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CONTAI CO-OPERATIVE BANK LTD. & ANOTHER V/S UNION OF INDIA & OTHERS, decided on Tuesday, July 19, 2016.
[ In the High Court of Calcutta, W.P. No. 19263, 19264 (W) of 2006. ] 19/07/2016
Judge(s) : DEBANGSU BASAK
Advocate(s) : Asim Kumar Roy. R7, Milan Ch. Bhattacharya, Sr. , Daisy Basu.
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    Debangsu Basak J.1. Two writ petitions have been taken up for hearing analogously as they involve the same parties and similar issues. In any event the learned Advocates appearing of the parties have given their consent for hearing of the two writ petitions analogously. Both the writ petitions have been filed by a co-operative bank. W.P. No. 19263 (W) of 2006 being filed first in point of time is referred to as the first writ petition while W.P. No. 19264 (W) of 2006 being second in point of time is referred to as the second writ petition.The challenge in the first writ petition is an order passed by the appellate Tribunal dated July 25 2006 in Appeal Case No. 56 of 1998 by which it has held that a co-operative bank is required to approach the Debts Recovery Tribunal established under the Recovery of Debts Due to Banks and Financial Institutions Act 1993 for realization of claims in excess of Rs.10 Lakhs against a borrower.The challenge in the second writ petition is the order passed by the appellate Tribunal in Appeal Case No. 33 of 1999 dated July 21 2006 by which the appellate Tribunal has allowed the counterclaim of the borrower made against the bank.Learned Advocate for the petitioner has submitted that the petitioner carries on banking business and is incorporated under the provisions of the West Bengal Co-operative Societies Act 1983. The private respondent had borrowed money from the bank. The private respondent had failed to repay the bank and therefore the bank had taken steps for the purpose of realization of its claim against the private respondent. The bank had initiated a dispute case before the arbitrator under the provisions of the West Bengal Co-operative Societies Act 1983. According to the learned Advocate for the bank the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act 1993 are not applicable for recovery of amount due to a co-operative bank. In support of such contention he has relied upon 2007 Volume6 Supreme Court Cases page 236 (Greater Bombay Co-operative Bank Ltd. v. M/s. United Yarn Tex. Pvt. Ltd. & Ors.). He has submitted that the arbitrator had correctly passed a money award in favour of the bank in the dispute case. The private respondent had filed a written statement which included a counterclaim. The private respondent did not press the counterclaim at the hearing of the dispute case. The private respondent had preferred an appeal to the appellate authority under the provisions of the Act of 1983. In the appeal the private respondent did not press the issue of the counterclaim. On the contrary the private respondent had limited the appeal to the grounds of lack of jurisdiction of the arbitrator. The appellate Tribunal had found the contention of the private respondent that the bank has to proceed under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act 1993 valid. In view of the ratio rendered in Greater Bombay Co-operative Bank Ltd. (supra) the decision of the appellate Tribunal is incorrect. Consequently such decision has to be set aside. So far as the second writ petition is concerned learned Advocate for the bank has submitted that the appellate Tribunal had erred in allowing the counterclaim.He has submitted that since the private respondent had raised the counterclaim in the first dispute case and did not press the same the private respondent is precluded from raising the same issues in the second dispute case. The counterclaim is barred by the principles of res judicata. The Tribunal had erred in not taking such fact into consideration. The Tribunal had erred in allowing the counterclaim. The order of the Tribunal ought to be set aside. In support of the contention that the claim of the private respondent in the second dispute case is visited by the principles of res judicata learned Advocate for the petitioner has relied upon 2014 Volume 6 Supreme Court Cases page 424 (Coffee Board v. M/s. Ramesh Exports Pvt. Ltd.) 2011 Volume 3 Supreme Court Cases page 408 (M. Nagabhushana v. State of Karnataka & Ors.) 2004 Volume 3 Calcutta High Court Notes page 305 (Kalpana Das v. Contai Co-Operative Bank Ltd.) and Section 40 of the Indian Evidence Act.Learned Senior Advocate for the private respondent has submitted that the claim of the bank was barred by limitation at the time of the bank filing the first dispute case. He has referred to Section 95 of the West Bengal Co-operative Societies Act 1983 in support of his contention and the pleadings of the statement of claim in the first dispute case. He has submitted that the second dispute case is not visited by the principles of res judicata inasmuch as the private respondent did not raise the counterclaim in the first dispute case and that in any event the arbitrator did not decide the issue of the counterclaim in the first dispute case. Since the issues relating to counterclaim were not decided in the first proceedings the question of applicability of the principles of res judicata does not arise. In support of such contention he has relied upon 1999 Volume 4 Supreme Court Case page 149 (Ferro Alloys Corporation Ltd. & Anr. v. Union of India & Ors.) 2010 Volume 9 Supreme Court Cases page 145 (Haryana State Electricity Board v. Hanuman Rice Mills Dhanauri & Ors.) and 2007 Volume 8 Supreme Court Cases page 329 (Saroja v. Chinnusamy & Anr.).Learned Senior Advocate for the private respondent has submitted that Section 95 of the Act of 1983 does not permit a counterclaim to be raised. He referred to the various Rules framed under the Act of 1983 particularly Rule 171 thereof and has submitted that the Rule also does not contemplate a counterclaim to be made by the private respondent in a dispute case. He has submitted that an arbitrator acting under the provisions of the Act of 1983 is not empowered to decide a counterclaim. Therefore the only recourse available to the private respondent is to initiate a second dispute case. The private respondent had done so. The private respondent has been awarded its claim on appeal. There is no infirmity in the order passed by the Tribunal in the second dispute case.Learned Senior Advocate for the private respondent has submitted that the Code of Civil Procedure 1908 is not attracted to an arbitration proceedings under the Act of 1983. Since the Code of Civil Procedure is not attracted therefore the question of a counterclaim being allowed to be raised and adjudicated in a dispute case does not arise. Moreover the provisions of Section 11 of the Code of Civil Procedure 1908 that is res judicata does not apply.The contentions of the parties have raised the following issues:-(i) Whether a bank governed by the Act of 1983 can approach the Debts Recovery Tribunal established under the provisions of Recovery of Debts Due to Banks and Financial Institutions Act 1993 for realization of claim in excess of Rs.10 00 000/- ?(ii) Was the claim of the bank barred by the laws of limitation at the time of filing of the dispute case ?(iii) Whether the provisions of the Code of Civil Procedure 1908 are attracted to an arbitration under the Act of 1983 ?(iv) Whether the provisions of Section 11 of the Code of Civil Procedure 1908 are applicable to a proceedings under the Act of 1983 ? If so is the second dispute case barred by the principles of res judicata ?(v) Whether a respondent in a dispute case under the provisions of the Act of 1983 is entitled to raise a counterclaim and if so whether the arbitrator has the jurisdiction to decide such counterclaim ?In Greater Bombay Co-operative Bank Ltd. (supra) the Supreme Court has held that co-operative banks transacting the business of banking do not fall within the meaning of banking company as defined in Section 5(c) of the Banking Regulation Act 1949. Therefore the provisions of recovery of debts under the Recovery of Debts Due to Banks and Financial Institutions Act 1993 by invoking the doctrine of incorporation are not applicable to the recovery of dues by the cooperative from their members. A proceedings of a co-operative bank to recover its dues from its members is in excess of Rs.10 Lakhs are maintainable under the provisions of the Act of 1983 and that a cooperative bank need not approach the Debts Recovery Tribunal for such purpose. The first issue is answered accordingly.The issue of limitation centers around Section 95 of the Act of 1983. Section 95 of the Act of 1983 is as follows:-“95. Disputes to be referred to Registrar. –(1)Any dispute concerning the business of a co-operative society capable of being the subject of civil litigation or any dispute relating to the affairs of a co-operative society (other than a dispute relating to the disciplinary action taken by a cooperative society against the paid employees of the cooperative society or the terms and conditions of service of the paid employees of the co-operative society) shall be referred in the prescribed manner to the Registrar if the parties thereto are among the following :-(a)a co-operative society or its board or an officer (past or present) agent employee or liquidator of a cooperative society; or(b)a member or a past member or a person claiming through a member or a past member or on behalf of a deceased member of a co-operative society or a financing bank of a co-operative society; or (c) a surety of a member or past member or deceased member of a co-operative society whether such surety is or is not a member of the co-operative society; or (d)any other co-operative society or any person including any financing bank having transaction with a cooperative society or any liquidator of a co-operative society.(2)Any Dispute mentioned in sub-section (1) other than a dispute relating to recovery of money shall be referred to the Registrar within two months from the date on which the cause of action arises.(3)Notwithstanding anything contained in this section or in any other law for the time being in force the Registrar may admit any dispute after the expiry of the period of limitation provided in sub-section (2) if the applicant satisfies the Registrar that he had sufficient cause for not referring the dispute within such period of limitation and the dispute so admitted shall not be barred by limitation.Section 95 of the Act of 1983 permits disputes concerning the management or business or affairs of a co-operative society other than the dispute relating to the election of a co-operative society and the disciplinary action taken by the co-operative against its paid employee to be filed before the Registrar for settlement of such disputes. Section (2) of Section 95 of the Act of 1983 prescribes a period of limitation for entertaining a dispute mentioned in Section (1) other than a dispute relating to recovery of money. Section (3) of Section 95 prescribes that notwithstanding anything contained in Section 95 or any other law the Registrar has the authority to condone the delay in filing the application.In the present case the bank has sought to recover money from the private respondent. The period of limitation prescribed under Section 95(2) is not applicable as the dispute referred to the Registrar by the bank is one of recovery of money and such a type of dispute is exempted from the purview of limitation prescribed under Section 95(2). Even otherwise the Registrar has the authority to condone the delay in filing the dispute case.Learned Senior Advocate for the private respondent has neither argued nor established that the claim of the bank was barred by the limitation under the Limitation Act 1963. In such circumstances the second issue is answered in the negative and in favour of the petitioner. The Act of 1983 provides for statutory arbitration to resolve the disputes specified in Section 95 thereof. The manner and method of arbitration is also specified in the Act of 1983. The Act of 1983 is silent as to the applicability of the provisions of the Code of Civil Procedure 1908. The Code of Civil Procedure 1908 applies to a proceedings before a regular Civil Court. It is trite law that where a dispute that is an assertion of a right by a party and the denial of the same by another and such dispute is referred to an adjudicating authority for decision then there is an exercise of judicial power. If such adjudicating authority does not have the trappings of a Court it is called a Tribunal. A Tribunal brings into its sweep an arbitrator before whom a dispute is referred under a statute. Such a Tribunal gets to regulate its own procedure. Although not constrained by the procedural laws however it must follow the principles thereof. The Code of Civil Procedure 1908 does not apply with all its rigors and force to a proceedings of arbitration under the Act of 1983. However the principles of the Code of Civil Procedure 1908 does apply. In the event a pleading is required to be amended in an arbitration proceeding recourse to the principles of amendment as enshrined in the Code of Civil Procedure 1908 are required to be followed. So also in case of death of a party the recording of such death and the amendment to the pleadings consequential thereto are followed in terms of the principles of the Code of Civil Procedure 1908. The third issue therefore is answered in the affirmative.For the sake of convenience the fourth and the firth issues are taken up together for consideration.Section 11 of the Code of Civil Procedure 1908 deals with res judicata. It has been noted that the principles of res judicata as recognized under Section 11 of the Code of Civil Procedure 1908 are not exhaustive. The principles of res judicata are founded upon the principles that no person should be vexed twice over the same cause and that there must be a finality to a litigation. Broadly speaking for the principles of res judicata to be attracted there must be two proceedings between the same parties with identical subject matter and that the subject matter must be decided finally in one of the proceedings by a forum competent to decide such matter.In the present case the parties in the two dispute cases are same. The subject matter of the two dispute cases is also same notwithstanding the contention of the learned Senior Advocate for the private respondent that they are not the same. The claim of the bank emanates out of a banking transaction. The claim of the private respondent emanates out of the same banking transaction. The bank seeks to recover money lent and advanced on the basis of a banking transaction. The bank had initiated a dispute case. Such dispute case was registered as Dispute Case No. 40 of 1992-1993. In such dispute case the private respondent had filed a written statement. In the written statement the private respondent had made a counterclaim. Relevant portion of the written statement of the defendant is as follows:-“12. Despite several requests to the Plaintiff bank to disburse the loan as per said vetted scheme the Plaintiff willfully neglected violated disobeyed all the Govt. orders guidelines of Reserve Bank of India etc. by misusing the power rather by colourable exercise of power.Further the defendant states that though the Defendant submitted this vetted scheme to the Plaintiff on 22nd August 1986 but the Plaintiff did not sanction and release the 70% promised loan as per said scheme even when the Unit is ready to start functioning as a result the defendant has suffered a loss and damages to the tune of Rs.35 00 000/- Thirty Five Lakh only. It is important to mention here that after lapse of more than seven years the value of raw materials fuel and man power everything have been rised at least three times in comparison to the year 1986-87 when the scheme was vetted and approved. By the reason of the premises the said scheme is required to be revived recording to present market price to make the Unit viable after proper finance by the Plaintiff.The facts and circumstances stated hereinabove the defendant prays :-i) An order be passed to dismiss the dispute case No. 40 is of 1992-1993 and exemption of interest over the disbursed loan (Portion of the loan of the vetted scheme) till the entire disbursement of loan as per said vetted scheme by the plaintiff to the Defendant.ii) An order be passed directing the Plaintiff to revive the defendant’s said vetted scheme dated 22nd August 1986 according to the present market price and to sanction and release the 70% loan to the Defendant as per said revive scheme.iii) Punishment of the Officers and employees of the Plaintiff for their wilful negligence and violation of R.B.I. guidelines etc.iv) Loss and damages assessed to the tune of Rs.62 00 000/- and loss of profit as will be found and entitled by the Defendant.v) Cost of the proceedings to be paid by the Plaintiff to the Defendant.vi) Further order/orders as your honour may deem fit and proper as per law of equity in favour of the Defendant.”The private respondent did not press the counterclaim at the hearing. An award dated October 26 1996 was passed in the dispute case bearing no. 40 of 1992-1993 in favour of the bank and against the private respondent. The private respondent had preferred an appeal therefrom. In the appeal the private respondent did not press its counterclaim. The private respondent had pressed the points of lack of jurisdiction at the hearing of the appeal. The appellate Tribunal had found in favour of the private respondent on the point of jurisdiction and had held that the proceedings ought to be taken up by the Debts Recovery Tribunal. Such a finding is no longer good in view of Greater Bombay Co-operative Bank Ltd. (supra). The private respondent having raised its counterclaim and having not pressed the issue in the hearing as also in the appeal is visited by constructive res judicata and is precluded from raising the same claim in a subsequent proceedings. Constructive res judicata is recognized in Explanation IV of Section 11 of the Code of Civil Procedure 1908. Explanation IV of Section 11 of the Code of Civil Procedure 1908 is as follows:-“Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”Of the authorities cited at the bar four have dealt with the point of res judicata. In Ferro Alloys Corporation Ltd. & Anr. (supra) the Supreme Court has held that the principles of constructive res judicata can be invoked even inter se between the respondents. However it has to be seen whether the point might and ought to have been made the ground of defence or attack in the former proceedings for such principles to apply. If a plea is not required to be raised in the earlier proceedings such plea based on independent causes of action cannot be said to be barred constructive res judicata.In Saroja (supra) the Supreme Court has held as follows:-We have carefully examined the provisions under Section 11 of the CPC. After a careful reading of the provisions under Section 11 of the CPC it is discernible that in order to constitute res judicata the following conditions must be satisfied -(i) There must be two suits - one former suit and the other subsequent suit;(ii) The Court which decided the former suit must be competent to try the subsequent suit;(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits.(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit;(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;(vi) The parties in both the suits must have litigated under the same title.We shall come back to these conditions later.”In Haryana State Electricity Board (supra) the Supreme Court on facts found that the two suits related to different matters and therefore the second suit was not barred by the principles of res judicata.In M. Nagabhushana (supra) the Supreme Court has held as follows:-“14. The principles of Res Judicata are of universal application as it is based on two age old principles namely `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.”Although an issue needs to be raised and decided in the former suit Explanation IV of Section 11 of the Code of Civil Procedure 1908 recognizes that issues which could have been raised in the earlier suit and not raised will be treated as barred by such principles. In the present case the private respondent had raised the issue of counterclaim in its written statement filed in the first dispute case. It did not press the same upto the appeal stage. An issue which could have been made the subject matter of attack or defence in the former suit and not raised is considered to be barred by the principles of constructive res judicata. Therefore the private respondent is precluded from raising the same issue in the second dispute case. The claim made in the second dispute case by the private respondent being the same as that of the counterclaim in the first dispute case is therefore barred by the principles of res judicata. The fourth issue is therefore answered in the affirmative in favour of the petitioner and against the private respondent.The Act of 1983 does not preclude a party respondent in a dispute case to raise a counterclaim.Section 95 of the Act of 1983 allows a dispute in the nature specified therein to be referred to arbitration. Section 95 of the Act of 1983 specifies the disputes which can be referred to arbitration. Section 2(20) of the Act of 1983 defines a disputes to mean any matter capable of being the subject of civil litigation and includes a claim in respect of any sum payable to or by a co-operative society. Section 95 read with Section 2(20) of the Act of 1983 allows a reference for a recovery of money by or against a cooperative society to be made to arbitration. Once such a reference is made it would be within the competence of the arbitrator to adjudicate upon a counterclaim in view of the definition of dispute under Section 2(20) of the Act of 1983. A party against whom a claim has been made would be obliged to make a counterclaim if the facts allow it to do so. Once a dispute under Section 95 is referred the respondent in such a dispute can have a defence of set off if the fact permits it to do so. A respondent therefore could also make a counterclaim again if the fact permits it to do so as a counterclaim may be an extension of set off which the respondent is pleading. No law has been placed to suggest that a respondent in a dispute case under the Act of 1983 is not entitled to raise a counterclaim. An arbitrator acting under the 1983 is required to pronounce upon a dispute referred to it. A dispute may involve a claim and a defence of counterclaim. The arbitrator would then have two competing claims to adjudicate. An arbitrator may say that the defence of counterclaim cannot be adjudicated in the reference before it as the same is embarrassing the trial. It has not done so in the present case. The private respondent at the trial of the first dispute case where it had raised the counterclaim did not contend that the counterclaim ought to be adjudicated by a separate proceedings as it was more convenient to do so. A respondent in a dispute case under the Act of 1983 is entitled to raise a counterclaim. The arbitrator has the jurisdiction to decide the same. The fifth issue is therefore answered accordingly.Coffee Board (supra) relates to a situation under Order II Rule 2 of the Code of Civil Procedure 1908. The same is not attracted in the facts of this case.Kalpana Das (supra) also has no manner of application in the facts of this case.In view of the discussions above W.P. No. 19263 (W) of 2006 is allowed. The order of the appellate Tribunal dated July 25 2006 passed in Appeal Case No. 56 of 1998 is set aside. The order passed by the appellate authority in Appeal Case No. 33 of 1999 dated July 21 2006 is set aside. The dispute case initiated by the private respondent is held to be barred by the principles of res judicata.W.P. No. 19263 (W) of 2006 and W.P. No. 19264 (W) of 2006 are disposed of accordingly. No order as to costs.Urgent certified website copy of this order if applied for be given to the parties on priority basis.