enquiry after retirment
Querist :
Anonymous
(Querist) 09 July 2011
This query is : Resolved
sir,
in continuation to my querry, please give me detail of ruling of P.kumar v. state of punjab 1982(1) slr 241
prabhakar singh
(Expert) 10 July 2011
READ IT TO FIND IF HELP FULL TO YOUNotification of the Central Government dated 28.01.2003 IS DISCUSSED HERE::....
The Nakodar Hindu Urban ... vs Deputy Registrar, Cooperative ... on 19 November, 2009
CWP No.21328 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C. W. P. No. 21328 of 2008
Date of Decision: 19 - 11 - 2009
The Nakodar Hindu Urban Cooperative ....Petitioner Bank Limited, Nakodar
v.
Deputy Registrar, Cooperative Societies, Jalandhar ....Respondents and another
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA ***
Present: Ms.Jyoti Sareen, Advocate
for the petitioner.
Ms.Sushma Chopra, Advocate
for respondent No.2.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Counsel for the parties are in agreement that four writ petitions bearing Civil Writ Petition Nos.21328, 21556, 21572 and 21330 of 2008 can be decided by one common order, as on facts and law these writ petitions are similar, except that respondent No.2 in all the four writ petitions is different.
In these writ petitions, petitioner-Bank has approached for setting aside impugned order dated 5.2.2008, Annexure P5 passed by the Deputy Registrar, Cooperative Societies, Jalandhar. Before the controversy is determined, it is essential to advert to the facts of the case. CWP No.21328 of 2008 [2] Counsel for the parties are further in agreement that for adjudication of these writ petitions, facts can be gathered from Civil Writ Petition No.21328 of 2008. Respondent No.2 availed cash credit limit of Rs.One lac in the year 1994 from the petitioner-Bank by way of equitable mortgage. On default committed in re-payment of the loan, loan account of respondent No.2 was declared as non performing asset. Case of the petitioner-Bank is that under Section 2(i)(c)(v) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as, `SRFAESI Act') the Cooperative Bank is competent to issue demand notice and repossess the property. In consonance with the provisions of the SRFAESI Act, on 20.4.2007 demand notice under Section 13(2) was issued to respondent No.2 and his two brothers. Copy of the demand notice is Annexure P1. The demand notice state that on 31.1.2007 the amount outstanding against respondent No.2 is Rs. 3,89,898/-. Thereafter possession notice Annexure P2 was issued and inventory and Panchnama were also prepared. The copy of possession notice was published in a newspaper `Ekta Lehar'. On 30.12.2007, Annexure P4, possession-cum-sale notice (by Public Tender) was issued. Aggrieved respondent No.2 approached the Deputy Registrar, Cooperative Societies by filing a petition under Sections 55 and 56 of the Punjab Co- operative Societies Act, 1961 (hereinafter to be referred as, `the Act') read with Rule 51 of the Punjab Co-operative Societies Rules, 1963 for setting aside the claim of petitioner-Bank to the tune of Rs. 3,89,898/-. Ms.Jyoti Sareen appearing for the petitioner-Bank has stated that Deputy Registrar, Cooperative Societies, Jalandhar has no jurisdiction to entertain the dispute under the SRFAESI Act. Respondent No.2 if CWP No.21328 of 2008 [3] aggrieved could only approach the Debt Recovery Tribunal under Section 17(1) of SRFAESI Act by filing an appeal. It has been stated that by issuance of notification on 28.1.2003 petitioner-Co-operative Bank was competent to invoke SRFAESI Act as under Section 2(i)(c)(v) of the SRFAESI Act, the Bank which can invoke SRFAESI Act is the one which the Central Government by notification may specify. She state that a notification was issued on 28.1.2003 and the Central Government specified the Co-operative Bank as the one Bank which is entitled to act under SRFAESI Act.
This matter now has been concluded by the judgment of Hon'ble Apex Court in Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd. and others, (2007)6 SCC 236. This Court is of the view that once the Bank has opted to proceed against the defaulter under the SRFAESI Act, the defaulter can only avail remedy which is provided under the SRFAESI Act and cannot approach any other authority which is not recognised under the SRFAESI Act. Para 41 of Greater Bombay Coop. Bank Ltd.'s case (supra) read as under:-
"41. Parliament had enacted the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("the Securitisation Act") which shall be deemed to have come into force on 21-6-2002. In Section 2(d) of the Securitisation Act same meaning is given to the words "banking company" as is assigned to it in clause (e) of Section 5 of the BR Act. Again the definition of "banking company" was lifted from the BR Act but while defining "bank", Parliament gave five meanings to it under Section 2(c) CWP No.21328 of 2008 [4] and one of which is "banking company". The Central Government is authorised by Section 2(c)(v) of the Act to specify and other bank for the purpose of the Act. In exercise of this power, the Central Government by notification dated 28-1-2003, has specified "cooperative bank" as defined in Section 5(cci) of the BR Act as a "bank" by lifting the definition of "cooperative bank" and "primary cooperative bank" respectively from Section 56, clauses 5(cci) and (ccv) of Part V. Parliament has thus consistently made the meaning of "banking company" clear beyond doubt to mean "a company engaged in banking, and not a cooperative society engaged in banking" and in Act 23 of 1965, while amending the BR Act, it did not change the definition in Section 5(c) or even in Section 5(d) to include cooperative banks; on the other hand, it added a separate definition of "cooperative bank" in Section 5(cci) and "primary cooperative bank" in Section 5(ccv) of Section 56 of Part V of the BR Act. Parliament while enacting the Securitisation Act created a residuary power in Section 2(c)(v) to specify any other bank as a bank for the purpose of that Act and in fact did specify "cooperative banks" by notification dated 28-1-2003."
Counsel has further relied upon a Single Bench judgment of Kerala High Court in Varghese v. Kerala State Co-operative Bank Ltd., III(2008) Banking Cases 626 wherein the Court placing reliance on Greater Bombay Coop. Bank Ltd.'s case (supra) in para 13 held as under:- "13. As a consequence, in view of the notification issued CWP No.21328 of 2008 [5] by the Central Government on 28.1.2003 (Ext.P6 in W.P.(C) 31919/2007), the provisions of the SRFAESI Act are available to those institutions, namely, the Kerala State Co-operative Bank Ltd., the District Co-operative Banks and the Urban Co- operative Banks, to be invoked as enjoined by Section 13 of that Act."
Ms.Sushma Chopra appearing for respondent No.2 has stated that under Section 55 of the Act, respondent No.2 is entitled to refer the dispute for arbitration and accordingly respondent No.2 had approached the Deputy Registrar Cooperative Societies. She has placed reliance upon Section 82 of the Act to say that Punjab Co-operative Societies Act, 1961 bars jurisdiction of any other Court and if any dispute is raised under Section 55 and is referred to the Registrar, then no civil or revenue Court can entertain the dispute. To controvert this, Ms.Jyoti Sareen has cited para 41 of Greater Bombay Coop. Bank Ltd.'s case (supra) and has stated that it was concluded by the Hon'ble Apex Court that Co-operative Banks can invoke the provisions of SRFAESI Act.
Since the matter has been concluded up to the Hon'ble Apex Court, there is no other option but to allow these writ petitions and hold that Deputy Registrar, Cooperative Societies had no jurisdiction to entertain the dispute where the Bank had invoked the provisions of SRFAESI Act. Accordingly, the writ petitions are allowed and the impugned order are quashed.
( KANWALJIT SINGH AHLUWALIA )
November 19, 2009. JUDGE
RC
