of section 78 of the Act, the period as is contemplated is to be calculated with reference to the date of communication to the order, and not from the date of knowledge by ready the word, knowledge with sub-section (3) of section 78 of the Act, according to Shri Pushpendra Yadav, illegally has been committed. It is argued that in this case, communication of the order Annexure P/1, as required under section 86 is not made to the petitioner and, therefore, the appeal filed was within limitation and in rejecting the same on the ground that appeal was not being filed within 30 days of acquiring knowledge, an error apparent on the face of the record is committed by the Tribunal, which needs to be corrected in this petition filed under section 227 of the Constitution of India.