Dipak Misra, J.
1. In this appeal preferred under Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the substantiality and justifiability of the order dated 17 10 2007 passed by the learned Single Judge in W.P. No, 8499/07 is called In question by the appellant.
2. The facts which are essential to be stated for adjudication of this appeal are that the appellant and his brother are the owners of plot No. 23/2. admeasuring an area of 2621 sq. ft. situated at Block No. 31. On 18-6-2007 a show cause notice vide Annexure-P/2 was issued to the petitioner under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity 'the 2002 Act') for recovery of advance loan. The appellant-petitioner submitted his reply to the said notice issued by the respondent The Akola Janta Commercial Cooperative Bank Ltd. The Bank as per Annexure-P/3 issued a notice for auction of the property of the petitioner under the provisions contained in 2002 Act. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India the said notice was assailed on two counts, namely, (i) that the respondent is a Co-operative Bank and, therefore, the provisions of the 2002 Act are not applicable; and (ii) that the reply submitted by the petitioner has not been appositely considered by the Bank and auction notice has been issued in respect of the property for which it is vulnerable.
3. To substantiate the aforesaid stand reliance was placed on the decision rendered In Manoj Tarwala v. State of Madhya Pradesh and Ors. 2006 (3) MPHT 434 (DB) and Greater Bombay Co-operative Bank Ltd. v. United Yarn Tex. Pvt. Ltd. and Ors. : AIR2007SC1584 . The learned Single Judge took note of the definition of bank contained in Recovery of Debt Due lo Brinks rind Financial institutions Article (for short, '1903 Act'), the definition of bank as defined under 2002 Act and placing reliance on tin unreported decision of the Bombay High Court in Khaja Industries v. The State of Maharashtra and Ors. passed in W.P. No. 2672/07, decided on 3-7-2007 AIR 2008 (NOC) 44 (Bom) : 2007 (5) AIR Born R 722 expressed the opinion that the respondent-Bank is entitled under law to take action under the 2002 Act and, therefore, the writ petition being devoid of substance deserved to be dismissed. Being of this view the learned Single Judge directed dismissal of the writ petition.
4. Questioning the correctness of the order passed by the learned Single Judge Mr. Vipin Yadav, learned Counsel for the appellant has raised the following contentions:
(a) The learned Single Judge has fallen into grave error by distinguishing the decision rendered in Manoj Tarwala (supra) by the Division Bench of this Court though the same is directly on the issue inasmuch as in the said decision it has been clearly held that a co-operative bank is not a bank under the provisions of Clause (c) of Section 5 of the Banking Regulations Act, 1949.
(b) The order passed by the learned Single Judge is vulnerable inasmuch as he has failed to appreciate the ratio in Greater Bombay Co-operative Bank Ltd. AIR 2007 SC 1584 (supra) wherein the Apex Court has clearly held that the co-operative banks transacting business of banking do not fall within the meaning of 'banking company'. It is his further submission that the learned Single Judge should have appreciated the ratio on a studied appreciation of what has been stated in paragraphs 30 and 31 of the said decision.
(c) The learned Single Judge should have taken note of discussion of the Apex Court in paragraphs 30 and 31 of the decision to arrive at the conclusion that the respondent-bank cannot proceed under the 2002 Act and having not done so the order is sensitively susceptible.
5. Mr. Alok Aradhe, learned Senior Counsel resisting the aforesaid submissions canvassed the following proponements:
(i) The learned Single Judge has correctly distinguished the decision of Greater Bombay Co-operative Bank Ltd. AIR 2007 SC 1584 (supra) inasmuch as the Apex Court was dealing with the issue whether a co-operative bank is covered by Recovery of Debts Due to Banks and Financial Institutions, 1993 Act or not any reliance on paragraphs 30 and 31 of the said decision is misplaced and out of context as that is not a pronouncement under the 2002 Act. On the contrary, paragraphs 30, 31 and 59 of the decision supports the view that 2002 Act is applicable to the Co-operative banks for taking steps under the said enactment.
(ii) The decision in Manoj Tarwala (supra) has also dealt with the issue relating to applicability of 1993 Act to the co-operative banks and hence, the same has been soundly distinguished by the learned Single Judge and no fault can be found with the same.
(iii) The change brought out in the 2002 Act by the notification issued by the Central Government in exercise of power under Section 2(c)(v) of the Act does not confer a deemed status in the context of 1993 Act but brings within its umbrella the co-operative bank for the purpose of the said statute inasmuch as both the enactments operate in different realms and spheres altogether.
6. From the aforesaid rival submissions raised at the Bar it is luminescent that the centrlpodal question that emerges for adjudication whether the learned Single Judge is Justified in holding that the respondent, a co-operative bank, is entitled under law to take action under the 2002 Act against the appellant herein. Submission of Mr. Yadav, learned Counsel for the appellant is that if the principles laid down in Manoj Tarwala (supra) are properly understood and appreciated there can be no trace of doubt that a co-operative bank being not a banking company cannot take recourse to the provisions engrafted under 2002 Act. In the case of Manoj Tarwala (supra) a Division Bench of this Court while answering the reference made by the learned Single Judge in respect of the issue whether the co-operative Bank comes within the ambit and sweep of the 1993 Act has opined as under:
We agree with the aforesaid reasons of the Division Bench of the Raj as than High Court and hold that Parliament did not intend to Include recovery of debts due to the co-operative bank within the ambit and sweep of the 1993 Act. With great respect, we are unable to persuade ourselves to accept the view of the Division Bench of the Bombay High Court in the case of Shamrao Vithal Co-operative Bank Ltd. AIR 2003 Bom 205 (supra) and the view of the Full Bench of the Bombay High Court in the case of Narendra Kantilal Shah AIR 2004 Bom 166 (supra) that debts due to a co-operative bank would also come within the ambit and sweep of the 1993 Act. The conclusions in the Division Bench and the Full Bench judgments of the Bombay High Court are based on Section 56 in Part V of the 1949 Act, but as we have held above, by Section 56 in Part V of the 1949 Act, the provisions of the 1949 Act only are made applicable to co-operative societies carrying on banking business and the said Section 56 of the 1949 Act cannot be construed to mean that the provisions of the 1993 Act are also applicable to co-operative societies carrying on a banking business. For the aforesaid reasons, we are also unable to persuade our self to accept the conclusions of the Full Bench of the Andhra Pradesh High Court in M. Babu Rao AIR 2005 (NOC) (AP) 661 (supra), that recovery of debt to Rs. 10 lakhs or more by a co-operative bank is within the exclusive jurisdiction of the Tribunal constituted under the 1993 Act. The first question of law referred to us is answered accordingly.
7. In Greater Bombay Co-operative Bank Ltd. AIR 2007 SC 1584 (supra) the apex Court was dealing with the facet whether debts due to the co-operative banks constituted under the Co-operative Societies Act of the Maharashtra and Andhra Pradesh could be covered under the provisions of the 1993 Act. Their Lordships in paragraphs 88 and 89 have expressed the opinion as under:
88. For the reasons stated above and adopting pervasive and meaningful Interpretation of the provisions of the relevant Statutes and Entries 43, 44 and 45 of List I and Entry 32 of List II of the Seventh Schedule of the Constitution, we answer the Reference as under:
Co-operative banks' established under the Maharashtra Co-operative Societies Act 1960 MCS Act, 1960; the Andhra Pradesh Co-operative Societies Act 1964 APCS Act, 1964 and the Multi-State Co-operative Societies Act 2002 MSCS Act, 2002 transacting the business of banking, do not fall within the meaning of 'banking company' as defined in Section 5(c) of the Banking Regulations Act, 1949 (BR Act). Therefore, the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDB Act) by invoking the Doctrine of Incorporation are not applicable to the recovery of dues by the co-operatives from their members.89. The field of co-operative societies cannot be said to have been covered by the Central Legislation by reference to Entry 45, List I of the Seventh Schedule of the Constitution, Co-operative Banks constituted under the Co-operative Societies Act enacted by the respective Stales would be covered by cooperative societies by Entry 32 of List II of Seventh Schedule of the Constitution of India.
8. From the aforesaid decisions is it vivid that the Co-operative Bank is not a banking company and, therefore, it cannot recover its debts or dues by taking recourse to the 1993 Act as it is not a bank within the dictionary clause and the scheme of the 1993 Act. The fulcrum of the matter is whether the said decision can be taken aid of by the learned Counsel for the appellant to build an edifice for the conclusion that the 2002 Act is not applicable. Mr. Vipin Yadav, learned Counsel for the appellant has invited our attention to paragraphs 30 and 31 of the decision rendered in Greater Bombay Cooperative Bank Ltd. (supra) in which their Lordships were dealing with the 2002 Act. For proper appreciation it is thought appropriate to reproduce both the paragraphs;
30. The 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 21st day of June, 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) and one of which is 'banking company'. The Central Government is authorized by Section 2(c)(v) of the Act to specify any other bank for the purpose of the Act. In exercise of this power, the Central Government by Notification dated 28-1-2003, has specified 'co-operative bank' as defined in Section 5(cci) of the BR Act as a 'bank' by lifting the definition of 'co-operative bank' and 'primary co-operative bank' respectively from Section 56, Clauses 5(cci) and (ccv) of Part V. The Parliament has thus consistently made the meaning of 'banking company' clear beyond doubt to mean 'a company engaged in banking, and not a co-operative society engaged in banking' and in Act No. 23 of 1965, while amending the BR Act, it did not change the definition in Section 5(c) or even in 5(d) to include co-operative banks; on the other hand, it added a separate definition of 'cooperative bank' in Section 5(cci) and 'primary co-operative 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 'co-operative banks' by Notification dated 28-1-2003. The context of the interpretation clause plainly excludes the effect of a reference to banking company being construed as reference to a co-operative bank for three reasons; firstly. Section 5 is an interpretation clause; secondly, substitution of co-operative bank' for 'banking company' in the definition in Section 5(c) would result in an absurdity because then Section 5(c) would read thus 'co-operative Bank' means any company, which transacts the business of banking in India; thirdly, Section 56(c) does define 'co-operative bank' separately by expressly deleting/inserting Clause (cci) in Section 5. The Parliament in its wisdom had not altered or modified the definition of 'banking company' in Section 5(c) of the BR Act by Act No. 23 of 1965.
31. As noticed above, 'Co-operative Bank' was separately defined by the newly inserted Clause (cci) and 'primary co-operative bank' was similarly separately defined by Clause (ccv). The meaning of 'banking company' must, therefore, necessarily be strictly confined to the words used in Section 5(c) of the BR Act. If the intention of the Parliament was to define the 'co-operative bank' as 'banking company, it would have been the easiest way for the Parliament to say that 'banking company' shall mean 'banking company' as defined in Section 5(c) and shall include 'co-operative bank' and 'primary cooperative bank' as inserted in Clauses (cci) and (ccv) in Section 5 of Act 23 of 1965.
9. Submission of Mr. Alok Aradhe, learned Senior Counsel for the respondent is that the said paragraphs in fact, support the contention of the respondent-bank. It is urged by him that the Central Government has been authorised under Section 2(c)(v) of the 2002 Act to specify any other bank for the purpose of the Act and in exercise of the said power the Central Government by notification dated 28-1-03 has specified 'co-operative bank' as defined In Section 5(c)(cci) of the BR Act bank by lifting definition of the 'co-operative bank'.
10. Section 2(c) of the 2002 Act defines 'bank' as under:
(i) a banking company; or
(ii) a corresponding new bank; or
(iii) the State Bank of India; or
(iv) a subsidiary bank; or
(v) such other bank which the Central Government may, by notification, specify for the purposes of this Act.
11. Thus, Clause (v) empowers the Central Government by a notification to specify any other bank for the purposes of this Act. Thus, power has been conferred on the Central Government in the 2002 Act for including any other bank within the definition by issuing a notification and the Central Government has issued a notification and included co-operative banks for the purposes of the said Act. In this context, we may refer with profit to a Division Bench Judgment of the Bombay High Court in M/s. Khaja Industries (supra) wherein the Division Bench after referring to the decision rendered in Greater Bombay Co-operative Bank Ltd. (supra) and after referring to paragraphs 30, 34 and 59 has expressed the opinion to the effect that the co-operative banks can take action under the 2002 Act.
12. We are in entire agreement with the view expressed in the said decision.
13. In view of the aforesaid premises, we are of the considered opinion that the view expressed in Manoj Tarwala (supra) is not applicable as it was not a case relating to 2002 Act but with regard to forum under the 1993 Act and the status of the bank. In the case at hand the power has been exercised by the Central Government under the 2002 Act and the Apex Court has clearly stated that the Central Government is authorised by Section 2(c)(v) of the Act to specify any other bank for the purpose of the said Act.
14. In view of the aforesaid, we concur with the view expressed by the learned Single Judge and accordingly, we do not perceive any merit in the writ petition.
In the ultimate result, the appeal has to save the path of dismissal which we direct, There shall be no order as to costs.