TaxTMI 
TaxTMI 
2005 (8) TMI 400
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....operative Societies Act, 2002 (hereinafter referred to as the 'Act') for recovery of sum of over Rs. 3.61 crores from the respondents and the applicant. During the pendency of the said reference proceed ings, the petitioners took out application before the Arbitrator purported to be under section 96 of the Act, for attachment of certain properties belonging to the applicant, before Award. It is common ground that the property sought to be attached in terms of the said Application taken out by the petitioners, is not mortgaged by the respondents or the Applicant in respect of the claim under reference for recovery of money under section 84 of the Act. Nevertheless, the Arbitrator allowed the application preferred by the petitioners and passe....
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....more or less similar to the language of Order XXXVIII rule 5 of the Code of Civil Procedure. On this basis, it is argued that the legal position as to the power of the Civil Court to pass an order of attachment in respect of the property other than the mortgage property before decree is no more res integra. To buttress this submission reliance is placed on two decisions of our High Court in the case of Marine Container Services (I) (P.) Ltd. v. Rajesh Dhirajlal Vora [2001] (4) Mh.L.J. 353 and another decision in the case of Jugalkishore Rampratapji Rathi v. Brijmohan [1993] (1) Mh.L.J. 148. Besides provisions of Order XXXVIII rule 5 and section 94 of the Code of Civil Procedure, counsel for the peti tioners has pressed into service section ....
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....gistrar or the Arbitrator or any person authorised by him in writing in this behalf shall be deemed, when exercising any powers under this Act for the recovery of any amount by the attachment and sale or by sale without attachment of any property, or when passing any orders on any application made to him for such recovery or for taking a step-in-aid of such recovery, to be a civil court for the purposes of Article 136 of the Schedule to the Limitation Act, 1963 (36 of 1963)." [Emphasis supplied] Order XXXVIII rule 5 of Code of Civil Procedure reads thus : "5. Where defendant may be called upon to furnish security for production of property.-(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defe....
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.... (b)direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c )grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d)appoint a Receiver of any property and enforce the performance of his duties by attaching and selling his property; (e )make such other interlocutory orders as may appear to the Court to be just and convenient." 7. On plain language of section 96 of the Act, the argument canvassed on behalf of the petitioners, that the same is more or less similar to provisions of Order XXXVIII rule 5 of the Code ....
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....herent powers of the Court. Per contra, even on fair and conjoint reading of the relevant provisions of the Act of 2002, in particular, sections 96 and 97 thereof, there is nothing in the Act to even remotely suggest that the Parliament had intended to vest all those powers available with the Civil Court to be exercised by the Arbitrator in proceedings under section 84 of the Act. It cannot be doubted that proceedings under section 84 of the Act are in the nature of arbitration proceedings. Unless an express provision authorising the Arbitrator to pass orders in respect of matters or properties which are outside the scope of the arbitration proceedings was provided for, such power cannot be assumed in favour of the Arbitrator even on libera....
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....behalf be deemed to be a Civil Court for the purposes of Article 136 of the Schedule to the Limitation Act, 1963. The legal fiction is for this limited purpose. No more and no less. In other words, section 97 of the Act of 2002 cannot be construed to mean vesting of the powers similar to that of the Civil Court in the Arbitrator, who is to exercise powers under the Act of 2002 albeit for the recovery of any amount by attachment or by sale without attachment of any property, etc. Similarly, the provision such as section 96 of the Act also does not empower the Arbitrator to exercise similar powers as that of the Civil Court. Sub-section (2) only provides that the attachment order passed under sub-section (1) by the Arbitrator shall be execute....