Altamas Kabir, J.:— The two Revisional Applications, being C.O Nos. 4 and 5 of 2001, which were being heard by the learned Single Judge in his revisional jurisdiction, were referred to the Division Bench for the purpose of deciding the question posed by the learned Judge as to whether the West Bengal Co-operative Societies Act, 1983, can condone the delay in preferring an appeal if presented beyond the period of limitation as prescribed under the Act. Since the very same question was also involved in C.O No. 971 of 2000, the same was also referred to this Bench for hearing along with C.O Nos. 4 and 5 of 2001.
2. The facts pertaining to C.O Nos. 4 and 5 of 2001 briefly stated are that the Opposite Party No. 1, Vidyasagar Central Co-operative Bank Ltd., gave a loan to the petitioners for business purposes and since the petitioners failed to pay the bank dues, the Opposite Party No. 1 filed a Dispute Case before the learned Arbitrator under the provisions of the West Bengal Co-operative Societies Act, 1983, hereinafter referred to as the “said Act”. The learned Arbitrator passed an award on 21st September, 1999, with a direction upon the petitioner to pay the principal amount as well as interest at the rate of per cent per annum.
3. Aggrieved by the said order passed by the learned Arbitrator the petitioners preferred appeals before the West Bengal Co-operative Tribunal along with applications for condonation of the delay in filing the appeals.
4. After considering the explanation given on behalf of the petitioners for the delay in filing the appeals, the learned Tribunal was of the view that such explanation was not satisfactory and accordingly by its order dated 14th November, 2000, dismissed the applications for condonation of the delay in filing the appeals. Consequently, the appeals as preferred, being unregistered Appeal Nos. 46 and 47 of 1999, were also dismissed.
5. Aggrieved by the said decision of the learned Tribunal the petitioners, Anupam Maity & Ors., and Nirmal Das & Ors., filed two separate revisional applications in this court under Article 227 of the Constitution, being C.O Nos. 4 and 5 of 2001. As indicated hereinbefore, the said two revisional applications came up for consideration before the learned Single Judge who took up the matters for hearing analogously, as common questions of law were involved therein.
6. As will appear from the order of the learned Single Judge, a preliminary Objection was taken by Mr. Bhattacharya, appearing on behalf of the respondent bank as regards the jurisdiction of the Tribunal to entertain applications for condonation of delay in preferring such appeals. Relying upon the provisions of section 136(2) of the aforesaid Act, Mr. Bhattacharya contended that the Tribunal had no authority to entertain an application for condonation of delay under section 5 of the Limitation Act, 1963, inasmuch as, section 136(2) of the said Act expressly prohibits application of the entire Limitation Act, 1963, to appeals preferred under sub-section (1). According to Mr. Bhattacharya, the Tribunal ought not to have entertained the application for condonation of delay and should have rejected the same as being not maintainable without entering into the merits of the said applications. It was Mr. Bhattacharya's contention that the Court was; hot required to examine the propriety of the order rejecting the applications for condonation of delay on merit but that it should dismiss the applications upon holding that the Tribunal had, in fact, no jurisdiction to entertain such applications for condonation of the delay.
7. Opposing Mr. Bhattacharya's submissions, Mr. Bhunia, who appeared in support of the revisional applications, relied upon a Single Bench decision of this Court in the case of Nowda Thana Co-operative Agricultural Marketing Society v. West Bengal Co-operative Tribunal, reported in 1979 (2) CHN page 487, wherein while interpreting section 134(2) of the 1973 Act, which is similar to section 136(2) of the 1983 Act, the learned Singh Judge held that the Tribunal under certain circumstances has jurisdiction to entertain and decide an application for condonation of delay in preferring an appeal before it. Mr. Bhunia also relied on the provisions of section 135(2) of the 1983 Act in support of his contention that the Tribunal had rightly entertained the application for condonation of delay.
8. Upon examination of the provisions of sections 135(2) and 136(2) of the 1983 Act, the learned Single Judge rejected Mr. Bhunia's submissions upon holding that the provisions of Order 41 Rule 3A of the Code of Civil Procedure did not confer power on the court to condone the delay in preferring an appeal. The learned Single Judge observed that the power to condone delay in preferring an appeal does not emanate from the provisions contained in Order 41 Rule 3A of the Code but from the provisions contained in section 5 of the Limitation Act. The learned Single Judge, therefore, disagreed with the view taken in the Nowda Thana Co-operative Agricultural Marketing Society's case (supra) that the provisions of Order 41 Rule 3A was the source of power of condonation of delay. The learned Single Judge also took a contrary view in holding that there was no inconsistency between section 135(2) and section 136(2) of the 1983 Act. The learned Judge observed that by incorporating section 136(2) in the 1983 Act, the legislative intention was clear that the Limitation Act, 1963, would not be applicable in a proceeding before the Tribunal and section 5 thereof could not, therefore, be invoked before the Tribunal.
9. In view of the difference of opinion of the two learned Single Judges, the matter has been referred to this Bench for resolving the difference.
10. Mr. Bhunia, who appeared in support of the revisional applications before the learned Single Judge, reiterated his submission that the appeal which had been preferred before the learned Tribunal against the award passed by the Assistant Registrar of Co-operative Societies, Midnapore III, at Contai, on 12 March, 1998, was accompanied by an application for condonation of delay as required under section 135(2) of the West Bengal Co-operative Societies Act, 1983. Mr. Bhunia submitted that the said application for condonation of delay had not been made under section 5 of the Limitation Act but in keeping with the provisions of Order 41 Rule 3A of the Code of Civil Procedure.
11. Mr. Bhunia urged that section 135(2) of the above Act provides that a Tribunal shall exercise all the power conferred upon an appellate court by Order 41 Civil P.C, which would include Rule 3A thereof. Mr. Bhunia urged that in view of the above the Appellate Tribunal has the power to condone delay in filing of appeals under Order 41 Rule 3A Civil P.C
12. In this regard Mr. Bhunia referred to the Bench decision of this court in the case of Sipra Dey v. Ajit Kumar Dey (AIR 1988, Calcutta, Page 287) wherein it was observed that Rule 3A had been inserted in Order 41 to provide for a procedure, so that the question of condonation of delay of a time-barred appeal is decided once for all at the initial stage and that an appeal may not drag on for a considerable time only to be dismissed at the end on the ground of limitation.
13. Mr. Bhunia urged that the intention of the legislature was clear that a Memorandum of Appeal if filed out of time would have to be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within the period of limitation. Mr. Bhunia submitted that the provisions of Rule 3A of Order 41 were independent of the provisions of section 5 of the Limitation Act and even though the Limitation Act is specifically excluded by section 136(2) of the 1983 Act, the provisions of Rule 3A of Order 41 C.P.C would apply by virtue of section 135(2) thereof. Mr. Bhunia submitted that the Bench decision of this court in Nirmal Kumar Banerjee v. Panihati Co-operative Bank Ltd. (AIR 1977, Calcutta, Page 246), on which reliance had been placed on behalf of the Opposite Parties before the learned Single Judge, was rendered prior to the amendment of the Civil Procedure Code in 1976 incorporating Rule 3A in Order 41 on and from 1 February, 1977. Mr. Bhunia also urged that the Division Bench while deciding the above case did not also have occasion to consider the effect of the proviso to Article 254(2) of the Constitution of India, as far as such amendment in the Civil Procedure Code was concerned.
14. Mr. Bhunia urged that in the aforesaid circumstances, the judgment of the Division Bench in Nirmal Kumar Banerjee's case (supra) must be held to be per incurium. Mr. Bhunia contended that the said case had been decided on the basis of the provisions of the Co-operative Societies Act, 1940, which was a pre-Constitution Act and cannot, therefore, have any application to a post-Constitution Act or statute if it violates the provisions of the Constitution. In this connection Mr. Bhunia referred to and relied on the decision of the Hon'ble Supreme Court in the case of Organon (India) Ltd. v. Collector of Excise (AIR 1994 SC Page 2489) where the aforesaid principle was sought to be explained in the context of the Opium Act, 1898.
15. Mr. Bhunia submitted that the Single Bench decision of this court in the case of Nowda Thana Co-operative Agricultural Marketing Society (supra) had been decided on 19 June, 1979, after Rule 3A of Order 41 came into effect on 1 February, 1977. Mr. Bhunia submitted that the learned Single Judge had occasion to consider the provisions of section 134(2) of the West Bengal Co-operative Societies Act, 1973 which are similar to the provisions of section 136(2) of the 1983 Act and Order 41 Rule 3A CPC in coming to a conclusion that inspite of the provisions of section 134(2) of the 1973 Act, the Tribunal would have power to condone the delay in exercise of the power conferred by section 133(2) thereof which was similar to section 135(2) of the 1983 Act. Mr Bhunia urged that the provisions of the 1973 Act in relation to Order 41 Rule 3A Civil P.C had been considered by the learned Single Judge in the context of Article 254(2) of the Constitution. Mr. Bhunia submitted that the learned Single Judge had also observed that for the ends of justice the learned Tribunals as constituted to hear appeals, must be held to have been vested with power to condone the delay in filing of appeals even though such power had been curtailed under section 134(2) of the 1973 Act.
16. Mr. Bhunia next contended that as have been held by a Division Bench of this court in Ram Prosad Ramnarain v. Bejoy Kumar Sadhukhan, reported in AIR 1966 Calcutta, Page 488, the provisions of the Limitation Act are procedural and it must, therefore, be held that the provisions of sections 135(2) and 136(2) of the West Bengal Co-operative Societies Act, 1983, are also precedural, which required a harmonious construction to be given so that one provision did not militate against the other.
17. Mr. Bhunia also urged that in the case of T.K.V.T.S.S Medical, Educational and Charitable Trust v. State of Tamil Nadu (AIR 1996 SC Page 2384) it had been laid down that clause I of Article 254 of the Constitution gives overriding effect to the provisions of law made by Parliament which is competent to enact or to amend any provision or any existing law in respect of any of the matters enumerated in List III and if a law made by legislature of the State is repugnant to the provisions of law made by Parliament, the law made by the legislature of the State is to be treated as void to the extent of repugnancy. Mr. Bhunia urged that in view of the provisions of section 135(2) of the 1983 Act empowering the Tribunal to exercise all the powers conferred upon an appellate court under Order 41 Civil P.C the said provision would prevail over the provisions of section 136(2) of the said Act which was a State enactment.
18. The next contention of Mr. Bhunia was that if the language of a statute is ambiguous, the court, as has been explained in Lata Bal Mukand v. Lajwanti, reported in AIR 1975 SC Page 1089, should prefer the interpretation which would preserve the right to appeal rather than bar such right. Mr. Bhunia lastly contended that the principle of stare decisis squarely applies to the fact of this case since the learned Single Judge himself observed that the practice prevailing in the Tribunal was in accordance with the decision in the Nowda Thana Co-operative Agricultural Marketing Society's case (supra) Mr. Bhunia submitted that the provisions of section 136(2) of the 1983 Act must be held to be invalid and were liable to be struck down as unconstitutional and ultra vires.
19. Appearing for Ram Krishna Samabaya Rrishi Uanayan Samity Ltd., Mr. K.D Mukherjee urged that the submissions made on behalf of the petitioners was fallacious as they proceeded on the basis that Order 41 Rule 3A Civil P.C was an independent source of authority which empowered the appellate forum to condone delay in filing of appeals without reference to section 5 of the Limitation Act.
20. Mr. Mukherjee submitted that the provisions of Order 41 Rule 3A Civil P.C had been considered by different High Courts which were uniformly of the view that the sole object of the said provisions was to put an end to the practice of admitting an appeal subject to a decision on the question of limitation. Mr. Mukherjee submitted that the substantial power to condone the delay in filing an appeal was derived by the appellate forum under section 5 of the Limitation Act and not under Order 41 Rule 3A Civil P.C
21. In support of his submission Mr. Mukherjee relied on the following decisions, namely, (1) R.C Chaudhury v. Prestige Finance and Unit Fund C.O Pvt. Ltd. (AIR 1996 Delhi, Page 382) (2) Nirmala Chaudhary v. Bisheshar Lal (AIR 1979 Delhi, Page 26) (3) Dilip Bhai Gajrota v. Contractor Line Gotan (AIR 1996 Rajasthan, Page 119) (4) Rajkumar Jindal v. Orissa Forest Corporation (AIR 1996 Orissa, page 10) and (5) Kandesamy v. Rethinambal, (AIR 1996 Madras, Page 252) where, inter alia, the aforesaid principle was considered and explained in the light of the facts pertaining to the particular case.
22. Mr. Mukherjee submitted that the view taken in the Nowda Thana Co-operative Agricultural Marketing Society's case (supra) was erroneous and the legal position in relation to sections 135(2) and 136(2) read with Order 41 Rule 3A Civil P.C had been correctly explained by Bhaskar Bhattacharya J. in his Lordship's order dated 15 February, 2001, in C.O Nos. 4 and 5 of 2001.
23. Mr. Mukherjee urged that even on merits the petitioners were not entitled to condonation of the delay in filing the appeals as no leave had been taken from this court when the Appeal Court allowed the Mandamus Appeal (MAT No. 1588 of 1998) which had been preferred by the respondent No. 3 society against the judgment of the Teamed Single Judge allowing the Writ Petition [W.P No. 6285(W) of 1998] filed by Egra Thana Co-operative Agricultural Marketing Society Ltd. and setting aside the Award dated 16th March, 1998.
24. Appearing for the Bank in C.O Nos. 4 and 5 of 2001, Mr. Milan Bhattacharya urged that Order 41 Rule 3A Civil P.C was procedural in nature relating to filing of appeals and the application for condonation of delay in filing the appeal to accompany the Memorandum of Appeal would have to be made under section 5 of the Limitation Act. However, by operation of section 136(2) of the 1983 Act, all the provisions of the Limitation Act had been specifically excluded from having application to appeals preferred in terms of sub-section (1) of section 136 of the former Act.
25. Mr. Bhattacharya contended that the Co-operative Tribunal having been constituted under a Special Act, the provisions of the special law would prevail over the general law in case of inconsistency.
26. In this regard, Mr. Bhattacharya referred to and relied on the decision of the Hon'ble Supreme Court in (1) Mohan Lal Tripathi v. District Magistrate, Rae Bareilly (AIR 1993 SC Page 2042) (2) Dattatraya Ganesh Kulkarni v. Appa Tukaran Mude, (1998) 8 SCC Page 717 and (3) State of M.P v. Pradeep Kumar, (2000) 7 SCC Page 372.
27. Apart from the above Mr. Bhattacharya submitted that since the Co-operative Tribunal was not a court, the provisions of the Limitation Act would have no application, besides, having been specifically excluded by the statute. Mr. Bhattacharya referred to the decision of the Hon'ble Supreme Court in Sakuru v. Tanaji (AIR 1985 SC Page 1279) and that of the Kerala High Court in Jehoy D’ Cunhe v. Subramonium (AIR 1990 Kerala Page 342) to illustrate his point. In both the cases it was held that since the forums before which the matters had been filed were not courts, the provisions of the Limitation Act would have no application in respect thereof.
A similar view was expressed by this court in Subir Mondal v. Sitanath Mukherjee (98 CWN Page 544).
28. Mr. Bhattacharya submitted that the learned Single Judge had taken an erroneous view/in dealing with the case of Nowda Thana Co-operative Agricultural Marketing Society since by operation of section 136(2) of the West Bengal Co-operative Societies Act, 1983, all the provisions of the Limitation Act have been excluded and the application contemplated under Order 41 Rule 3A Civil P.C is one under section 5 of the Limitation Act.
29. On consideration of the provisions of section 136(2) of the West Bengal Co-operative Societies Act, 1983, and the provisions of section 135(2) of the said Act read with Order 41 Rule 3A Civil P.C, we have no hesitation in accepting the view expressed by the learned Single Judge in C.O Nos. 4 and 5 of 2001 on 15 February, 2001, as against the views expressed by the other learned Single Judge in Nowda Thana Agricultural Marketing Society's case (AIR 1979 Calcutta, Page 318). We agree with the observation made by the learned Single Judge that the provisions of Order 41 Rule 3A Civil P.C is not the source of the power of the appellate court to condone the delay in preferring an appeal and that the power to condone delay in preferring an appeal does not emanate from the provisions of Order 41 Rule 3A of the Code but from the provisions of section 5 of the Limitation Act.
30. The provisions of section 135(2) of the 1983 Act confers on the Tribunal all the powers of the appellate court as provided in Order 41 of the Code, but in view of the provisions of section 136(2) of the 1983 Act it appears to have been the intention of the legislature that the provisions of the Limitation Act, 1963, would not apply to a proceeding before the learned Tribunal.
31. We are unable to accept Mr. Bhunia's submission that the provisions of Rule 3A of Order 41 are independent of the provisions of section 5 of the Limitation Act and that even though the Limitation Act is specifically excluded by section 136(2) of the 1983 Act, the Tribunal would be entitled to condone any delay in filing an appeal under the independent provisions of Order 41 Rule 3A Civil P.C Mr. Bhunia's submissions regarding the decision in Nirmal Kumar Banerjee's case (supra) having been rendered prior to the incorporation of Rule 3A in Order 41, Civil P.C in 1977, is of little relevance since, in our view, the power to condone delay indicated in Order 41 Rule 3A of the Code is dependent on an application being made under section 5 of the Limitation Act.
32. Consequently, since the provisions of section 5 of the Limitation Act cannot be invoked in respect of a proceeding before the learned Tribunal, notwithstanding the provisions of section 135(2) of the 1983 Act, the Tribunal has no jurisdiction to condone delay in the filing of an appeal.
33. The reference is answered accordingly and it is declared that the decision in the case of Nowda Thana Co-operative Agricultural Marketing Society, (AIR 1979 Calcutta page 318) is not good law.
34. All the three application are, therefore, dismissed.
35. There will, however, be no order as to costs.
36. If an urgent xerox certified copy of this judgment is applied for, the same may be provided expeditiously.
Alok Kumar Basu, J.:— I agree.
Appeals dismissed.
R.R