TaxTMI 
TaxTMI 
2016 (9) TMI 1612
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....ed by mortgaging the western part of the scheduled property admeasuring 8000 sq. mts. The principal borrower failed to repay the loan installments. That being so, recovery proceedings were initiated Under Sections 74 and 76 of the said Act by the Bank against Respondent No. 3 and two sureties of the said loan. The Assistant Registrar of Cooperative Societies, by an Award dated 5.10.2007, noticed that despite being duly served summons by Registered post A.D., all the three opponents remained absent. As a result, an ex-parte award was passed holding all the three opponents jointly and severally liable to pay the loan dues amounting to Rs. 55,04,583/-. It may be mentioned that interest was payable at 21% compounded under the said deed of mortgage dated 2.12.1997. 3. A demand notice dated 12.6.2001 was then issued by the Bank under Rule 22 of the Multi State Co-operative Society Rules, 1985 against all the three said persons for a principal amount of Rs. 60,59,646/- together with further interest at 19% per annum from 1.4.2001 till the date of payment. 4. In spite of receiving the said notice, the defaulters failed to pay any amount towards bank dues, and the bank then referred t....
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.... award in an arbitration case, which is executable only under the Arbitration and Conciliation Act, 1996 [hereinafter referred to as "the 1996 Act"], and this being the case, the auction proceedings were set aside by the High Court stating that the award dated 5.10.2000 would be liable to be executed only in the manner provided by the 1996 Act. It is the correctness of this judgment that has to be inquired into in the present appeal. 8. Learned Counsel for the Appellants has placed the relevant provisions of both the 1984 Act and 2002 Act, and has relied in particular on Section 126(6) of the 2002 Act to contend that all legal proceedings that had been initiated under the 1984 Act would continue under that Act. This being the case, it is clear that as execution proceedings were initiated prior to 19th August, 2002, which is the date of coming into force of the 2002 Act, the said proceedings would be saved despite repeal of the 1984 Act by the 2002 Act. 9. On the other hand, learned Counsel appearing on behalf of the Respondent, argued that, under the 2002 Act, the 1996 Act alone would get attracted, and that, therefore, the High Court judgment was correct. Learned Counsel fur....
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....tution, management or business of a multi-State co-operative society, namely: (a) a claim by the multi-State co-operative society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not; (b) a claim by a surety against the principal debtor where the multi-State co-operative society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not; (3) If any question arises whether a dispute referred to the Central Registrar is or is not a dispute touching the constitution, management or business of a multi-State co-operative society, the decision thereon of the Central Registrar shall be final and shall not be called in question in any court. 76. Settlement of disputes.-(1) The Central Registrar may, on receipt of the reference of dispute Under Section 74,- (a) elect to decide the dispute himself, or (b) transfer it for disposal to any other person who has been invested by the Centr....
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....(a) among members, past members and persons claiming through members, past members and deceased members, or (b) between the member, past member and persons claiming through a member, past member or deceased member and the multi-State co-operative society, its board or any officer, agent or employee of the multi-State co-operative society or liquidator, past or present, or (c) between the multi-State co-operative society or its board and any past board, any officer, agent or employee, or any past officer, past agent or past employee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the multi-State co-operative society, or (d) between the multi-State co-operative and any other multi-State co-operative society, between a multi-State co-operative society and liquidator of another multi-State co-operative society and the liquidator of another multi-State co-operative society. Such dispute shall be referred to arbitration. (2) For the purposes of Sub-section (1), the following shall be deemed to be disputes touching the constitution, management or business of a multi-State co-operative society, nam....
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....ny application for the recovery of any sum shall be made in such manner- (i) To the Collector and shall be accompanied by a certificate signed by the Central Registrar or by any person authorized by him in writing in this behalf; (ii) Within twelve years from the date fixed in the decision or order and if no such date is fixed, from the date of decision or order, as the case may be; or (c) be executed by the Central Registrar or any person authorized by him in writing in this behalf, by attachment and sale or sale without attachment of any property of the person or a multi-State co-operative society against whom the decision or order has been made. 126. Repeal and saving. (1) The Multi-State Co-operative Societies Act, 1984 (51 of 1984) is hereby repealed. (2) Without prejudice to the provisions contained in the General Clauses Act, 1897 (10 of 1897) with respect to repeals, any notification, rule, order, requirement, registration, certificate, notice, decision, direction, approval, authorisation, consent, application, request or thing made, issued, given or done under the Multi-State Co-operative Societies Act, 1984 (51 of 1984) shall, ....
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.... with Sub-clause (c), in particular, inasmuch, as on the facts of the present case, the execution application was made to attach and sell the property of the persons against whom the said order has been made. 12. The scheme of the 2002 Act which replaces the 1984 Act is a little different. Section 84 of the 2002 Act corresponds to Section 74 and 76 of the 1984 Act. With this difference-that disputes that have been referred to arbitration are now to be settled or decided by the Arbitrator to be appointed by the Central Registrar, and the provisions, therefore, of the 1996 Arbitration and Conciliation Act shall apply to such arbitration as if the proceedings for arbitration were referred for settlement or decision under the provisions of the said Act. 13. Thus it can be seen that Section 84(4) and (5) of the new Act provide for a different scheme. Equally, Section 94 which provides for execution of certain decisions and orders made under the 2002 Act, mentions various Sections, but Section 84 is conspicuous by its absence. This is obviously for the reason that the entire proceedings have now to be conducted under the 1996 Act, including execution of the arbitration Award made u....
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....Federal Court decision, and further went on to hold that Section 5 would include execution petitions that were filed to execute decrees under the Code of Civil Procedure. 19. It is thus clear that the proceeding in execution initiated Under Section 85(c) of 1984 Act and pending before the authorities under the said Act prior to 19th August, 2002, would continue unhindered by the repeal of the 1984 Act by the 2002 Act. This being the case, it is clear that the judgment under appeal is incorrect, and would have to be set aside. 20. In the affidavit in reply filed by the bank to the Writ Petition, the bank states that it has recovered the entire loan due together with interest amounting to Rs. 85,15,311.75 as against Rs. 86 lakhs received in the auction proceedings, and admits that the balance amount of Rs. 74,688.25 over and above the loan dues are payable to the borrower. This being the case, and in order to do complete justice between the parties, it is ordered that the amount of Rs. 74,688.25, together with interest at the rate of 19 per cent compounded per annum with effect from 1st April, 2007, be paid by the bank to the borrower within a period of four weeks from the date....
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....case that he has sustained substantial injury by reason of such irregularity. Ground V of the Writ Petition does not even refer to substantial injury for the reason that is not the appellant's case that the property has been sold at a gross undervalue. No relief can be given in the Writ Petition so as to circumvent the statutory provisions contained in Rule 37(13) and (14). Ground VI is totally vague and lacking in particulars. A charge of malafides has to be made out with great clarity and particularity. Also, the Appellant cannot claim to be in the dark as every auction sale was publicly advertised in newspapers. We, therefore, do not accede to counsel's fervent plea to remit the rest of the Writ Petition to the High Court for hearing. 23. We therefore set aside the judgment under appeal as a whole. There will not be any order as to costs. 1(13) (a) Where immovable property has been sold by the Sale Officer, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may apply to have the sale set aside on his depositing with the recovery officer- (i) for payment to the purchaser a sum equal to ....